Ohio Regulatory Program Amendment

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

Ohio Regulatory Program Amendment

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment..

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SUMMARY: OSM is announcing the approval, with exceptions, of a proposed

amendment to the Ohio regulatory program (hereinafter referred to as

the Ohio program) under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). The proposed amendment revises parts of the Ohio

Administrative Code (OAC) pertaining to land use and revegetation

success. It establishes revegetation success standards where the

postmining land use is undeveloped land and sampling procedures for

measuring vegetative ground cover, forage yield and tree and shrub

stocking.

The amendment is intended to revise the Ohio program to be

consistent with the corresponding Federal regulations, clarify

ambiguities, and encourage tree planting.

EFFECTIVE DATE: May 2, 1994.

FOR FURTHER INFORMATION CONTACT:

Mr. Richard J. Seibel, Director, Columbus Field Office, Office of

Surface Mining Reclamation and Enforcement, Eastland Professional

Plaza, 4480 Refugee Road, Suite 201, Columbus, Ohio 43232; Telephone:

(614) 866-0578.

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program.

II. Discussion 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 Ohio Program

On August 16, 1982, the Secretary of the Interior conditionally

approved the Ohio program. Information on the general background of the

Ohio program, including the Secretary's findings, the disposition of

comments, and a detailed explanation of the conditions of approval of

the Ohio program, can be found in the August 10, 1982, Federal Register

(47 FR 34688). Subsequent actions concerning the conditions of approval

and program amendments are identified at 30 CFR 935.11, 935.15, and

935.16.

II. Discussion of the Proposed Amendment

The subject of this final rule is a combination and resubmission of

two prior Ohio amendments, PA 25R and PA 56R (Administrative Record No.

OH-1944). This combined resubmission was submitted to OSM by Ohio on

October 21, 1993. OSM announced receipt of the proposed amendment in

the November 4, 1993, Federal Register (58 FR 58824) and in the same

notice opened the public comment period and provided opportunity for a

public hearing on the adequacy of the amendment. The public comment

period ended on December 6, 1993. The public hearing scheduled for

November 29, 1993, was not held because no one requested an opportunity

to testify.

The Ohio legislature through the Joint Committee on Agency Rule

Review approved the proposed amendment on November 27, 1993. The Ohio

Department of Natural Resources, Division of Reclamation (Ohio), has

delayed implementation of the rule until the Director of OSM makes his

decision on the proposed amendment. Set forth below is the history of

PA 25R and PA 56R.

Revised Program Amendment Number 25 (PA 25R)

On January 14, 1993 (58 FR 4330), the Director of OSM announced his

decision on a June 22, 1992, submission of PA 25R (Administrative

Record No. OH-1725). In that decision, the Director approved Ohio's

proposed revision to OAC 1501:13-9-15 (J)(1) adopting the requirement

that success of revegetation shall be measured using a statistically

valid sampling technique with a 90-percent statistical confidence

interval. However, the Director did not approve Ohio's visual (ocular)

method of evaluating ground cover as a statistically valid means of

performing that sampling. Therefore, the Director continued the

requirement at 30 CFR 935.16(f) that Ohio amend its program to include

a statistically valid sampling technique for evaluating ground cover in

order to be no less effective than the corresponding Federal

regulations at 30 CFR 816.116(a).

By letter dated June 11, 1994 (Administrative Record No. OH-1889),

Ohio resubmitted PA 25R. In that resubmission, Ohio proposed to delete

the recently approved requirements for statistical sampling of

revegetation and to substitute a mixed use of ocular evaluation and

statistical sampling under new paragraphs (G)(3)(b) (ii) and (iii) and

revised paragraph (K)(1) of OAC 1501:13-9-15.

OSM announced receipt of new PA 25R in the July 6, 1994, Federal

Register (58 FR 36178), and, in the same document, opened the public

comment period and provided opportunity for a public hearing on the

adequacy of the proposed amendment. The public comment period ended on

August 5, 1993. The public hearing scheduled for August 2, 1993, was

not held because no one requested an opportunity to testify.

By letter dated September 13, 1993 (Administrative Record No. OH-

1917), OSM provided its questions and comments to Ohio on the June 11,

1993, resubmission of PA 25R. On October 12, 1993, Ohio requested and

received a one-week extension to the due date for its response to OSM's

September 13, 1993, letter (Administrative Record Nos. OH-1936 and

1937).

Ohio's October 21, 1993, amendment submission, which is the subject

of this final rule, was submitted in part to address OSM's September

13, 1993, questions and comments on PA 25R. Also, as part of the

October 21, 1993, submission, Ohio formally withdrew its earlier June

22, 1992, submission of PA 25R, which was partially approved by the

Director of OSM on January 14, 1993. On January 14, 1994, OSM sent Ohio

a final issue letter which the State responded to on February 23, 1994

(Administrative Record Nos. OH-1976 and OH-1989).

Revised Program Amendment Number 56 (PA 56R)

By letter dated May 1, 1992 (Administrative Record No. OH-1690),

Ohio submitted proposed PA 56. This amendment proposed changes to two

Ohio rules concerning measurement of revegetation success on pasture or

grazing land, undeveloped land, recreational areas, and previously

disturbed areas.

As part of and in support of PA 56, Ohio also submitted four draft

Policy/Procedure Directives entitled ``Measurement of productivity on

pasture and grazing land,'' ``Identification of areas for which the

premining land use is undeveloped land,'' ``Planting plans for areas

for which the approved postmining land use is undeveloped land,'' and

``Verification of proper planting of tree seedlings.'' These proposed

policy statements elaborated on and established criteria for the new

requirements in the two revised Ohio rules.

OSM announced receipt of PA 56 in the June 2, 1992, Federal

Register (57 FR 23178) and, in the same document, opened the public

comment period and provided opportunity for a public hearing on the

adequacy of the proposed amendment. The public comment period ended on

July 2, 1992. The public hearing scheduled for June 29, 1992, was not

held because no one requested an opportunity to testify.

By letter dated January 12, 1993 (Administrative Record No. OH-

1803), Ohio resubmitted PA 56R in response to OSM's questions and

concerns. This revised amendment proposed additional modifications to

the rule at OAC 1501:13-9-15. OSM announced receipt of new PA 56R in

the March 22, 1993, Federal Register (58 FR 15315) and, in the same

document, opened the public comment period and provided opportunity for

a public hearing on the adequacy of the proposed amendment. The public

comment period ended on April 21, 1993. The public hearing scheduled

for April 16, 1993, was not held because no one requested an

opportunity to testify.

By letter dated October 14, 1993 (Administrative Record No. OH-

1939), OSM provided questions and comments to Ohio on the January 12,

1993, resubmission of PA 56R. Ohio's October 21, 1993, amendment

submission, which is the subject of this final rule, was submitted in

part to address OSM's October 14, 1993, questions and comments. On

January 14, 1994, OSM sent Ohio a final issue letter which the State

responded to on February 23, 1994 (Administrative Record Nos. OH-1976

and OH-1989).

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 to the Ohio program. Only substantive changes will

be discussed in detail. Revisions which are not discussed below concern

nonsubstantive wording changes or revised cross-references and

paragraph notations that reflect organizational changes resulting from

this amendment.

The proposed amendment governs both surface mining activities and

underground mining activities. The Federal counterparts are 30 CFR part

816 for surface mining activities and 30 CFR part 817 for underground

mining activities. With a few exceptions, part 816 and part 817 are

substantively identical. OSM will discuss the proposed changes to

Ohio's rules in relation to the Federal rules governing surface mining

activities at 30 CFR part 816 with the understanding that such

discussion also applies to the Federal rules governing underground

mining activities at 30 CFR part 817. Any exceptions will be discussed

separately.

1. OAC 1501:13-4-06(E)(2)(g), Land Use Changes

Ohio is revising OAC 1501:13-4-06(E)(2)(g) to provide that a change

in the postmining land use pursuant to Ohio's postmining land rules at

OAC 1501:13-9-17 shall be considered a significant alteration of the

mining and reclamation plan in the original permit and shall be subject

to notice and hearing requirements. The Federal rules at 30 CFR 701.5

define land uses which are to be used by permit applicants to

characterize premining and postmining land uses. This Federal rule

further specifies that changes of land use from one category to another

shall be considered as a change to an alternative land use which is

subject to approval by the regulatory authority. 30 CFR 774.13(b)(2)

provides for the regulatory authority to establish guidelines

concerning the scale or extent of permit revisions for which all the

permit application information requirements and procedures including

notice, public participation, and notice of decision requirements shall

apply. Such requirements and procedures are to apply, at a minimum, to

all significant permit revisions. Furthermore, in the October 1, 1980,

Federal Register (45 FR 64908), OSM published an interpretive rule, 30

CFR 784.200, pertaining to the approval of alternative postmining land

uses through the permit revision procedures of 30 CFR 774.13. In this

interpretive rule, OSM stated that it considered an application for a

permit revision to adopt an alternative postmining land use to

constitute a significant alteration from the mining operations

contemplated by the original permit, and to be subject to the public

notice and hearing requirements, as well as other provisions, of 30 CFR

parts 773 and 775. The Director, therefore, finds that the proposed

revisions to OAC 1501:13-4-06(E)(2)(g) bring this rule into conformity

with the Federal interpretive rule, and are no less effective than 30

CFR 701.5 and 774.13(b)(2).

