[Federal Register Volume 63, Number 32 (Wednesday, February 18, 1998)]
[Rules and Regulations]
[Pages 8123-8126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3915]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-023-FOR]


Oklahoma Abandoned Mine Land Reclamation Plan

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 
abandoned mine land reclamation plan (hereinafter referred to as the 
``Oklahoma plan'') under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The amendment is intended to revise the Oklahoma plan 
to allow the State to assume responsibility for administering an 
emergency response reclamation program in Oklahoma on behalf of OSM.

EFFECTIVE DATE: February 18, 1998.

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 74135-6547, 
Telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION: 
I. Background on the Oklahoma Plan
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 Plan

    On January 21, 1982, the Secretary of the Interior approved the 
Oklahoma plan. Background information on the Oklahoma plan, including 
the Secretary's findings, the disposition of comments, and the approval 
of the plan can be found in the January 21, 1982, Federal Register (46 
FR 2989). Subsequent actions concerning the Oklahoma plan and 
amendments to the plan can be found at 30 CFR 936.25.

II. Submission of the Proposed Amendment

    Section 410 of SMCRA authorizes the Secretary to use funds under 
the abandoned mine land reclamation (AMLR) program to abate or control 
emergency situations in which adverse effects of past coal mining pose 
an immediate danger to the public health, safety, or general welfare. 
On September 29, 1982, (47 FR 42729) OSM invited States to amend their 
AMLR plans for the purpose of undertaking emergency reclamation 
programs on behalf of OSM. States would have to demonstrate that they 
have the statutory authority to undertake emergencies, the technical 
capability to design and supervise the emergency work, and the 
administrative mechanisms to quickly respond to emergencies either 
directly or through contracts.
    Under the provisions of 30 CFR 884.15, any State may submit 
proposed amendments to its approved AMLR plan. If the proposed 
amendments change the scope or major policies followed by the State in 
the conduct of its AMLR program, OSM must follow the procedures set out 
in 30 CFR 884.14 in reviewing and approving or disapproving the 
proposed amendments.
    The proposed assumption of the AMLR emergency program on behalf of 
OSM is a major addition to the Oklahoma AMLR plan. Therefore, to assume 
the emergency program, Oklahoma must either revise the Oklahoma plan to 
include conducting the AMLR emergency program, or demonstrate that its 
plan currently includes provisions for assuming and conducting the 
emergency program.
    By letter dated November 3, 1997 (Administrative Record No. OAML-
77), Oklahoma submitted a proposed amendment to its plan pursuant to 
SMCRA. Oklahoma submitted the proposed amendment on its own initiative. 
The amendment was intended to demonstrate Oklahoma's capability to 
effectively perform the AMLR emergency program on behalf of OSM. A 
brief description of the amendment is presented below.
    A. The proposed amendment would allow Oklahoma to assume the 
administration of the AMLR emergency program in Oklahoma on behalf of 
OSM. In its formal submittal, Oklahoma stated that in 1982, as part of 
its approved State Abandoned Mine Land Program, the Oklahoma 
Conservation Commission (OCC) incorporated the necessary language to 
assume responsibility of the AMLR emergency program at a later date. 
The following information, taken from the approved Oklahoma plan, was 
included in Oklahoma's formal submission to OSM to verify that the 
authority already exists for the OCC to assume AMLR emergency program 
responsibilities:
    1. A letter from the Governor that designates the OCC as the agency 
responsible for the Abandoned Mine Land Reclamation Program in 
Oklahoma.
    2. A legal opinion from the Attorney General that the OCC has the 
power to

