[Federal Register Volume 63, Number 202 (Tuesday, October 20, 1998)]
[Proposed Rules]
[Pages 55979-55983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28123]


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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: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt of an amendment to the Oklahoma 
regulatory program (Oklahoma program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA). Oklahoma proposes revisions to and 
additions of rules concerning burden of proof in civil penalty 
proceedings, petitions for review of proposed individual civil penalty 
assessment, 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 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.
    This document gives the times and locations that the Oklahoma 
program and the amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that will be followed for 
the public hearing, if one is requested.

DATES: We will accept written comments until 4:00 p.m., c.s.t., 
November 19, 1998. If requested, we will hold a public hearing on the 
amendment on November 16, 1998. We will accept requests to speak at the 
hearing until 4:00 p.m., c.s.t. on November 4, 1998.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Michael C. Wolfrom, Director, Tulsa 
Field Office, at the address listed below.
    You may review copies of the Oklahoma program, the amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Tulsa Field Office.
    Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547, 
Telephone: (918) 581-6430.
    Oklahoma Department of Mines, 4040 N. Lincoln Blvd., Suite 107, 
Oklahoma City, Oklahoma 73105, Telephone: (405) 521-3859.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

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. Description of the Proposed Amendment

    By letter dated September 28, 1998 (Administrative Record No. OK-
982), Oklahoma sent us an amendment to its

[[Page 55980]]

program under SMCRA. Oklahoma sent the amendment in response to our 
letter dated January 6, 1994 (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. Oklahoma proposes to amend 
the Oklahoma Administrative Code. Below is a summary of the changes 
proposed by Oklahoma. The full text of the program amendment is 
available for your inspection at the locations listed above under 
ADDRESSES.

1. 460:2-7-6, Burden of Proof in Civil Penalty Proceedings

    Oklahoma proposes to remove the burden of persuasion as to the fact 
of violation from the Department of Mines and place it on the 
applicant.

2. 460:2-8, Petitions for Review of Proposed Individual Civil Penalty 
Assessment

    Oklahoma proposes to add a new Subchapter 8 to Chapter 2 of the 
Oklahoma Administrative Code. Section 1 of Subchapter 8 states that 
this Subchapter governs administrative review of proposed individual 
civil penalty assessments under Chapter 20, against a director, 
officer, or agent of a corporation. Section 2 clarifies that any 
individual served with a notice of proposed individual civil penalty 
assessment may file a petition for review, and provides an address 
where the individual may file the petition. Section 3 provides that an 
individual must file a petition within 30 days of notice. It also 
states that the Department of Mines will not grant any extensions to 
this time period. The Department considers failure to file as an 
admission of liability. Section 4 requires that an individual filing a 
petition provide a statement of the facts entitling him or her to 
relief, a copy of the notice of proposed assessment, a copy of the 
notice(s) of violation, order(s) or final decision(s) the individual 
has been served with, and a statement whether the individual requests 
or waives the opportunity for an evidentiary hearing. This section also 
requires that copies of the petition be served to all affected persons. 
Section 5 states that within 30 days of receipt of a petition, the 
Department must file an answer or motion, or provide a statement that 
it will not file an answer or motion, to the Hearing Officer. Section 6 
reads as follows:

    (a) An individual filing a petition may amend it once as a 
matter of right before receipt by the individual of an answer, 
motion, or statement of the Department made in accordance with 
460:2-8-5 of this subchapter. Thereafter, a motion for leave to 
amend the petition shall be filed with the Hearing Officer.
    (b) The Department shall have 30 days from receipt of a petition 
amended as a matter of right to file an answer, motion, or statement 
in accordance with Section 460:2-8-5 of this Subchapter. If the 
Hearing Officer grants a motion to amend a petition, the time for 
the Department to file an answer, motion, or statements shall be set 
forth in the order granting the motion to amend.

    Section 7 requires the Hearing Officer to give notice of the time 
and place of the hearing to all interested parties. It further requires 
that the hearing be of record and governed by O.S. Title 75, the 
Administrative Procedures Act. Section 8 reads as follows:

    (a) The Department shall have the burden of going forward with 
evidence to establish a prima facie case that:
    (1) A corporate permittee either violated a condition of a 
permit or failed or refused to comply with an order issued under 45 
O. S. 1981, Section 724. et seq., or an order incorporated in the 
final decision of the Director, (except an order incorporated in a 
decision issued under sections 45 O. S. Subsection 769 (b) of the 
Act or implementing regulations), unless the fact of violation or 
failure or refusal to comply with an order has been upheld in a 
final decision in a proceeding under Sections 2-7-1 through 2-7-9, 
2-9-2 through 2-9-12, or Sections 2-11-1 through 2-11-8, and 
Sections 2-19-1 or 2-39-2 of this Chapter, and the individual is one 
against whom the doctrine of collateral estoppel may be applied to 
prelude relitigation of fact issues;
    (2) The individual, at the time of the violation, failure or 
refusal, was a director, officer, or agent of the corporation; and
    (3) The individual willfully and knowingly authorized, ordered, 
or carried out the corporate permittee's violation or failure or 
refusal to comply.
    (b) The individual shall have the ultimate burden of persuasion 
by a preponderance of the evidence as to the elements set forth in 
(a) (1) of this section and as to whether he was a director or 
officer of the corporation at the time of the violation or refusal.
    (c) The Department shall have the ultimate burden of persuasion 
by a preponderance of the evidence as to whether the individual was 
an agent of the corporation, as to (a) (3) of this section, and as 
to the amount of the individual civil penalty.