2. OAC 1501:13-9-15 (F), (G), (H), Removed and Redesignated

Ohio is proposing to remove paragraphs (F), (G), and (H) and

redesignate the requirements found therein as proposed paragraphs (K),

(L) and (N). The Director finds that the proposed deletions are

duplicative of requirements found elsewhere in the Ohio program and do

not render the program less effective than the Federal rules.

3. OAC 1501:13-9-15(F)(1), Measurement of Revegetation Success

A. General Revegetation Requirements

Ohio is proposing to require as part of OAC 1501:13-9-15(F)(1) that

the general revegetation requirements found in paragraphs (B) and (C)

be met in all revegetation efforts. Paragraph (B) of OAC 1501:13-9-15

requires the vegetative cover of the reclaimed area to be diverse,

effective, and permanent; comprised of native species to the area; at

least equal in extent of cover to the natural vegetation; and capable

of stabilizing the soil surface from erosion. Paragraph (C) of OAC

1501:13-9-15 requires the reestablished plant species to be compatible

with the approved postmining use; have the same seasonal

characteristics of growth as the original vegetation; be capable of

self-regeneration and plant succession; be compatible with the plant

and animal species of the area; and meet the requirements of applicable

State and Federal seed, poisonous noxious plant, and introduced species

laws or regulations. The Federal rules at 30 CFR 816.116(a) contain a

similar provision which requires the success of revegetation to be

judged, in part, upon the satisfaction of the general standards for

revegetation at 30 CFR 816.111. Therefore, the Director finds that the

revised State rule is no less effective than its Federal counterpart in

this respect.

Part A of Ohio's ``Guidelines for Evaluating Revegetation Success''

which were also submitted as part of this amendment provide that:

At the time ground cover is evaluated to determine whether

plants are established and controlling erosion, the inspector shall

also evaluate species composition and diversity. This evaluation is

based primarily on visual observation in the field, although

receipts or tags from seed packages are also reviewed.

This language indicates that species composition and diversity will

be evaluated only at the time of phase II bond release (see OAC

1501:13-9-15 (G)(2) and (M)(2) which contain similar language).

However, the preamble to the Federal revegetation rules at 30 CFR

816.116 states that these parameters must be evaluated at the time of

final bond release. ``The final bond release inspection will evaluate

achievement of the general requirements of 30 CFR 816.111 in addition

to the success standards of 30 CFR 816.116 (53 FR 34641, September 7,

1988).'' Therefore, the Director finds that this provision of the

guidelines is less effective than the Federal rules and he is requiring

that Ohio amend its program to require evaluation of the applicable

parameters set forth in OAC 1501:13-9-15 (B) and (C), the State

counterparts to 30 CFR 816.111, at the time of final bond release. The

methodology to be used in evaluation must be clearly identified.

B. Evaluating of Specific Revegetation Success Standards

Ohio also proposes to add language to OAC 1501:13-9-15(F)(1) to

require that the Chief of the Ohio Department of Natural Resources,

Division of Reclamation (the Chief) compile guidelines specifying

statistically valid sampling techniques for measuring success of ground

cover, production, or stocking at the time of final bond release. The

statistical sampling techniques shall use a 90 percent confidence

interval (i.e., a one-sided test with a 0.10 alpha error).

The Federal rules at 30 CFR 816.116(a)(1) state that standards of

success and statistically valid sampling techniques for measuring

success shall be selected by the regulatory authority and included in

an approved regulatory program. In the preamble to this rule, OSM

indicated that this could be accomplished through either rules or by

guidelines which are incorporated into the State program by reference

(48 FR 40150, September 2, 1983). Ohio has submitted to OSM a separate

document titled ``Guidelines for Evaluating Revegetation Success''

which is proposed for incorporation into the State program to satisfy

OAC 1501:13-9-15(F)(1). This document, which covers data collection,

recording, and analysis, has three parts:

Part A. Ground Cover: This part outlines Ohio's adaptation of the

point-intercept ``stick'' method developed by John C. Rennie and Robert

E. Farmer et al; which Ohio will use to evaluate herbaceous ground

cover and to evaluate tree and shrub survival concurrently with

herbaceous ground cover.

Part B. Stocking of Trees and Shrubs: This part outlines Ohio's

adaptation of the Rennie-Farmer method to evaluate tree and shrub

survival independent of ground cover using circular plots and tree and

shrub counts within those plots. It also specifies handling and

planting techniques for trees and shrubs.

Part C. Productivity: This part outlines Ohio's methods for

measuring hay production on pasture, grazing land, and cropland and for

measuring production on cropland planted with corn, oats, and wheat.

In his January 14, 1994, issue letter to Ohio, the Director noted

two errors in the proposed formula to determine sample size found on

page 13 of the ``Guidelines for Evaluating Revegetation Success.''

These errors involved the appropriate ``t'' value and the expression of

acceptable error which appears in the denominator of the formula

(Administrative Record No. OH-1976). Without correction, the formula

will result in an inappropriate sample size. Ohio has agreed to make

the necessary revisions but has not yet done so. The Director finds

that, with this exception, Ohio's proposed procedures to estimate mean

ground cover, stocking and yield are based upon and consistent with

statistical sampling theory, and that this aspect of the requirements

of 30 CFR 816.116(a)(1) have been satisfied. The Director notes that

only the sampling techniques set forth in these guidelines may be used

to evaluate revegetation success under the Ohio program.

The State has also proposed at OAC 1501:13-9-15 paragraphs (G)

through (N) success standards for ground cover, production and

stocking, where appropriate, for various postmining land uses and has

adopted the requirement in 30 CFR 816.116(a)(2) that a 90 percent

statistical confidence interval be used when testing whether the sample

mean is equal to or greater than the approved success standard. The

Director finds that, with the exceptions noted above, proposed OAC

1501:13-9-15(F)(1) and the document ``Guidelines for Evaluating

Revegetation Success'' satisfy the requirements of and are no less

effective than 30 CFR 816.116(a) (1) and (2). Accordingly, he is

removing the existing requirement at 30 CFR 935.16(f) to include in the

Ohio program statistically valid techniques for evaluating revegetation

success and adding a new requirement that the document ``Guidelines for

Evaluating Revegetation Success'' be revised to include the correct

formula for determining sample size.

4. OAC 1501:13-9-15(F)(2)(b)(ii), Timing for Row Crops

For areas to be used for agricultural cropland, including prime

farmland, Ohio proposes to require the five-year period of extended

responsibility to commence on the date on which the initial planting of

row crops has been completed. The initial planting will be subject to

verification by the Chief. This proposed rule repeats the requirements

of existing rules OAC 1501:13-9-15(I) (4)(a) and (5)(e), which were

previously approved by the Director. The Director finds that the

removal of OAC 1501:13-9-15(I) (4)(a) and (5)(e) and the reinstatement

of the requirements therein as proposed OAC 1501:13-9-15(F)(2)(b)(ii)

does not render the Ohio program less effective than 30 CFR 816.116(c).

5. OAC 1501:13-9-15(F)(2)(c)(ii), Rill and Gully Repair

Ohio is revising OAC 1501:13-9-15(F)(2)(c)(ii) to clarify that the

Chief will classify instances of rill and gully erosion repair as

either limited or extensive based on the extent of repairs needed and

the cause of the erosion. The Chief will consider extensive repairs to

be an augmentative practice that will restart the extended period of

responsibility. Limited repair of rills and gullies will not be

considered augmentative. The Director finds that this clarification is

no less effective than 30 CFR 816.116(c)(4) and is consistent with the

preamble which states that the ``repair of rills and gullies is not

always simply good husbandry'' (53 FR 34642, September 7, 1988).

6. OAC 1501:13-9-15(I)(3), Removed and Redesignated

Ohio proposes to remove OAC 1501:13-9-15(I)(3), which is an

introductory statement for rules governing pasture or grazing land, and

redesignate and reword the contents thereof as proposed OAC 1501:13-9-

15(G)--Revegetation Success Standards for Pasture or Grazing Land. The

Director finds that this simplification of regulatory language and

structure does not change the meaning of the provision in question and

that it, therefore, can be approved.

7. OAC 1501:13-9-15(G)(3), Success Standards for Pasture or Grazing

Lands

Ohio is revising OAC 1501:13-9-15 (G)(3) (a) and (b) to provide

that revegetation shall be determined to be successful for phase III

bond release on pasture or grazing land when the following criteria are

met: (1) the production of planted and non-noxious volunteer species

equal or exceed the county average yield for hay for any two years of

the period of extended responsibility, except the first year, (2) the

ground cover equals or exceeds 90 percent for the last year of the

period of extended responsibility and one additional year, except the

first year, and (3) no single area with less than 30 percent cover

exceeds the lesser of 3,000 square feet or 0.3 percent of the land

affected.