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administer the Abandoned Mine Land Reclamation Program in Oklahoma.
    3. A copy of the Oklahoma Abandoned Mine Reclamation Act (45 O.S., 
sections 740.1 through 740.7).
    Section 740.7(A) authorizes OCC to spend monies from the State 
Abandoned Mine Reclamation Fund for emergency restoration, reclamation, 
abatement, control or prevention of adverse effects of coal mining 
practices on eligible land if it finds that an emergency exists 
constituting a danger to the public health, safety or general welfare 
and no other person or agency will act expeditiously to restore, 
reclaim, abate, control or prevent the adverse effects of coal mining 
practices. Section 740.7(B) authorizes the OCC to enter on any land 
where an emergency exists and any other necessary access land to 
restore, reclaim, abate, control or prevent the adverse effects of coal 
mining practices and do all things necessary or expedient to protect 
the public health, safety or general welfare.
    4. A copy of the Oklahoma Abandoned Mine Land Reclamation Program 
(Oklahoma Administrative Code (OAC) 155:15-1-1 through 155:15-1-16).
    Oklahoma's regulations at OAC 155:15-1-8(e) provide procedures for 
emergency studies or reclamation.
    5. A copy of section 884.13(c)(6) of the Oklahoma plan concerning 
entry for emergency study and reclamation.
    6. A copy of section 884.13(e) of the Oklahoma plan concerning 
public participation in Oklahoma's AMLR program.
    B. After assuming the emergency program, Oklahoma would conduct 
investigations of potential emergency sites, and following OSM 
concurrence that emergency situations exist, perform remedial 
reclamation.
    OSM announced receipt of the proposed amendment in the December 15, 
1997, Federal Register (62 FR 65632), 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 January 14, 1998.
    During its review of the amendment, OSM identified concerns 
relating to emergency contracting procedures, statutory authority and 
administrative procedures. OSM notified Oklahoma of these concerns by 
telefax dated December 19, 1997 (Administrative Record No. OAML-77.06). 
By letter dated December 19, 1997 (Administrative Record No. OAML-
77.05), Oklahoma responded to OSM's concerns by submitting additional 
explanatory information regarding its proposed plan amendment. Because 
the additional information merely clarified certain provisions of 
Oklahoma's approved reclamation plan and program, OSM did not reopen 
the public comment period.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 884.14 and 884.15, are the Director's findings concerning the 
proposed amendment.
    OSM's guidelines, published in the September 29, 1982, Federal 
Register (47 FR 42729), outline three requirements for state assumption 
of the AMLR emergency program. To be granted emergency authority by 
OSM, the State agency must demonstrate that it has the (1) Statutory 
authority to undertake emergencies, (2) technical capability to design 
and supervise the emergency work, and (3) administrative mechanisms to 
respond quickly to emergencies either directly or through contractors.

A. Statutory Authority

    The OCC has had statutory authority to administer an emergency 
response program since approval of the original reclamation plan. In a 
letter dated September 25, 1978 (Administrative Record No. OAML-77), 
the Governor of Oklahoma designated the Oklahoma Conservation 
Commission (OCC) as the agency responsible for the Abandoned Mine Land 
Reclamation Program under Title IV, Pub. L. 95-87. Title IV of Pub. L. 
95-87 covers both the regular AML program and the emergency reclamation 
program. The Oklahoma Attorney General issued an official opinion (78-
267) on November 16, 1978 (Administrative Record No. OAML-77), which 
states that the ``OCC and the Conservation Districts have the power to 
administer the state program aspects of Title IV of the Federal Surface 
Mining Control and Reclamation Act of 1977.'' A subsequent official 
opinion by the Oklahoma Attorney General (81-211) issued on August 13, 
1981 (Administrative Record No. OAML-77.05), states that (1) ``The OCC 
has express statutory authority to administer an abandoned mine land 
reclamation program within the contemplation of Title IV of the Surface 
Mining Control and Reclamation Act of 1977, Pub. L. 95-87,'' and (2) 
``The Conservation Districts are not authorized to administer the state 
program aspects of SMCRA pertaining to abandoned mine reclamation.''

B. Technical Capability

    The OCC has demonstrated through past performance that it has the 
technical capability to implement an AMLR emergency program. Oklahoma 
asserted in its November 3, 1997, submission of the formal amendment 
that, ``For the last 4 years, the OCC AML Program has concentrated on 
the elimination of underground mine openings and subsidence problems 
(non emergency) in LeFlore County. With this work in LeFlore County and 
the close working relationship with OSM on past AML emergencies, the 
OCC AML staff believes it is time to assume responsibility for the AML 
Emergency Program.''
    Oklahoma has conducted an AMLR Program since 1982. Technical 
capabilities utilized for emergency reclamation projects are the same 
as those used for normal, high priority reclamation projects; usually, 
only the project schedule is different. OSM annual oversight reports 
for evaluation years 1991 to 1996 indicate that Oklahoma successfully 
implements the high priority AMLR program. The oversight reports 
indicate that closure of mine portals and shafts, and treament of 
subsidenace areas have been part of the high priority AMLIR program 
since at least 1991. As of the end of evaluation year 1996, OCC had 
closed 89 vertical openings and 140 open mine portals, and stabilized 
8.1 acres of mine subsidence. These are the same types of abandoned 
mine land features that are likely to be encountered in the AMLR 
emergency program.