    Section 9 requires that the Hearing Officer issue a written 
decision on those elements required by Section 8 of this Subchapter. If 
the Hearing Officer concludes that the individual is liable for an 
individual civil penalty, he shall order the individual to pay the 
penalty required under 460:20-63-6, as long as no affected party 
petitions the Department Director to review the Officer's decision. 
Finally, section 10 provides that any affected party may petition the 
Department Director to review an order or decision by the Hearing 
Officer. The petition must be filed on or before 30 days from the date 
of receipt of the order or decision sought to be reviewed, and the time 
for filing will not be extended. A petition must list the alleged 
errors of the Hearing Officer and have a copy of the order or decision 
sought to be reviewed attached to it. Any affected party may file with 
the Director a response to the petition for review within 10 days of 
receipt of a copy of such petition. The Director must grant or deny the 
petition in whole or in part within 30 days of the filing of the 
petition. If the petition for review is granted, the rules in 460:2-19-
4 through 460:2-19-7 apply. If the petition is denied, the decision of 
the Hearing Officer is final subject to 460:2-1-3 and payment of a 
penalty is due.

3. 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.

4. 460:20-15-11, Verification of Ownership or Control Application 
Information

    Oklahoma proposes to add a new section 11 to Subchapter 15 to read 
as follows:

    (a) Prior review. In accordance with Section 460:20-15-6(c)(1) 
of this Subchapter, prior to the issuance of a permit, the 
Department shall review the information in the application provided 
pursuant to Section 460:20-23-2 of this Chapter to determine that 
such information, including the identification of the operator and 
all owners and controllers of the operator, is complete and 
accurate. In making such determination, the Department shall compare 
the information provided in the application with information from 
other reasonable available sources, including:
    (1) Manual data sources within Oklahoma including: (A) The 
Department's inspection and enforcement records; and (B) The state 
incorporating records or tax records, to the extent they contain 
information concerning ownership or control links; and
    (2) Automated data sources, including: (A) The Department's own 
computer systems; and (B) The Applicant Violator System (AVS).
    (b) Application inquiry. If it appears from the information 
provided in the application pursuant to Section 460:20-23-3(c) 
through (d) of this Chapter that none of the persons identified in 
the application has had any previous mining experience, the 
Department shall inquire of the applicant and investigate whether 
any person other than those identified in the application will own 
or

[[Page 55981]]

control the operation (as either an operator or other owner or 
controller).
    (c) Review results. If, as a result of the review conducted 
under paragraphs (a) and (b) of this section, the Department 
identifies any potential omission, inaccuracy, or inconsistency in 
the ownership or control information provided in the application, it 
shall, prior to making a final determination with regard to the 
application, contact the applicant and require that the matter be 
resolved through submission of: (1) An amendment to the application 
or (2) A satisfactory explanation which includes credible 
information sufficient to demonstrate that no actual omission, 
inaccuracy, or inconsistency exists. (3) The Department shall also 
take action in accordance with the provisions of Subchapter 59 of 
this Chapter where appropriate.
    (d) Review completion. Upon completion of the review conducted 
under this section, the Department shall promptly enter into or 
update all ownership or control information on AVS.

4. 460:20-15-12, Review of Ownership or Control and Violation 
Information.

    Oklahoma proposes to add a new section 12 to Subchapter 15. 
Paragraph (a) requires the Department to review all available 
information concerning violation notices and ownership or control links 
involving the application to determine whether the application can be 
approved. The reviewed information with respect to ownership and 
control links involving the applicant must include all information 
obtained under Section 460:20-15-11 and 460:20-23-3. The reviewed 
information with respect to violation notices must include all 
information obtained under section 460:20-23-3, information obtained 
from the OSM, and information obtained from the Department's records. 
Paragraph (b) requires that the Department notify the applicant if it 
finds any ownership or control links between the applicant and any 
person cited in a violation notice and refer him or her to the 
authority with jurisdiction over said violation. The Department can not 
approve the application unless and until it determines that all 
ownership or control links between the applicant and any person cited 
in a violation notice are erroneous or have been rebutted, or that the 
violation has been corrected, is in the process of being corrected, or 
is the subject of a good faith appeal. Paragraph (c) of this section 
requires the Department to enter into the AVS all relevant information 
related to its decision or withdrawal of the application.