The success standards for areas developed for use as pasture or

grazing land at 30 CFR 816.116(b)(1) require the ground cover and

production of living plants on the revegetated area to equal or exceed

that of a reference area or other success standards approved by the

regulatory authority. Ohio has proposed to use the average yield from

all hayland in the county where the mine is located as the standard for

phase III bond release. Average county yields for hay are published

annually by the Ohio Department of Agriculture without classification

as to soil type, management intensity, or past mining history. The

Federal rules at 30 CFR 816.116(a)(2) require standards for success to

include criteria representative of unmined lands in the area being

reclaimed. The potential problem of including mined land in the

calculation of average county yields has been evaluated by the Ohio

Agricultural Statistics Service (Administrative Record No. OH-1195). It

was found that there are no statistically significant differences

between county means developed with and without reclaimed land. The

Director, therefore, finds that the average county yield for hayland in

Ohio is representative of yield on unmined land in the State and that

in this respect the proposed rule at OAC 1501:13-9-15(G)(3)(a) is no

less effective than 30 CFR 816.116(a)(2). Furthermore, the approval of

average county yields in Ohio is consistent with the Director's

decision to approve average county yield in the Tennessee Federal

Program (30 CFR 942.816(f)(1)).

The Federal rules at 30 CFR 816.116(b)(1) require that success for

pasture and grazing land be based not only upon production but also

ground cover. Ohio has proposed a ground cover standard of 90 percent

cover combined with the existing requirement that no single area with

less than 30 percent cover exceeds the lesser of 3,000 square feet or

0.3 percent of the land affected. A 90 percent ground cover and the

associated sparse area standard are consistent with a postmining land

use of pasture or grazing land where the objective is forage production

and the decision by the Director to require a similar standard under

the Tennessee Federal Program (30 CFR 942.816(f)(1)). The Director,

therefore, finds that the ground cover requirements proposed by Ohio

for pasture and grazing land at OAC 1501:13-9-15(G)(3)(b) are no less

effective than 30 CFR 816.116(b)(1).

Ohio is proposing to require for phase III bond release that the

production standard be met for any two years of the period of extended

responsibility except the first year and that the ground cover standard

be met for the last year of the period of responsibility and one

additional year, except the first year. OSM's rules at 30 CFR

816.116(c)(2) require mine operators in areas of more than 26.0 inches

of annual average precipitation, who select a postmining land use of

pasture or grazing land, to equal or exceed the approved success

standard during the growing seasons of any two years of the

responsibility period, except the first year. The Ohio rule has an

equivalent requirement. For this reason, the Director finds that Ohio's

proposed pasture or grazing land standards at OAC 1501:13-9-15(G)(3)

are no less effective than 30 CFR 816.116 (b) and (c).

8. OAC 1501:13-9-15(I)(3)(C) (a), (b), (c), Removed

Ohio proposes to remove ground cover requirements in paragraphs

(I)(3)(C) (a), (b), and (c) for pasture and grazing land and replace

them with the proposed standards at OAC 1501:13-9-15(G)(3). The

Director finds that this removal does not render Ohio's rules less

effective than the Federal rules because, as discussed in finding 7

above, the standards established in OAC 1501:13-9-15(G)(3) are

consistent with Federal requirements.

9. OAC 1501:13-9-15(J)(1)(b) and (J)(2), Success Standards for

Industrial, Residential, or Commercial Areas

Ohio proposes to revise OAC 1501:13-9-15(J)(1)(b) to provide that,

for areas to be developed within two years after regarding is

completed, revegetation success for phase III bond release shall be

evaluated in the last year of the period of extended responsibility.

The Federal counterpart at 30 CFR 816.116(c)(2) likewise requires that

revegetation on such areas equal or exceed the applicable success

standard during the growing season of the last year of the

responsibility period. Accordingly, the Director finds that OAC

1501:13-9-15(J)(1)(b) is no less effective than 30 CFR 816.116(c)(2).

Ohio proposes to revise its ground cover standards for phase II and

phase III bond release for areas for which an approved industrial,

residential, or commercial postmining land use will not be achieved

until two or more years after regrading is completed. The proposed rule

at OAC 1501:13-9-15(J)(2) requires the ground cover success standards

at OAC 1501:13-9-15(G)(2) to be met for phase II bond release.

Paragraph (G)(2) provides that revegetation shall be determined to be

successful when the species planted, in accordance with the approved

reclamation plan, are established and the area has sufficient ground

cover to control erosion. The Director finds that this requirement is

consistent with 30 CFR 800.40(c)(2), which specifies that phase II bond

release may occur when, among other things, revegetation is established

in accordance with the reclamation plan.

For phase III bond release, the proposed rule provides that ground

cover in the last year of the period of extended responsibility must

equal or exceed 90 percent. In addition, no single area with less than

30 percent cover may exceed the lesser of 3,000 square feet or 0.3

percent of the land affected. The Federal rules do not contain specific

revegetation success standards for areas to be developed for

industrial, commercial, or residential use two or more years after

regrading is completed. Although OSM proposed standards on March 23,

1982 (47 FR 12596), they were never adopted. The preamble to the final

rule promulgated on September 2, 1983 (48 FR 40154) provides no

guidance as to what standards apply to such lands. In the absence of

specific Federal standards or guidance, the only applicable portion of

30 CFR 816.116(b) is the requirement that standards for success ``be

applied in accordance with the approved postmining land use.'' For

areas to be developed for industrial, commercial, or residential use,

ground cover is the most appropriate parameter since erosion control

and stability are an integral part of the postmining land use, while

woody plants (stocking) and vegetative productivity are not. Because

the ground cover standard proposed by Ohio is equal to that required

for pasture land, it should be sufficient to control erosion. Under OAC

1501:13-9-15(F), such areas would also have to comply with OAC 1501:13-

9-15 (B) and (C), the State counterparts to the general revegetation

requirements of 30 CFR 816.111, as required by 30 CFR 816.116(a).

Therefore, the Director finds that Ohio's proposed phase III bond

release standards for areas to be developed for industrial, commercial,

or residential use two or more years after regrading is completed are

consistent with the applicable provisions of 30 CFR 816.116 an no less

stringent than sections 515(b) (19) and (20) of SMCRA.

10. OAC 1501:13-9-15(K)(3), General Requirements for Woody Vegetation

Where the approved postmining land use is commercial forest,

noncommercial forest, or shelterbelts, Ohio proposes that the Chief

shall determine the appropriate species, stocking and planting

arrangements for both woody and herbaceous plants after consultation

with and approval by the Ohio Division of Forestry. These same

revegetation considerations will also be determined by the Chief after

consultation with the approval by the Ohio Division of Wildlife (DOW)

for areas where the approved postmining land use is fish and wildlife

habitat or undeveloped land. The State's proposed rule includes

provisions formerly found at OAC 1501:13-9-15 (F), (G), and (H), which

were previously approved as no less effective than 30 CFR

816.116(b)(3)(i), which requires that minimum stocking and planting

arrangements for woody plants be specified by the regulatory authority

after consultation with and approval by the State agencies responsible

for the administration of forestry and wildlife programs. The Director,

therefore, finds that proposed OAC 1501:13-9-15(K)(3) remains no less

effective than 30 CFR 816.116(b)(3)(i).

11. OAC 1501:13-9-15(I)(8) (b), (c), (d), Removal in Part

Ohio proposes to remove paragraphs (I)(8) (b) and (c), which

require tree and shrub species to be compatible with the postmining

land use and herbaceous cover species to be compatible with the growth

of acceptable trees and shrubs. Since the requirement for tree and

shrub species to be compatible with the postmining land use duplicates

OAC 1501:13-9-15(C)(1)(a), its removal will not render the Ohio program

less effective than the Federal rules at 30 CFR 816.111(b)(1), which

contain a similar requirement. Likewise, because there is no Federal

rule which specifically requires that herbaceous species be compatible

with trees and shrubs, the removal of this State rule will not render

the Ohio program less effective than the Federal rules. Ohio has

retained this requirement in proposed OAC 1501:13-9-15(M)(1), which

applies to areas with a postmining land use of undeveloped land. In

addition, both of the deleted provisions are implied requirements of

OAC 1501:13-9-15(K)(3), which addresses appropriate species of trees

and shrubs and appropriate mixtures of herbaceous species.

Also proposed for removal is paragraph (I)(8)(d), which provides

that the five-year period of extended responsibility will begin on the

date of the planting of the approved woody plant species or the last

augmented seeding of the herbaceous species, whichever occurs later.

