[Federal Register Volume 61, Number 246 (Friday, December 20, 1996)]
[Rules and Regulations]
[Pages 67213-67215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32319]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-019-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 a proposed amendment to the Oklahoma 
regulatory program (hereinafter referred to as the ``Oklahoma 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Oklahoma proposed revisions to and additions of regulations 
pertaining to repair or compensation for material damage resulting from 
subsidence caused by underground coal mining operations and to 
replacement of water supplies adversely impacted by underground coal 
mining operations. The amendment is intended to revise the Oklahoma 
program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: December 20, 1996.

FOR FURTHER INFORMATION CONTACT:
Jack R. Carson, Acting 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.

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. Background information on the Oklahoma 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the January 
19, 1981, Federal Register (46 FR 4902). Subsequent actions concerning 
the conditions of approval and program amendments can be found at 30 
CFR 936.15 and 936.16.

II. Submission of the Proposed Amendment

    On March 31, 1995, OSM promulgated rules to implement new section 
720 of SMCRA, 30 U.S.C. 1201 et seq. Section 720, which took effect on 
October 24, 1992, as part of the Energy Policy Act of 1992, Public Law 
102-486, 206 Stat. 2776, requires all underground coal mining 
operations conducted after October 24, 1992, to promptly repair or 
compensate for material damage caused by subsidence to noncommercial 
buildings and occupied residential dwellings and related structures. It 
also requires the replacement of drinking, domestic, and residential 
water supplies that have been adversely impacted by underground coal 
mining operations conducted after that date.
    By letter dated July 17, 1996 (Administrative Record No. OK-975), 
Oklahoma submitted a proposed amendment to its program pursuant to 
SMCRA. Oklahoma submitted the proposed amendment in response to a May 
20, 1996, letter (Administrative

[[Page 67214]]

Record No. OK-976) that OSM sent to Oklahoma in accordance with 30 CFR 
732.17(c) concerning the changes which resulted from the enactment of 
section 720 of SMCRA and the promulgation of implementing Federal 
regulations.
    Specifically, Oklahoma proposed to revise the Oklahoma Coal Rules 
and Regulations at Oklahoma Administrative Code (OAC) 460:20-3-5, 
Definitions; OAC 460:20-31-7, Hydrologic information; OAC 460:20-31-13, 
Subsidence control plan; OAC 460:20-45-8, Hydrologic-balance 
protection; and OAC 460:20-45-47, Subsidence control.
    OSM announced receipt of the proposed amendment in the August 2, 
1996, Federal Register (61 FR 40369), 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 September 3, 1996.
    During its review of the amendment, OSM identified a concern 
relating to OAC 460:20-3-5, Definitions. Oklahoma had not proposed a 
definition for ``occupied residential dwelling and structures related 
thereto.'' This definition was required in OSM's May 20, 1996, letter 
to Oklahoma. OSM notified Oklahoma of this concern by letter dated 
August 20, 1996 (Administrative Record No. 975.12). Oklahoma responded 
in a letter dated August 28, 1996 (Administrative Record No. 975.06), 
by submitting a revised amendment.
    Based upon the additional revision to the proposed program 
amendment submitted by Oklahoma, OSM reopened the public comment period 
in the September 19, 1996, Federal Register (61 FR 49284). The public 
comment period closed on October 4, 1996.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes, or revised cross-references and paragraph notations to 
reflect organizational changes resulting from this amendment.

1. Revisions to Oklahoma's Regulations That Are Substantively Identical 
to the Corresponding Provisions of the Federal Regulations

    The proposed State regulations listed in the table contain language 
that is the same as or similar to the corresponding sections of the 
Federal regulations. Differences between the proposed State regulations 
and Federal regulations are nonsubstantive.

----------------------------------------------------------------------------------------------------------------
     State regulation OAC                            Subject                         Federal regulation 30 CFR  
----------------------------------------------------------------------------------------------------------------
460:20-3-5                      Definition of ``Drinking, domestic or residential  701.5.                       
                                 water supply''.                                                                
460:20-3-5                      Definition of ``Non-commercial building''........  701.5                        
460:20-3-5                      Definition of ``Occupied residential dwelling and  701.5.                       
                                 structures''.                                                                  
460:20-3-5                      Definition of ``Replacement of water supply''....  701.5.                       
460:20-31-7(e)(3)(D)            Hydrologic information; Probable hydrologic        784.14(e)(3)(iv).            
                                 consequences determination.                                                    
460:20-31-13(a)                 Presubsidence survey.............................  784.20(a).                   
460:20-31-13(b)                 Subsidence control plan..........................  784.20(b).                   
460:20-45-8(j)                  Hydrologic-balance protection; Drinking, domestic  CFR 817.41(j).               
                                 or residential water supply.                                                   
460:20-45-47(a)                 Subsidence control; Operator measures to prevent   817.121(a).                  
                                 or minimize damage.                                                            
460:20-45-47(c)                 Subsidence control; Repair of damage to surface    817.121(c).                  
                                 lands.                                                                         
----------------------------------------------------------------------------------------------------------------

    Because the above proposed revisions are identical in meaning to 
the corresponding Federal regulations, the Director finds that 
Oklahoma's proposed regulations are no less effective than the Federal 
regulations.