5. 460:20-15-13, Procedures for Challenging Ownership or Control Links 
Shown in AVS

    Oklahoma proposes to add a new section 13 in Subchapter 15. 
Paragraph (a) provides that any applicant or other person shown in the 
AVS in an ownership or control link to any person can challenge the 
link under paragraphs (b) through (d) and Section 460:20-15-14, unless 
they are bound by a prior administrative or judicial determination 
concerning the link. Paragraph (a) also provides that any applicant or 
other person shown in the AVS in an ownership or control link to any 
person cited in a State violation notice can challenge the status of 
the violation under paragraphs (b) through (d) and Section 460:20-15-
14, unless they are bound by a prior administrative or judicial 
determination concerning the status of the violation. Paragraph (b) 
provides that an ownership or control link or the status of a State 
violation can be challenged by submitting a written explanation of the 
basis for the challenge, along with any relevant evidentiary materials 
and supporting documents to the Department. Paragraph (c) requires the 
Department to review any submitted information and decide in writing 
whether the ownership or control link is erroneous, has been rebutted, 
and/or remains outstanding, has been corrected, is in the process of 
being corrected, or is the subject of a good faith appeal. Paragraph 
(d) requires the Department to update the AVS and notify the applicant 
or other person and, if the application is pending, the reviewing 
authority, if the Department determines that the ownership or control 
link has been shown to be erroneous, rebutted and/or that the violation 
covered by the notice has been corrected, is in the process of being 
corrected, or is the subject of a good faith appeal. The Department 
must serve a copy of the decision on the applicant or other person by 
certified mail, or by any means consistent with the rules governing 
service of a summons and complaint under Chapter 2, Rules of Practice 
and Procedure. Service will be complete upon tender of the notice or of 
the mail and will not be deemed incomplete because of a refusal to 
accept. The applicant or other person may appeal a decision of the 
Department to formal review to the Department's Legal Division for 
hearing and appeal within 30 days of service of the decision in 
accordance with Chapter 20, The Permanent Program Regulations Governing 
the Coal Reclamation Act of 1979 and Chapter 2, Rules of Practice and 
Procedure for the Coal Reclamation Act of 1979. The Department's 
decision will remain in effect during the pendency of the appeal, 
unless temporary relief is granted in accordance with Chapter 20, 
Chapter 2, and the Oklahoma Statutes Title 45.

6. 460:20-15-14. Standards for Challenging Ownership or Control Links 
and the Status of Violations

    Oklahoma proposes to add a new section 14 to Subchapter 15 to read 
as follows:

    (a) Application. The provisions of this section shall apply 
whenever a person has and exercises a right, under the provisions of 
Sections 460:20-15-9, 460:20-15-10, 460:20-15-12, or 460:20-15-13 of 
this Subchapter or under the provision of Subchapter 19 of this 
Chapter, to challenge:
    (1) An ownership or control link to any person; and/or
    (2) The status of any violation covered by a notice.
    (b) Responsibility. It is the responsibility of the Department 
of Mines to undertake the following duties pursuant to ownership 
and/or control relationships:
    (1) Except as provided in paragraph (b) (3) of this Section, the 
Department is responsible for: (A) The Department has the 
responsibility for making decisions with respect to ownership or 
control relationship of all pending applications. (B) Upon permit 
issuance, the Department is responsible for making all decisions 
with respect to the ownership or control relationships of that 
permit. (C) The Department shall have the responsibility for making 
decisions with respect to the ownership or control relationships of 
all violations contained in notice of violations issued by the 
Department. (D) The Department upon issuance of a notice of 
violation shall have the responsibility for making decision 
concerning the status of the violation covered by the notice of 
violation. (i.e., whether the violation remains outstanding, has 
been corrected, is in the process of being corrected, or is the 
subject of a good faith appeal, within the meaning of Section 
460:20-15-6 (b) (1) of this Subchapter.)
    (2) The Office of Surface Mining shall have responsibility for 
making decisions with respect to ownership of control relationships 
of a federal notice of violation.
    (c) Evidentiary standards. The Department shall conduct formal 
and informal reviews in the following manner:
    (1) In any formal or informal review of an ownership or control 
link or of the status of a violation covered by a violation notice, 
the Department shall make a prima facie determination or showing 
that such link exists, existed during the relevant period, and/or 
that the violation covered by such notice remains outstanding. Once 
such a prima facie determination or showing has been made, the 
person challenging such link or the status of the violation shall 
have the burden of proving by a preponderance of the evidence, with 
respect to any relevant time period the following: (A) That the 
facts relied upon by the Department to establish

