[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.
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State regulation OAC Subject Federal regulation 30 CFR
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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.
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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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