This requirement is duplicative of the general requirements for

measuring revegetation success at OAC 1501:13-9-15(F)(2)(b)(i), which

states that the five-year period of extended responsibility shall begin

on the date of the last augmented seeding, fertilizing, planting, or

other work necessary to ensure successful revegetation. The Director,

therefore, finds that the removal of OAC 1501:13-9-15(I)(8) (b), (c),

and (d) will not render the Ohio program less effective than the

Federal rules at 30 CFR 816.111 and 816.116.

12. OAC 1501:13-9-15(L)(2), Ground Cover Success Standards for

Postmining Land Uses Involving Woody Vegetation

Ohio is proposing to revise OAC 1501:13-9-15(L)(2) to provide that,

with respect to ground cover, revegetation shall be determined to be

successful for a phase III bond release if the five-year period of

extended responsibility has expired and the herbaceous ground cover in

the last year is at least 70 percent. This provision applies to areas

where the approved postmining land use is commercial forest,

noncommercial forest, shelterbelts, or fish and wildlife habitat. The

Federal rules at 30 CFR 816.116(c)(2) require areas with these approved

postmining land uses to meet the applicable success standard during the

growing season of the last year of the responsibility period. 30 CFR

816.116(b)(3)(iii) requires the vegetative ground cover at the time of

phase III bond release to be not less than that required to achieve the

approved postmining land use. In recognition of the difficulty of

establishing trees and shrubs in dense herbaceous cover, OSM has

previously accepted a minimum vegetative ground cover of 70 percent for

postmining land uses involving woody plants in States with more than

26.0 inches of annual average precipitation (44 FR 15237, 15239-40,

March 13, 1979). The Director, therefore, finds that OAC 1501:13-9-

15(L)(2) is no less effective than 30 CFR 816.116(b)(3) and (c)(2).

13. OAC 1501:13-9-15(L)(2)(a), Commercial Forest

Ohio is proposing to revise OAC 1501:13-9-15(L)(2)(a) by adding the

requirement that a minimum of 75 percent of the required trees per acre

needed for phase III bond release where the postmining land use is

commercial forest land shall be commercial tree species. OSM removed an

identical provision from the Federal rules on September 2, 1983 (48 FR

40153), in order to provide States the flexibility to establish

standards based on local and regional conditions. Under 30 CFR

816.116(b)(3)(i), such standards must be developed in consultation with

and have the approval of the Ohio Division of Forestry. The Director

finds that OAC 1501:13-9-15(L)(2)(a) is no less effective than 30 CFR

816.116(b)(3)(i), provided Ohio submits documentation to OSM indicating

that approval from the Division of Forestry has been obtained. Until

such time, Division of Forestry approval must be obtained on a permit-

specific basis in accordance with OAC 1501:13-9-15(K)(3).

14. OAC 1501:13-9-15(L)(2)(c), Noncommercial Forest or Shelterbelts

The phrase ``on each acre on which trees and shrubs are to be

planted'' has been added to paragraphs (L)(1)(a), (L)(2)(a), (L)(2)(b),

and (L)(2)(c) to clarify that stocking rates for trees and shrubs only

apply to those areas where trees and shrubs are to be planted as

indicated in the approved reclamation plan. The Director finds that

this clarification does not render the State's rules less effective

than their Federal counterparts which also apply only to areas upon

which woody plants are to be planted.

Ohio is proposing to add paragraph (L)(2)(c), which requires for

phase III bond release, where the postmining land use is noncommercial

forest or shelterbelts, a minimum of 450 countable trees per acre, of

which 80 percent must have been in place for at least three years. The

Federal rules at 30 CFR 816.116(b)(3)(i) provide that minimum stocking

and planting arrangement shall be determined by the regulatory

authority and that at the time of bond release, at least 80 percent of

the trees and shrubs used to determine such success shall have been in

place for 60 percent of the applicable minimum period of

responsibility. In Ohio's case, 60 percent of the five-year

responsibility period is three years. The Director, therefore, finds

that OAC 1501:13-9-15 paragraph (L)(2)(c) is no less effective than 30

CFR 816.116(b)(3).

15. OAC 1501:13-9-15(I)(8)(f)(ii), Removed

Ohio is proposing to remove paragraph (I)(8)(f)(ii), which requires

for phase III bond release where the postmining land use is commercial

forest, noncommercial forest, shelterbelts, or fish and wildlife

habitat that the herbaceous ground cover be the greater of 30 percent

or sufficient to control erosion. This provision has been replaced by

proposed OAC 1501:13-9-15(L)(2) which sets a new minimum ground cover

standard of 70 percent for phase III bond release. Because the new

standard is potentially more protective of the environment, the

Director finds that the removal of OAC 1501:13-9-15(I)(8)(f)(ii) can be

approved. However, the Director notes that this standard cannot

supersede the general requirement of OAC 1501:13-9-15(B)(4), which

provides that revegetation must be capable of stabilizing the soil

surface from erosion. Therefore, if 70 percent cover is inadequate to

control erosion, a greater degree of cover must be established before

final bond release can be approved.

16. OAC 1501:13-9-15(M), Success Standards for Undeveloped Land

A. Background and Description of Proposed Amendment

Undeveloped land is defined by Ohio at OAC 1501:13-9-17(C)(10) as

``land that is not currently being used or managed or, if previously

used or managed, is land that has been allowed to return naturally to

an undeveloped state or has been allowed to return to forest through

natural succession.'' This is identical to the Federal definition of

``undeveloped land or land with no current use or management'' at 30

CFR 701.5.

Under OAC 1501:13-9-17, undeveloped land can be approved as a

postmining land use; however, the proposed success standards for

undeveloped land will apply only in those situations where the

premining land use is undeveloped land. Where both the premining and

postmining land use is undeveloped land, the permittee will be required

to reclaim the disturbed area to the undeveloped land use success

standards in OAC 1501:13-9-15(M). Where the postmining land use is

undeveloped land, but the premining land use is not, the permittee is

required to obtain approval for a land use change and to reclaim the

disturbed area to the forestland/fish and wildlife habitat revegetation

standards found at OAC 1501:13-9-15(L).

Ohio's proposed success standards for undeveloped land at OAC

1501:13-9-15(M) will require the success of revegetation to be

determined on the basis of ground cover and the proper planting of

appropriate tree and shrub species specified in the permittee's

approved planting plan. To be acceptable, a planting plan must include

tree or shrub planting on 10 to 50 percent of the revegetated area.

Planting locations must include slopes steeper than 20 degrees and the

area along drainways and permanent sources of water.

The requirements of OAC 1501:13-9-15(M) are supplemented by Policy/

Procedure Directive, Regulatory 94-2, ``Planting plans for areas for

which the approved postmining land use is undeveloped land'' which

became effective on March 15, 1994. The purpose of this Policy/

Procedure Directive is to provide standard criteria for use by the

Division of Reclamation's (DOR) Permitting Section to review the

planting plans for areas where the approved postmining land use is

undeveloped land. Under the directive, permittees will be required to

plant a minimum of 600 seedlings per acre on the portion of the permit

area where planting of trees or shrubs is to be required. Ten to 30

percent of the permit area must be planted to trees and shrubs where

herbaceous cover has been planted and the permittee has obtained an

approved postmining land use change from pastureland to undeveloped

land. Thirty to 50 percent of the permit area must be planted to trees

and shrubs where a permittee has obtained a postmining land use change

to undeveloped land prior to the planting of herbaceous cover or where

undeveloped land is the approved postmining land use at the time of

permit application approval. An acceptable planting plan must include

at least four hardwood tree species or shrub species selected from the

State's approved list and at least one coniferous tree species selected

from the State's approved list. The approved species list to part of

the directive.

The Directive also specifies acceptable seed mixes of herbaceous

species. These seed mixes are designed to enhance wildlife habitat and

to be compatible with tree planting efforts as required under OAC

1501:13-9-15(M)(1). Kentucky 31 Fescue (Festuca arundinacea) and

Sericea Lespedeza (Lespedeza cunerta) are prohibited from all plantings

on undeveloped land because neither species benefits wildlife and

neither is compatible with tree planting efforts. This language in the

Directive supplements the requirement of proposed OAC 1501:13-9-

15(M)(1) that selected tree and shrub species and herbaceous ground

cover species have value as wildlife habitat and that the herbaceous

ground cover species be compatible with the growth of trees and shrubs.

Under OAC 1501:13-9-15(K)(2), which is incorporated by reference in

OAC 1501:13-9-15(M)(1), quality planting stock and proven field

techniques in the science of woody revegetation must be employed on all

areas where the postmining land use is undeveloped land. This

requirement is reinforced and elaborated upon in the document

``Guidelines for Evaluating Revegetation Success,'' which has been

incorporated into the State's regulatory program. Section B.2 of the

document describes in detail the handling and planting practices for

seedlings that permittees are expected to follow. Each permittee must

submit to DOR, within one week of the completion of planting, a form on

which to verify the planting of tree and shrub seedlings. Upon receipt

of the planting verification form, the DOR shall, within one week,

inspect the area that has been planted to determine whether sufficient

numbers of the appropriate species have been planted in the

configuration shown in the approved planting plan. If the planting is

approved, the verification form is signed by the inspector and returned

to the permittee for submittal with the permittee's request for phase

III bond release.