2. Revisions to Oklahoma's Regulations That Are Not Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

    OAC 460:20-3-5, Definition of ``Material Damage'' Oklahoma proposed 
the following definition for the term ``material damage.''

    ``Material damage'' means any functional impairment of surface 
lands, features, structures or facilities. The material damage 
threshold includes: (A) Any physical change that has a significant 
adverse impact on the affected land's capability to support any 
current or reasonably foreseeable uses or causes significant loss in 
production or income; or (B) Any significant change in the 
condition, appearance or utility of any structure or facility from 
its pre-subsidence condition. (C) Any situation in which an imminent 
danger to a person would be created.

    The proposed definition contains provisions in the introductory 
sentence, (A), and (B) that are the same as the three substantive 
provisions in the Federal definition for ``material damage'' at 30 CFR 
701.5. It, also, contains one additional provision at (C) pertaining to 
imminent danger that is consistent with the March 31, 1995, preamble 
discussion of the Federal definition (62 FR 16722). In the preamble 
discussion of the Federal definition, OSM stated that the material 
damage threshold ``* * * would also include any situation in which an 
imminent danger to a person would be created.''
    Based on the above discussion, the Director finds that Oklahoma's 
definition of ``material damage'' at OAC 460:20-3-5 is not inconsistent 
with the Federal definition at 30 CFR 701.5. Therefore, it is no less 
effective than the Federal definition, and it is approved.

IV. Summary and Disposition of Comments

Public Comments

    The Director 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 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Oklahoma program. By letters 
dated August 9, 1996, and October 1, 1996 (Administrative Record Nos. 
OK-975.05 and OK-975.11), the U.S. Army Corps of Engineers responded 
that its review found the changes to be satisfactory.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(i), OSM is required to obtain the 
written

[[Page 67215]]

concurrence of the EPA with respect to those provisions of the proposed 
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, OSM did not request EPA's 
concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (Administrative Record No. OK-975.03 and 
OK-975.08). EPA did not respond to OSM's requests.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit 
comments on proposed amendments which may have an effect on historic 
properties from the SHPO and ACHP. OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (Administrative Record No. 
OK-975.02 and OK-975.09). Neither SHPO nor ACHP responded to OSM's 
requests.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Oklahoma on July 17, 1996, and as revised on 
August 28, 1996.
    The Director approves, as discussed in: Finding No. 1, OAC 460:20-
3-5, concerning definitions for ``drinking, domestic or residential 
water supply''; ``non-commercial building''; ``occupied residential 
dwelling and structures''; and ``replacement of water supply''; OAC 
460:20-31-7(e)(3)(D), concerning the probable hydrologic consequences 
determination; OAC 460:20-31-13(a), concerning a presubsidence survey; 
OAC 460:20-31(b), concerning the subsidence control plan; OAC 460:20-
45-8(j), concerning replacement of drinking, domestic or residential 
water supply; OAC 460:20-45-47(a), concerning subsidence control 
measures to prevent or minimize damage; and OAC 460:20-45-47(c), 
concerning repair of damage to surface lands; finding No. 2, OAC 
460:20-3-5, concerning a definition for ``material damage.''
    The Director approves the regulations as proposed by Oklahoma with 
the provision that they be fully promulgated in identical form to the 
regulations submitted to and reviewed by OSM and the public.
    The Federal regulations at 39 CFR Part 936, codifying decisions 
concerning the Oklahoma program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This 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 regulatory programs and program amendments since each such 
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

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed 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. Accordingly, 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 corresponding Federal regulations.

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: November 27, 1996.
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 937 continues to read as 
follows:

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

    2. Section 936.15 is amended by adding paragraph (s) to read as 
follows:


Sec. 936.15  Approval of regulatory program amendments.

* * * * *
    (s) Revisions to the following provisions of the Oklahoma Coal 
Rules and Regulations, as submitted to OSM on July 17, 1996, and as 
revised on August 28, 1996, are approved effective December 20, 1996.

OAC 460:20-3-5--Definitions
OAC 460:20-31-7(e)(3)(D)--Hydrologic information
OAC 460:20-31-13 (a) & (b)--Subsidence control plan
OAC 460:20-45-8(j)--Hydrologic-balance protection
OAC 460:20-45-47 (a) & (c)--Subsidence control.

[FR Doc. 96-32319 Filed 12-19-96; 8:45 am]
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