Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

Ohio 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 proposed Program Amendment Number 67 to the

Ohio permanent regulatory program (hereinafter referred to as the Ohio

program) under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The amendment was initiated by Ohio and is intended to make

the Ohio program as effective as the corresponding Federal regulations

concerning postmining land uses. Specifically, the amendment proposes

to clearly identify postmining land use categories, to clarify the

comparison of premining and postmining land uses, to clarify that

``undeveloped land'' may be the designated postmining land use only if

the premining land use is undeveloped land, to clarify that

``forestland'' and ``fish and wildlife habitat'' are distinct

postmining land uses, and to eliminate redundant provisions more

stringent than the Federal regulations for notice and approval of

alternative postmining land uses by other reviewing agencies and for

the design of postmining land use plans by an engineer.

EFFECTIVE DATE: July 27, 1994.

FOR FURTHER INFORMATION CONTACT:

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

Mining Reclamation and Enforcement, 4480 Refugee Road, Suite 201,

Columbus, Ohio 43232. Telephone: (614) 866-0578.

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio 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 Ohio Program

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

approved the Ohio program. Background information on the Ohio program,

including the Secretary's findings, the disposition of comments, and

the conditions of approval 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,

935.12, 935.15, and 935.16.

II. Submission of the Proposed Amendment

By letter dated May 17, 1994 (Administrative Record No. OH-2017),

the Ohio Department of Natural Resources, Division of Reclamation

(Ohio), submitted proposed Program Amendment Number 67. In this

amendment, Ohio proposed to revise one rule at Ohio Administrative Code

(OAC) 1501:13-9-17 to make the Ohio program as effective as

corresponding Federal regulations concerning postmining land uses. OSM

announced receipt of proposed Program Amendment Number 67 in the May

26, 1994, Federal Register (59 FR 27255), and, in the same notice,

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 June 27, 1994.

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. Revisions not specifically

addressed below concern nonsubstantive wording changes, or revised

cross-references and paragraph notations to reflect organizational

changes resulting from this amendment.

1. OAC 1501:13-9-17(C) (1) through (11), Postmining land use

categories. Ohio is revising paragraphs (C) (1) through (11) to clarify

the titles of the eleven approved postmining land use categories. Since

these are nonsubstantive changes, the Director finds that the revised

State rules are no less effective than their Federal counterparts at 30

CFR 701.5.

2. OAC 1501:13-9-17(B)(1), Mining prior to April 10, 1972. Ohio is

revising paragraph (B)(1) to clarify that the postmining land use for

land that was mined pursuant to a license issued prior to April 10,

1972, shall be judged on the basis of the highest and best use that can

be achieved which is compatible with surrounding areas and does not

require the disturbance of areas previously unaffected by mining. The

State's proposed language is consistent with the counterpart Federal

regulations at 30 CFR 816/817/133(b). The Director, therefore, finds

that the revised State rule is no less effective than its Federal

counterpart.

3. OAC 1501:13-9-17(B)(2), Comparison of postmining and premining

land uses. Ohio is deleting the existing requirement in paragraph

(B)(2) that, if the premining land use was changed within five years of

the beginning of mining, the postmining land use shall be compared to

the historic use of the land as well as its use immediately before

mining. There are no Federal counterparts at 30 CFR 816/817.133.

However, the State rule at 1501:13-4-04(I)(1)(a) requires information

on historical land use in permit applications if the land use changed

within five years before mining. This corresponds to the Federal

regulations at 30 CFR 780.23(a)(1) and 784.15(a)(1). Since the State

rule at OAC 1501:13-9-17(B) states that ``[t]he premining uses of land

to which the postmining land uses are compared shall be those which the

land previously supported * * *'' this would include historical land

uses if the land use changed within five years before mining.

Therefore, the Director finds that the deletion of former paragraph

(B)(2) will not render the Ohio program less effective than the Federal

regulations.

4. OAC 1501:13-9-17(B)(2), Undeveloped land use. Ohio is adding a

new requirement in paragraph (B)(2) that land may be returned to the

undeveloped postmining land use category only if the land was

categorized as undeveloped prior to mining. Ohio's proposed rule

clarifies that undeveloped land may be the designated postmining land

use only if the premining land use is undeveloped land. The Director

finds that the proposed rule is not inconsistent with and is no less

effective than the Federal regulations at 30 CFR 816/817.133(b) and 30

CFR 701.5.

5. OAC 1501:13-9-17(C), Undeveloped land use. Ohio is revising

paragraph (C) to require that all proposed changes of land use,

including changes from undeveloped land to forestland or fish and

wildlife habitat, shall be considered an alternative land use change

subject to approval by the Chief of the Ohio Department of Natural

Resources, Division of Reclamation (the Chief). The Director finds that

Ohio's proposed rule is not inconsistent with and is not less effective

than the Federal regulations at 30 CFR 816/817.133 and the Federal

definition of ``land use'' at 30 CFR 701.5.