In OAC 1501:13-9-15(M)(2), revegetation on undeveloped land will be

found successful for phase II bond release when the herbaceous ground

cover species are established and provide sufficient ground cover to

control erosion. The adequacy of ground cover to control erosion will

be determined by DOR's reclamation inspectors based on an ocular

inspection of the disturbed area.

Under OAC 1501:13-9-15(M)(3), revegetation on undeveloped land will

be found successful for a phase III bond release when the five-year

period of extended responsibility has expired and acceptable species of

trees and shrubs have been properly planted in accordance with the

approved planting plan at a rate of 600 trees or shrubs per acre on

each acre on which trees or shrubs are to be planted. In addition, the

herbaceous ground cover must at least equal 70 percent on areas where

trees and shrubs have been planted and at least equal 90 percent or

more on areas where no trees and shrubs have been planted. Ground cover

will be measured using a point-intercept, systematic sampling

procedure. These standards are to be applied to the last year of the

period of extended responsibility for revegetation success. Survival of

tree or shrub plantings is not a requirement for phase III bond

release. The permittee must show by submitting a planting verification

form signed by a DOR reclamation inspector that proper planting

techniques have bean used and that the trees and shrubs have been

planted in approved numbers and locations.

In acting on Ohio's proposed amendment at OAC 1501:13-9-15(M), OSM

is proposing to clarify agency policy concerning the appropriateness of

undeveloped land as a postmining land use and the applicable

revegetation performance standards.

B. Undeveloped Land as a Postmining Land Use

In the past, OSM policy concerning undeveloped land as a postmining

land use has not been clearly defined. The Federal definition of ``land

use'' at 30 CFR 701.5 has always recognized ``undeveloped land or no

current use or land management'' as a distinct land use category.

However, the Federal regulations at 30 CFR 816.116(b) do not establish

specific revegetation success standards for undeveloped land whereas

such standards exist for other defined land use categories. OSM has

sometimes interpreted this omission to mean that undeveloped land is

not an acceptable postmining land use. At other times, OSM has treated

this omission as a regulatory void that States are permitted to fill,

in keeping with the concept of State primacy for the regulation of

surface coal mining and reclamation operations, as established in

section 101(f) of SMCRA.

On May 8, 1991 (56 FR 21270), OSM declined to approve a proposed

State program amendment submitted by Louisiana that would have

established undeveloped land as a separate and distinct postmining land

use category. In explaining this decision, OSM stated that the agency

``does not recognize undeveloped land as a postmining land use because

the intention of the reclamation is to return mined land to a managed

land use. Undeveloped land is not managed.'' Finding 10(h), 56 FR

21276. However, in finding 1(g) (57 FR 48726, 48728, October 28, 1992)

of a final rule document announcing a decision on a subsequent

Louisiana program amendment, OSM modified this position to recognize

undeveloped land as a legitimate postmining land use under certain

circumstances:

``[U]ndeveloped land'' can only be designated as a postmining

land use where it was the premining land use and under no

circumstances could undeveloped land be proposed as an alternative

postmining land use because it does not represent a higher or better

use as required at 30 CFR 816.133(a).

During the same timeframe, OSM also took several actions that did

not adhere to the principles enunciated in the Louisiana program

amendment decisions. On February 5, 1991 (finding 66, 56 FR 4542,

4554), OSM unconditionally approved without explanation or discussion

an Alabama program amendment that contained separate and distinct

revegetation success standards for lands with a postmining land use of

undeveloped land. This approved of Alabama's amendment was followed by

a February 28, 1992, letter from the Deputy Director of OSM, to the

Director of the Surface Mining and Reclamation Division of the Texas

Railroad Commission. In this letter, OSM found that the Texas

regulatory authority had not abused its discretion by approving

undeveloped land as a higher and better alternative postmining land use

for a site with a premining land use of pastureland.

Upon careful review of the Act, its implementing regulations and

their preambles, OSM has determined that the policy established in the

Alabama and Texas decisions is more appropriate and better supported

then the principles advanced in the Louisiana decisions. There is no

language in the revegetation regulations at 30 CFR 816.116, the land

use regulations at 30 CFR 816.133, the definitions of ``land use'' and

``higher or better uses'' in 30 CFR 701.5, or their preambles that

would either prohibit undeveloped land as a postmining land use or

restrict such designations to situations in which the premining use was

undeveloped land. Consistency with SMCRA is not an issue since the Act

does not identify acceptable postmining land use categories or define

higher or better uses.

Furthermore, the Louisiana program amendment findings seem to be

inconsistent with the preamble to the definition of ``land use'' in 30

CFR 701.5, as revised on September 1, 1983 (48 FR 39892, 39893), which

affirms the statement in the preamble to the corresponding proposed

rule that the definition's land use categories are not hierarchical for

purposes of determining higher or better postmining land uses.

Specifically, the preamble to the proposed rule provides that:

[T]he ten categories of land use in the existing definition of

land use are not hierarchical. That is, one land use category is not

automatically a higher or better use than another. In each

situation, the regulatory authority has to compare the values and

benefits of the postmining alternative land use to the values and

benefits of the premining land uses.

47 FR 16152, 16155, April 14, 1982.

Including undeveloped land, the definition contains only ten land

use categories, none of which have undergone material change since

1979. Therefore, it appears that the Secretary did not intend to

exclude undeveloped land from consideration as either a postmining land

use or a higher or better use.

In addition, on September 1, 1983, OSM defined ``higher or better

uses'' as land uses that have a higher economic value or nonmonetary

benefit to either the landowner or the community than the premining

land uses (48 FR 39892, 39903). Since undeveloped land can provide

higher ecological benefits than such premining uses as cropland and

pastureland, the exclusion of undeveloped land as an acceptable

alternative postmining land use category would be inconsistent with the

definition.

The Director is interpreting the land use and revegetation

provisions of SMCRA and the Federal regulations in a manner that will

reverse the positions taken in the Louisiana program amendment

decisions and will support the approval of the proposed Ohio program

amendment. The Director finds that proposed OAC 1501:13-9-15(M), which

establishes undeveloped land as a postmining land use, is consistent

with SMCRA and does not render Ohio's rules less effective than 30 CFR

701.5, 816.116 and 816.133.

C. Revegetation Success Standards for Undeveloped Land

As noted above, the Federal regulations at 30 CFR 816.116(b) do not

establish specific revegetation success standards for undeveloped land

whereas such standards exist for other defined land use categories. In

the case of the Louisiana program amendments discussed above, OSM

interpreted this omission to mean that all mined lands, including areas

with either a premining or designated postmining land use of

undeveloped land, must be reclaimed to one of the land uses

specifically addressed by the Federal regulations at 30 CFR 816.116(b).

However, OSM did not apply this interpretation in the Alabama and Texas

cases discussed above.

The Louisiana decisions suggest that revegetation success standards

for undeveloped land must be equivalent to those for one or more of the

managed land uses that the site was capable of supporting prior to

mining. The Federal rules do not compel such a conclusion. Although the

preamble to 30 CFR 816.133(b) (44 FR 14902, 15243, March 13, 1979)

indicates that Congress did not intend to allow mismanagement prior to

mining to reduce the standards for reclamation success, a lack of

management, which would likely characterize undeveloped land, does not

equate to mismanagement.

Section 515(b)(2) of SMCRA requires that land affected by surface

coal mining operations be restored to a condition capable of supporting

the uses which it was capable of supporting prior to any mining or to

higher or better uses of which there is a reasonable likelihood.

However, this capability demonstration is independent of the

revegetation requirements of paragraphs (b)(19) and (b)(20) of section

515 of SMCRA. There is no language that would compel the adoption of

revegetation success standards based on the land's potential uses prior

to mining rather than the approved postmining land use. Indeed, in the

preamble to 30 CFR 816.133(a) as revised on September 1, 1983 (48 FR

39892, 39897), the Secretary states that:

[T]he final rule emphasizes the land's capability, both with

regard to premining uses and higher or better uses, in this

implementation of Section 515(b)(2) of the Act. This requirement is

distinct from the revegetation or prime farmland rules, which under

some circumstances may require actual production on the reclaimed

land as a measure of successful reclamation.

It is also impractical to interpret section 515(b)(2) of SMCRA and

30 CFR 816.133 as requiring that revegetation success standards be

adequate to demonstrate that the land has been restored to conditions

that are capable of supporting the variety of uses that the land was

capable of supporting prior to mining. Revegetation requirements for

the various land uses that any individual site may be capable of

supporting, such as forestry, pastureland and cropland, are frequently

in conflict.