[[Page 55982]]

ownership or control under the definition of ``owned and 
controlled'' or owns and controls in Section 460:20-15-2 of this 
Subchapter do not or did not exist; or (B) That a person subject to 
a presumption of ownership or control under the definition of 
``owned or controlled'' or ``owns or controls'' in Section 460:20-
15-2 of this Subchapter, do not or did not exist; (C) That a person 
subject to a presumption of ownership or control under the 
definition of ``owned or controlled'' or ``owns or controls'' in 
Section 460:20-15-2 of this Subchapter, does not or did not in fact 
have the authority directly or indirectly to determine the manner in 
which surface coal mining operations are or were conducted, or (D) 
That the violation covered by the violation notice did not exist, 
has been corrected, is in the process of being corrected, or is the 
subject of a good faith appeal within the meaning of Section 460:20-
15-6 (b) (1) of this Subchapter; provided that the existence of the 
violation at the time it was cited may not be challenged under 
provisions of Section 460:20-15-13 of this Subchapter: (i) By a 
permittee, unless such challenge is made by the permittee within the 
context of Sections 460:20-15-9 through 460:20-15-10 of this 
Subchapter; (ii) By any person who had a prior opportunity to 
challenge the violation notice and who failed to do so in a timely 
manner; or (iii) By any person who is bound by a prior 
administrative or judicial determination concerning the existence of 
the violation.
    (2) In meeting the burden of proof set forth in paragraph (c) 
(1) of this section, the person challenging the ownership or control 
link or the status of the violation shall present probative, 
reliable, and substantial evidence and any supporting explanatory 
materials, which may include: (A) Before the Department: (i) 
Affidavits setting forth specific facts concerning the scope of 
responsibility of the various owners or controllers of an applicant, 
permittee, or any other person cited in a violation notice; and the 
nature and details of any transactions creating or severing an 
ownership or control link; or specific facts concerning the status 
of the violation; (ii) If certified, copies of corporate minutes, 
stock ledgers, contracts, purchase and sale agreement, leases, 
correspondence, or other relevant company records; (iii) If 
certified, copies of documents filed with or issued by any State, 
Municipal, or Federal governmental agency. (iv) An opinion of 
counsel, when supported by: (I) evidentiary materials; (II) a 
statement by counsel that he or she is qualified to render the 
opinion; and (III) a statement that counsel has personally and 
diligently investigated the facts of the matter; or, (IV) where 
counsel has not investigated the facts, a statement that such 
opinion is based upon information which has been supplied to counsel 
and which is assumed to be true. (B) Before any administrative or 
judicial tribunal reviewing the decision of the Department, any 
evidence admissible under the rules of such tribunal.
    (d) After departmental determination. Following any 
determination by the Department or other state agency, or any 
decision by an administrative or judicial tribunal reviewing such 
determination, the Department shall review the information in AVS to 
determine if it is consistent with the determination or decision, if 
it is not, the Department shall promptly inform the Office of 
Surface Mining and request that the AVS information be revised to 
reflect the determination or decision.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are requesting 
comments on whether the proposed amendment satisfies the applicable 
program approval criteria of 30 CFR 732.15. If we approve the 
amendment, it will become part of the Oklahoma program.

Written Comments

    Your written comments should be specific and pertain only to the 
issues proposed in this rulemaking. You should explain the reason for 
any recommended change. In the final rulemaking, we will not 
necessarily consider or include in the Administrative Record any 
comments received after the time indicated under DATES or at locations 
other than the Tulsa Field Office.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., c.s.t. on 
November 4, 1998. We will arrange the location and time of the hearing 
with those persons requesting the hearing. If you are disabled and need 
special accommodation to attend a public hearing, contact the 
individual listed under FOR FURTHER INFORMATION CONTACT. The hearing 
will not be held if no one requests an opportunity to speak at the 
public hearing.
    You should file a written statement at the time you request the 
hearing. This will allow us to prepare adequate responses and 
appropriate questions. The public hearing will continue on the 
specified date until all persons scheduled to speak have been heard. If 
you are in the audience and have not been scheduled to speak and wish 
to do so, you will be allowed to speak after those who have been 
scheduled. We will end the hearing after all persons scheduled to speak 
and persons present in the audience who wish to speak have been heard.

Public Meeting

    If only one person requests an opportunity to speak at a hearing, a 
public meeting, rather than a public hearing, may be held. If you wish 
to meet with us to discuss the amendment, request a meeting by 
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All 
such meetings are open to the public and, if possible, we will post 
notices of meetings at the locations listed under ADDRESSES. We also 
make a written summary of each meeting a part of the Administrative 
Record.

IV. 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 such 
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 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

[[Page 55983]]

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: October 9, 1998.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 98-28123 Filed 10-19-98; 8:45 am]
BILLING CODE 4310-05-P