[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:
mwolfrom@mcrgw.osmre.gov.
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