Furthermore, section 508(a) of SMCRA and its legislative history

(S. Rep. No. 128, 95th Cong., 1st Sess. 77 (1977)), provide that the

demonstration that premining capability can and will be restored must

be made as part of the reclamation plan submitted with the permit

application. Thus, the land use restoration requirements of section

515(b)(2) are addressed primarily through the permit application review

process, and compliance is achieved by adherence to the reclamation

plan and other performance standards such as those pertaining to toxic

materials, topsoil, and backfilling and grading. No separate capability

demonstration is necessary upon the completion of mining and

reclamation.

The Director will interpret the land use and revegetation

provisions of SMCRA and the Federal regulations in a manner that will

reverse the positions taken in the Louisiana program amendment

decisions and will support approval of Ohio's proposed program

amendment. The establishment by States of separate and distinct

revegetation success standards for undeveloped land is consistent with

the Federal regulations which do not contain specific success standards

for undeveloped land, and is in keeping with section 101(f) of SMCRA,

which vests the States with the primary governmental responsibility for

developing, authorizing, issuing and enforcing regulations for surface

coal mining and reclamation operations.

To be approvable, all such standards must comply with 30 CFR

816.116(a), i.e., they must be consistent with the requirements of 30

CFR 816.111 and they must include a statistically valid evaluation of

appropriate vegetation parameters, including ground cover, production

or stocking. In addition, they must satisfy the permittee's obligation

to enhance fish, wildlife, and related environmental values when

practicable as required by section 515(b)(24) of SMCRA. Such

enhancement will always be practicable on undeveloped land since there

will be no conflict with the approved postmining land use. However,

undeveloped land use standards need not meet any of the requirements of

30 CFR 816.116(b) since this paragraph applies only to the postmining

land uses identified therein, none of which is undeveloped land.

In his review of proposed OAC 1501:13-9-15(M), the Director has

applied the tests described above. Under the Ohio proposal, land

reclaimed to an undeveloped postmining land use will be required to

satisfy the general revegetation requirements found at OAC 1501:13-9-15

(B) and (C). OAC 1501:13-9-15(B) requires the permittee to establish a

vegetative cover that is: (1) Diverse, effective, and permanent; (2)

comprised of species native to the area, or of introduced species where

desirable and necessary to achieve the approved postmining land use;

(3) at least equal in extent of cover to the natural vegetation of the

area; (4) capable of stabilizing the soil surface from erosion. These

general revegetation requirements correspond to the general

revegetation requirements at 30 CFR 816.111. The Director finds that in

this respect OAC 1501:13-9-15(M) is no less effective than the Federal

rules at 30 CFR 816.116(a).

Ohio's proposal meets the second criterion for approval by

establishing standards for ground cover and by requiring that success

in achieving these standards be accomplished using statistically valid

sampling procedures. The State has proposed in OAC 1501:13-9-15(M) to

require a ground cover at least equal to 70 percent where trees and

shrubs have been planted and at least equal to 90 percent where no

trees and shrubs have been planted. The evaluation of ground cover will

be accomplished using an approved statistical sampling procedure in

accordance with the ``Guidelines for Evaluating Revegetation Success.''

The Director finds that in this respect, OAC 1501:13-9-15(M) is no less

effective than 30 CFR 816.116(a) (1) and (2).

Furthermore, the Ohio program already includes rules which require

the enhancement of fish, wildlife and related environmental values on

undeveloped land as well as lands reclaimed to other postmining land

uses. OAC 1501:13-4-05(P)(2) requires that each permit application

include enhancement measures that will be used during reclamation and

the postmining phase of operations to develop aquatic and terrestrial

habitat. Permittees are required under OAC 1501:13-9-11(C)(5) to select

plant species to be used on reclaimed areas based on their nutritional

value for fish and wildlife, their use as cover for fish and wildlife

and their ability to support and enhance fish and wildlife habitat

after release of bonds. The distribution of plant groupings must

maximize benefit to fish and wildlife. As required by proposed OAC

1501:13-9-15(K)(3), DOR has consulted with and obtained approval from

the DOW for Policy/Procedure Directive, Regulatory 94-2, Planting Plans

for Undeveloped Land (Administrative Record Nos. OH-1989 and OH-2011).

This further assures that wildlife enhancement will be accomplished

where the postmining land use is undeveloped land. The Director finds

that the wildlife enhancement requirements embodied in proposed OAC

1501:13-9-15(M) and Policy/Procedure Directive 94-2 are consistent with

section 515(b)(24) of SMCRA and no less effective than the Federal

rules at 30 CFR 780.16 and 816.97.

Under proposed OAC 1501:13-9-15(M), permittees need only show that

they have planted the approved number and species of trees and shrubs

using proper planting techniques in order to obtain release of

performance bond. Survival of planted trees and shrubs is not required.

This differs from other postmining land uses such as fish and wildlife

habitat, commercial and noncommercial forest, and shelterbelts where

survival of woody plants is a requirement in both State and Federal

rules. There are no specific Federal revegetation standards under 30

CFR 816.116 for land reclaimed to an undeveloped land use. Since, by

definition, undeveloped land is ``land that has been allowed to return

naturally to an undeveloped state or has been allowed to return to

forest through natural succession,'' and the early stages of natural

succession are dominated by herbaceous and semi-woody plants, survival

of woody stock planted to artificially speed the successional process

is not integral to a determination of whether the land is capable of

achieving a normal vegetative climax through natural succession within

a reasonable period of time. Therefore, even though Ohio is proposing

to require planting of trees and shrubs on undeveloped land, OSM has

determined that it is not necessary for Ohio to establish woody plant

survival standards for undeveloped land. Rather, it is sufficient if

the revegetation success standards meet the requirements of 30 CFR

816.111 and 816.116(a) and if the species selected for revegetation

will not impede the establishment of woody plants native to the area

and characteristic of natural succession in that locality. As discussed

in Finding 3.A., the Director is approving Ohio's proposal that the

general revegetation requirements found in paragraphs (B) and (C) of

OAC 1501:13-9-15, which correspond to the requirements found in 30 CFR

816.111, be met in all revegetation efforts. Accordingly, the Director

finds that the requirement found in OAC 1501:13-9-15(M) that the

success of revegetation for phase III bond release be based, in part,

on the proper planting of trees and shrubs, does not render the Ohio

program to be less effective than 30 CFR 816.111 and 816.116(a). The

Director notes that the absence of a specific survival standard for

trees and shrubs does not relieve the State's responsibility to require

the presence of trees where necessary to determine that a diverse

vegetative cover be established on regraded areas and all other lands

affected, as required in 30 CFR 816.111 and section 515(b)(19). The

evaluation of diversity should consider species diversity or richness

(number of species and their relative importance) and structural

diversity (patchiness and vertical distribution of plants).

Representation of the major life forms, e.g. trees, shrubs, grasses and

forbs is an integral part of the evaluation of structural diversity

(Administrative Record No. OH-2009). The Director has determined that

where a major life form was present before mining, it must be

represented in the postmining vegetation in order to satisfy the

diversity requirement in SMCRA and the Federal rules. Specific survival

standards for trees and shrubs need not be included in the Ohio rules;

however, representative numbers of trees and shrubs must be present at

the time of final bond release. This this end, the Director is

requiring Ohio to submit documentation that it has consulted with and

obtained the approval of the DOW or other responsible agency for

methods to be used to evaluate diversity at the time of final bond

release and that such methods be included in the document ``Guidelines

for Evaluating Revegetation Success.''

17. OAC 1501:13-9-15(N), Success Standards for Recreation Areas

Proposed OAC 1501:13-9-15(N) establishes separate revegetation

success standards for areas with a postmining land use involving

developed recreation facilities, such as portions of parks, camps and

amusement areas where woody vegetation would be incompatible with the

postmining land use, as opposed to areas with a postmining land use

involving less intensive recreational activities, such as hiking or

canoeing. Revegetation success standards for developed recreational

facilities would be limited to ground cover, while standards for less

intensive recreational uses would include both ground cover and woody

plant stocking.

The corresponding Federal regulations at 30 CFR 816.116(b)(3),

which provide that revegetation success on lands with a recreational

postmining land use shall be evaluated in terms of ground cover and

woody plant stocking, do not distinguish between types of recreational

uses. However, OSM does not believe that the Federal regulations

require that trees and shrubs be planted on all portions of lands with

recreational postmining land uses. Interpreting the rule in that

fashion would be unduly restrictive and would conflict with achievement

of the postmining land use to the extent that the approved land use

involves athletic fields, golf courses, or other facilities

incompatible with woody plants. For functional, aesthetic, and

ecological reasons, it may also be desirable to exclude trees and

shrubs from other portions of recreational areas. Therefore, the

Director finds that the distinctions and separate revegetation success

standards proposed by Ohio for recreational lands are not inconsistent

with the Federal regulations at 30 CFR 816.116(b)(3), provided Ohio

does not implement its rules in a manner that would subvert the intent

of the Federal rules to require that recreational lands be planted with

trees and shrubs wherever such plantings are not incompatible with the

postmining land use.