C. Administrative Mechanisms

    On December 19, 1997, OSM requested by telephone and followed up by 
telefax, a description of the emergency response contracting procedures 
available to the OCC to respond to contract needs. OCC replied to OSM 
by letter dated December 19, 1997, outlining the emergency response 
contracting procedures. In summary, the OCC Executive Director has the 
authority to issue contracts for emergency work in amounts up to 
$25,000, the same day as an emergency problem is identified. Contracts 
larger than $25,000 may be issued after an emergency Board Meeting of 
the OCC Commissioners. OSM finds that the $25,000 limit is similar to 
the small purchase threshold for Federal agencies and will allow the 
OCC adequate flexibility to address emergency conditions. Other 
administrative processes required to implement the emergency program 
are the same as

[[Page 8125]]

those already in place for the Oklahoma AML Program.
    OSM's review of Oklahoma's AMLR plan, Oklahoma's emergency response 
contracting procedures, and OSM's annual oversight reports for 1991 
through 1996, found that OCC has developed and refined the in-house 
investigation, design and project administration abilities necessary to 
administer an AML program and an emergency response program.
    In accordance with section 405 of SMCRA, the Director finds that 
Oklahoma has submitted an amendment to its AMLR plan and has 
determined, pursuant to 30 CFR 884.15, that:
    1. The public has been given adequate notice and opportunity to 
comment, and the record does not reflect major unresolved 
controversies.
    2. Views of other Federal agencies have been solicited and 
considered.
    3. The State has the legal authority, policies and administrative 
structure necessary to implement the amendment.
    4. The proposed plan amendment meets all requirements of the OSM 
AMLR program provisions.
    5. The State has an approved Surface Mining Regulatory Program.
    6. The amendment is in compliance with all applicable State and 
Federal laws and regulations.
    Therefore, the Director finds that the proposed Oklahoma plan 
amendment allowing the State to assume responsibility for an emergency 
response reclamation program on behalf of OSM is in compliance with 
SMCRA and meets the requirements of the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    OSM 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 884.14(a)(2) and 884.15(a), the Director solicited 
comments on the proposed amendment from various other Federal agencies 
with an actual or potential interest in the Oklahoma plan. The U.S. 
Army Corps of Engineers responded by letter dated December 24, 1997 
(Administrative Record No. OAML-77.07), stating it had no comments. No 
other comments were received.

V. Director's Decision

    Based on the above findings, the Director is approving Oklahoma's 
request to assume the AMLR emergency program as submitted by Oklahoma 
on November 3, 1997.
    The Federal Regulations at 30 CFR Part 936, codifying decisions 
concerning the Oklahoma plan, are being amended to implement this 
decision. The final rule is being made effective February 18, 1998.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 884.15(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. In the oversight of the Oklahoma program, the 
Director will recognize only the statutes, regulations and other 
materials approved by OSM, together with any consistent implementing 
policies, directives and other materials, and will require the 
enforcement by Oklahoma of only such provisions.

VI. Procedural Determinations

Executive Order 12866

    This proposed 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 and Tribal abandoned mine land reclamation plans and revisions 
thereof since each such plan is drafted and promulgated by a specific 
State or Tribe, not by OSM. Decisions on proposed abandoned mine land 
reclamation plans and revisions thereof submitted by a State or Tribe 
are based on a determination of whether the submittal meets the 
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Part 
884.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
agency decisions on proposed State and Tribal abandoned mine land 
reclamation plans and revisions thereof are categorically excluded from 
compliance with the National Environmental Policy Act (42 U.S.C. 4332) 
by the Manual of the Department of the Interior (516 DM 6, appendix 8, 
paragraph 8.4B(29)).

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 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.
    In making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions in the analyses for the corresponding Federal regulations.

Unfunded Mandates

    OSM has determined and certifies pursuant to 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: February 10, 1998.
Kathy Karpan,
Director, Office of Surface Mining.
    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 936.25 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:

[[Page 8126]]

Sec. 936.25  Approval of Oklahoma abandoned mine land reclamation plan 
amendments.

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  Original amendment submission date     Date of final publication               Citation/description           
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      *                   *                   *                   *                   *                   *     
                                                           *                                                    
November 3, 1997.....................  February 18, 1998............  Emergency response reclamation program.   
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[FR Doc. 98-3915 Filed 2-17-98; 8:45 am]
BILLING CODE 4310-05-M