For areas where the approved postmining land use is developed

recreation facilities, OAC 1501:13-9-15(N)(1) requires compliance with

the ground cover standards specified in OAC 1501:13-9-15 (G)(2) and

(G)(3)(b) for phase II and III bond release, respectfully, except that

only one ground cover evaluation in the last year of the responsibility

period is necessary for phase III bond release. For phase II bond

release, paragraph (G)(2) requires that revegetation be established in

accordance with the approved reclamation plan with sufficient ground

cover to control erosion. The Director finds that this requirement is

consistent with 30 CFR 800.40(c)(2), which authorizes phase II bond

release when, among other things, revegetation has been established in

accordance with the approved reclamation plan. For phase III bond

release, paragraph (G)(3)(b) requires that ground cover equal or exceed

90 percent. In addition, no single area with less than 30 percent cover

may exceed the lesser of 3,000 square feet or 0.3 percent of the land

affected. The Director finds that these standards are consistent with

the Federal requirements for revegetation success standards at 30 CFR

816.116(b)(3), which provide that ground cover on recreational areas

may not be less than that required to control erosion and achieve the

postmining land use.

For those areas with less intensive recreational postmining land

uses, OAC 1501:13-9-15(N)(2) requires compliance with the general

requirements for woody vegetation in paragraph (K). In addition, for

phase II bond release, the site must meet the revegetation success

standards of paragraph (L)(1), which requires the planting of 600 trees

or shrubs per acre on each acre on which trees and shrubs are to be

planted and a herbaceous ground cover of at least 30 percent or such

greater cover as is needed to control erosion. The Director finds that

this requirement is consistent with 30 CFR 800.40(c)(2), which

authorizes phase II bond release when, among other things, revegetation

has been established in accordance with the approved reclamation plan.

For phase III bond release, the site must meet the revegatation success

standards of paragraph (L)(2) in the last year of the revegetation

responsibility period. Under paragraph (L)(2), the herbaceous ground

cover must equal at least 70 percent and there must be at least 250-450

countable trees per acre which have met time-in-place requirements.

The Federal rules at 30 CFR 816.116(b)(3) requires the success of

vegetation for areas developed for recreation to be based on tree and

shrub stocking and vegetative ground cover. The vegetative ground cover

shall not be less than that required to achieve the postmining land

use. The Director finds that the standards proposed by Ohio in

paragraph (N)(2) meet these requirements. In the event 70 percent

ground cover is inadequate to control erosion, OAC 1501:13-9-15(F)(1),

by reference to OAC 1501:13-9-15 (B) and (C), requires a greater degree

of cover (whatever is needed to control erosion). The Federal rule also

requires that minimum stocking and planting arrangements for woody

plants be specified by the regulatory authority after consultation with

and approval by the State agencies responsible for the administration

of forestry and wildlife programs. OAC 1501:13-9-15(K)(3), which is

incorporated by reference into proposed paragraph (N)(2), contains an

identical requirement, but the State did not submit proof of

concurrence with the specific stocking standards in this rule.

Therefore, the Director finds that, while proposed OAC 1501:13-9-

15(N)(2) can be approved, Ohio will need to obtain permit-specific

approval of stocking standards for recreational land uses from the

pertinent State agencies until such time as the State submits

documentation that the appropriate State agencies have concurred with

the programmatic standards in this rule.

Finally, the Federal rules at 30 CFR 816.116(c)(2) provide for

phase III bond release on areas with a recreational postmining land use

if the applicable success standards are met or exceeded during the

growing season of the last year of the revegetation responsibility

period. As noted above, paragraphs (N) (1) and (2) of the State rules

both contain this requirement. Therefore, the Director finds that they

are no less effective than 30 CFR 816.116(c)(2).

18. OAC 1501:13-9-17(B)(2), Removed

Ohio proposes to remove OAC 1501:13-9-17(B)(2), which provides that

the postmining use for land that has not been previously mined and that

had not been properly managed prior to mining shall be judged on the

basis of surrounding lands which have received proper management. The

State indicated in its May 1, 1992, letter to OSM that the provision

has been interpreted as prohibiting the approval of undeveloped land as

a designated postmining land use (Administrative Record No. OH-1690).

Therefore, the State is proposing to remove the rule.

Because an identically worded Federal counterpart to this rule

(former 30 CFR 816.133(b)(2)) was removed without explanation on

September 1, 1983 (48 FR 39904), the Director finds that the removal of

OAC 1501:13-9-18(B)(2) does not render the Ohio program less effective

than 30 CFR 816.133. However, the Director notes that, even with the

removal of OAC 1501:13-9-17(B)(2), the remainder of paragraph (B) still

requires consideration of whether the land has been properly managed,

as does its Federal counterpart at 30 CFR 816.133(b). Therefore, the

Director's approval of the proposed deletion shall not be construed as

an endorsement of the establishment of artificially low restoration

standards resulting from improper management during the period

immediately preceding mining.

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 on several occasions.

The National Coal Association (NCA), the Citizens Coal Council (CCC),

and the Division of Wildlife, Ohio Department of Natural Resources

(DOW) submitted substantive comments which are summarized and discussed

below.

The NCA supported Ohio's proposal to provide for undeveloped land

as a postmining land use because it would promote the reclamation of

mined lands to a mix of trees and herbaceous species with increased

ecological diversity and accelerate natural succession (Administrative

Record No. OH-1969). NCA further explained that undeveloped land as a

postmining land use falls within the directive of section 515(b)(2) of

SMCRA, which requires surface coal mine operators to ``* * * restore

the land affected to a condition capable of supporting the uses that it

was capable of supporting prior to any mining * * *,'' and that the

Federal definition of ``land use'' at 30 CFR 701.5 recognizes

``undeveloped land or no current use or land management'' as a

legitimate land use category for land that is undeveloped or, if

previously developed, land that has been allowed to return naturally to

an undeveloped state. NCA concluded that the undeveloped postmining

land use category in the amendment is consistent with and no less

effective than SMCRA and the Federal rules. As discussed in Finding 16,

the Director agrees with NCA's conclusion and is approving Ohio's

proposed rule.

NCA also commented that, in developing the proposed success

standards for undeveloped land, Ohio recognizes that existing tree and

shrub survival requirements, which require restarting the extended

responsibility period if the survival standards are not met, have

discouraged operators from planting trees or incorporating forestry as

a postmining land use. In NCA's opinion, the Ohio amendment properly

balances the need to address existing regulatory disincentives to tree

planting with the most critical factor to assuring success of tree

plantings--the selection and planting operation. In support of these

comments, NCA submitted literature citing a decline in tree planting

due to SMCRA's grading, compaction and ground cover requirements and

emphasizing species selection, handling, and planting techniques as the

most critical factors in tree survival. The Director acknowledges that

the issues raised by the NCA may be relevant to the NCA's support of

Ohio's proposed undeveloped land use revegetation requirements, but

notes that the basis for approval of the amendment, as more fully

discussed in Finding 16, is that it is no less effective than the

Federal regulations at 30 CFR 816.111, 816.116 and 816.133.

NCA specifically supported Ohio's lower standard for ground cover

for those areas planted with trees and shrubs by noting that competing

vegetation inhibits tree seedling survival, fosters an environment for

rodent damage, and discourage the invasion of native plant species. The

Director notes that Ohio has proposed a ground cover standard of 70

percent where trees and shrubs are to be planted and a ground cover

standard of 90 percent where no tree and shrub planting is planned. He

agrees with the NCA that these standards should be adequate to

stabilize the mined area and control erosion; however, as noted in

finding 15, if 70 percent cover is insufficient to stabilize the mined

area, a greater degree of cover must be established before bond can be

fully released.

The CCC commented that tree planting was a good idea and supported

the concept of returning land to a state that closely resembles its

premining use (Administrative Record No. OH-1895). The CCC also stated

that past practices by State regulatory authorities and OSM in applying

SMCRA have caused too many acres of forestland to be replaced with

pastureland monocultures populated by introduced rather than native

grass species. The CCC further expressed the belief that the current

provisions of the Ohio program (OAC 1501:13-9-15(L), Success Standards

for Wood Vegetation) allow the regulatory authority to require the

planting of trees, shrubs and other desired species for any postmining

land use and that the proposed rules on undeveloped land, without any

productivity standards, are unnecessary. The CCC also stated that the

real problem in Ohio was a ``culture'' of enforcement that fosters

improper reclamation, not the regulations. The CCC argued that the

approval of the proposed undeveloped land success standards in Ohio

would further erode the enforcement provisions of SMCRA.

The Director agrees that, in general, slowing the conversion of

forestland to pastureland is a desirable goal. He believes that the

approval of undeveloped land revegetation success standards will

further attainment of this goal. The Director finds no evidence to

support the CCC's charges that inadequate enforcement has fostered

improper reclamation or that approval of the amendment will erode the

enforcement provisions of SMCRA. The Director further finds that the

question of whether the undeveloped land use category and success

standards are necessary is irrelevant. Under 30 CFR 732.15 and

732.17(h)(10), the standard for review and approval of State program

amendments is consistency with SMCRA and the Federal rules, not whether

the amendment is necessary.

The DOW supported the proposed amendment because it will help solve

a longstanding problem of lack of diversity on reclaimed lands

(Administrative Record No. OH-1896). The DOW explained that vegetative

diversity is a requirement for high quality wildlife habitat and that

the availability of a postmining undeveloped land use category will

significantly increase wildlife habitat development in an area of the

State existing rich in such habitat. The DOW did not view the

traditional practice in Ohio of establishing large tracts of grassland

monocultures as a ``higher or better'' use of mined land. The Director

agrees with the DOW that vegetative diversity is needed to achieve high

quality wildlife habitat and that approval of the undeveloped

postmining land use category and revegetation success standards should

further this goal. Furthermore, he is requiring the DOR to consult with

and obtain DOW's approval of the methods to be used to evaluate species

and structural diversity at the time of final bond release (see

findings 3A and 16).

Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from the Regional Administrator of

the U.S. Environmental Protection Agency (EPA); the U.S. Department of

Agriculture, Soil Conservation Service (SCS); and the heads of other

Federal agencies with an actual or potential interest in the Ohio

program. Only the EPA and the SCS provided substantive comments.

The EPA recommended that a surface soil and water survey be

performed to ensure that the revegetation for the postmining land uses

is successful. In response, the Director notes that OAC 1501:13-2-

10(K)(2) requires the operator to monitor flow and quality of surface

runoff from the permit area prior to treatment. This data is used by

the operator to demonstrate that the quality and quantity of runoff

without treatment will minimize disturbance to the prevailing

hydrologic balance, meet effluent standards, and attain the prevailing

postmining land use. SMCRA and its implementing regulations do not

require a surface soil survey as suggested by the EPA, and the Director

does not have independent authority to require one.

The EPA also commented that Ohio's proposed guidelines for the

evaluation of revegetation success do not provide for adequate

assessment of plant species diversity, plant community composition and

stability, or percent survival of critical species required to

establish desired plant communities (Administrative Record No. OH-

1973). The agency stated that this assessment should be required for

undeveloped lands, especially in situations where the land use goal is

to provide wildlife habitat. The EPA believed the Rennie-Farmer method,

which Ohio proposes to use for assessing revegetation, is adequate for

percent cover only. It suggests that the Rennie-Farmer method be

modified to provide quantitative data on species diversity and plant

community composition by incorporating assessment of plant species

(number of plants per species and total species present) at each sample

point along the transect. The EPA provided an example of how it

believed the restored revegetation should be evaluated and monitored.

In the example, monitoring reports would be required according to a

schedule in the permit. These reports would identify the criteria for

evaluation and the performance standards to be met. For each habitat

type, they would include the success achieved for critical evaluation

parameters, and plans for remedial measures if the standard is not

being met. The EPA recommended that the reports, at a minimum, address

critical species, undesirable species, percent cover, species richness,

species quality, and planting success. The EPA described each of these

parameters and suggested that evaluations be done at the end of three

and five years after initial planting.

The Director agrees that many of EPA's suggestions have technical

merit. However, nothing in SMCRA or the Federal rules requires

quantitative evaluation of species diversity. Therefore, the Director

does not believe it would be appropriate to require Ohio to adopt a

numerical standard for diversity. As previously stated in finding 16,

he is requiring the DOR, in consultation with the DOW, to submit

methods for evaluating diversity, which may or not include quantitative

measures. Such an evaluation or diversity is expected to take into

account species richness (number of species and their relative

importance) and structural diversity (patchiness and vertical

distribution of plants).

The SCS suggested that traditional land use designations such as

wildlife habitat or woodland are better than the proposed ``undeveloped

land'' postmining land use (Administrative Record No. OH-1701). Upon

further inquiry by OSM, it expressed the belief that it was advisable

to assign a ``beneficial'' use to reclaimed areas rather than to

establish idle land as a reclamation goal. In response, the Director

notes that as indicated in finding 16, undeveloped land has ecological

benefits. Nothing in SMCRA or the State or Federal regulations

authorizes substandard reclamation of these sites. To the contrary,

they must be reclaimed to conditions that are capable of supporting all

the uses that they are capable of supporting prior to mining.

SCS also commented on Policy/Procedure Directive, Regulatory 94-2

(page 3). It believed that the recommended four to six pounds per acre

seeding rate for Ladino Clover was extremely high and may result in too

much competition with other species (Administrative Record No. OH-

1835). A rate of one-half to one pound per acre of Ladino Clover was

suggested as more appropriate. OSM has reviewed the technical

literature on this topic and found that most sources recommend a

seeding rate of three pounds per acre when Ladino Clover is used for

mined land reclamation. The four to six pounds proposed by Ohio has

been approved by DOW and is within reasonable limits.

The State Historic Preservation Officer (SHPO) commented that

information obtained during archaeological/architectural/historical

surveys of proposed permit areas may be useful in determining premining

land use for undeveloped land (OAC 1501:13-9-17(B)) (Administrative

Record No. OH-1713). The Director has forwarded this comment to the

State for consideration, but he finds that it has no bearing on whether

the amendment can or cannot be approved under 30 CFR 732.17.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Ohio on May 1, 1992, and June 11, 1993, and

revised on January 12, 1993, and October 21, 1993. As noted in findings

3A, 13, 16, and 17, Ohio is required to revise its program to require

the evaluation of diversity and other revegetation success standards

during final bond release inspection and to provide documentation that

it has obtained concurrence from the appropriate State agencies for the

revegetation success standards which apply to areas with commercial

forest and recreation as the proposed postmining land use. As noted in

finding 3B, Ohio is required to revise its proposed formula for

determining the size of sample needed to evaluate the revegetation

success of trees and shrubs. The existing requirement to include in the

Ohio program statistically valid sampling techniques for evaluating

revegetation success is being removed because Ohio has fulfilled this

requirement by including the document ``Guidelines for Evaluating

Revegetation Success'' in the State program.

The Federal regulations at 30 CFR Part 935 codifying decisions

concerning the Ohio 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

conform their programs with the Federal standards without undue delay.

Consistency of State and Federal standards is required by SMCRA.

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 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to a State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved programs. In the oversight

of the Ohio program, the Director will recognize only the approved

program, together with any consistent implementing policies, directives

and other materials, and will require the enforcement by Ohio of such

provisions.

VI. Procedural Determinations

Executive Order 12866

This final rule is exempt from review by the Office of Management

and Budget under Executive Order 12866.

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 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 the Office of Management and Budget 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

counterpart 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. Hence, 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 counterpart Federal regulations.

List of Subjects in 30 CFR Part 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: April 21, 1994.

Alfred E. Whitehouse,

Acting Assistant Director, Eastern Support Center.

For the reasons set out in the preamble, title 30, chapter VII,

subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 935--OHIO

1. The authority citation for part 935 continues to read as

follows:

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

2. Section 935.15 is amended by adding new paragraph (qqq) to read

as follows:

Section 935.15 Approval of Regulatory Program Amendments

* * * * *

(qqq) The following amendment (program amendment 25R and 56R)

pertaining to the Ohio regulatory program, as submitted to OSM on May

1, 1992, and June 11, 1993, and revised on January 12, 1993, and

October 21, 1993, is approved, effective May 2, 1994.

(1) Revisions to OAC 1501:13-4-06(E)(2)(g), Land Use Change; OAC

1501:13-9-15, Revegetation; and OAC 1501:13-9-17(B), Postmining Use of

Land;

(2) Ohio Department of Natural Resources Guidelines for Evaluating

Revegetation Success; and

(3) Division of Reclamation Policy/Procedure Directive, Regulatory

94-2, Planting Plans for Undeveloped Land.

3. Section 935.16 is revised to read as follows:

Section 935.16 Required Regulatory Program Amendments

(a) By July 1, 1994, Ohio shall submit either a proposed amendment

or a description of an amendment to be proposed, together with a

timetable for adoption, to revise the document ``Guidelines for

Evaluating Revegetation Success'' to require that diversity, erosion

control, and other applicable requirements of OAC 1501:13-9-15 (B) and

(C) be evaluated based on identified methodologies at the time of final

bond release and that the formula used to determine the size of sample

needed to evaluate the success of tree and shrub plantings be revised

in accordance with the Director's January 14, 1994, letter to Ohio.

Consistent with OAC 1501:13-9-15(K)(3), Ohio also needs to submit

documentation that it has consulted with and obtained the approval of

the Ohio Division of Wildlife or other responsible agency for the

methods to be used to evaluate diversity at the time of final bond

release.

(b) [Reserved]

[FR Doc. 94-10237 Filed 4-29-94; 8:45 am]

BILLING CODE 4310-05-M