6. OAC 1501:13-9-17(D)(8), Undeveloped land use. Ohio is deleting

the existing requirement in paragraph (D)(8) that plans to change the

postmining land use to undeveloped land from some other land use

category must treat the land as if the postmining land use were in the

forestland/fish and wildlife habitat category. The proposed deletion of

this paragraph is consistent with revised paragraphs (B)(2) and (C)

which clarify that undeveloped land may be the designated postmining

land use only if the premining land use is undeveloped land. Therefore,

the Director finds that the proposed deletion of paragraph (D)(8) will

not render the Ohio rule less effective than the Federal regulations.

7. OAC 1501:13-9-17(C) (9) and (10), Forestland and Fish and

Wildlife Habitat. Ohio is revising paragraphs (C)(9) and (C)(10) to

clarify that ``forestland'' and ``fish and wildlife habitat'' are

distinct postmining land uses. The ``forest'' category includes land

used for commercial or noncommercial production of wood or wood

products. The Director finds that the revised rules are no less

effective than the Federal regulations at 30 CFR 816/817.133 and the

corresponding Federal definitions at 30 CFR 701.5.

8. OAC 1501:13-9-17(D)(1), Agency review of postmining land uses.

Ohio is deleting the existing requirement in paragraph (D)(1) that

requests for alternative postmining land use must contain a written

statement of views from the authorities having statutory

responsibilities for land use policies and plans. Ohio is also deleting

the requirement in paragraph (D)(1) that the operator must obtain any

required approval of the final land use from local, State, or Federal

land management agencies, including any necessary zoning or other

required changes. The counterpart Federal regulations at 30 CFR 816/

817.133(c) impose no similar requirements. Therefore, the Director

finds that the deletion of these requirements will not render the Ohio

program less effective than the Federal regulations.

9. OAC 1501:13-9-17(D)(6), Agency review of postmining land uses.

Ohio is revising paragraph (D)(6) to clarify that, for approval by the

Chief, proposed alternative postmining land uses must identify measures

to prevent or mitigate adverse effects on fish and wild not render the

Ohio program less effective than the Federal regulations.

9. OAC 1501:13-9-17(D)(6), Agency review of postmining land uses.

Ohio is revising paragraph (D)(6) to clarify that, for approval by the

Chief, proposed alternative postmining land uses must identify measures

to prevent or mitigate adverse effects on fish and wildlife and on

threatened or endangered plants or animals or their critical habitats

and must demonstrate that an opportunity to comment has been provided

in accordance with OAC section 1501:13-9-11 to appropriate State and

Federal fish and wildlife management agencies. There are no Federal

counterparts at 30-CFR 816/817.133. Therefore, the Director finds that

the revisions do not render the Ohio program less effective than the

Federal regulations.

10. OAC 1501:13-9-17(D)(9), Agency review of postmining land use.

Ohio is deleting the existing requirement in paragraph (D)(9) that

alternative postmining land use plans must demonstrate that the

operator has provided written notice of the proposed land use to

appropriate State and Federal agencies with instructions for those

agencies to provide any comments on the proposed land use to the Chief.

The Federal requirements at 30 CFR 816/817.133 do not impose a similar

requirement. Therefore, the Director finds that the deletion of this

requirement will not render the Ohio program less effective than the

Federal regulations.

11. OAC 1501:13-9-17(D)(2), Design of postmining land use plans by

an engineer. Ohio is deleting the existing requirement at paragraph

(D)(2) that postmining land use plans must be designed under the

general supervision of a registered engineer or other appropriate

professional. There are no similar Federal requirements at 30 CFR 816/

817.133. The Director, therefore, finds that the deletion of paragraph

(D)(2) will not render the Ohio program less effective that the Federal

regulations.

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 testify 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 Ohio program.

The U.S. Department of Agriculture, Soil Conservation Service,

stated that it does not recommend that any forestland be grazed as

indicated in paragraph (C)(3) of OAC 1501:13-9-17. The only change

proposed by Ohio at paragraph (C)(3) was to clarify the title of the

approved postmining land use. Therefore, the Director will not address

this comment.

No other comments were received.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the EPA with respect to any provisions of a

State program amendment that relate to air or water quality standards

promulgated under the authority of the Clean Air Act (42 U.S.C. 7401 et

seq.) or the Clean Water Act (33 U.S.C. 1251 et seq.). None of the

revisions that Ohio proposed to make in this amendment pertain to air

or water quality standards. Therefore, OSM did not request EPA's

concurrence.

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (Administrative Record No. OH-1993). The

EPA responded on June 20, 1994 (Administrative Record No. OH-2030),

that it reviewed the proposed amendment but had no comments.

V. Director's Decision

Based on the above findings, the Director approves the proposed

program amendment as submitted by Ohio on May 17, 1994.

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.

VI. Procedural Determinations

Executive Order No. 12866

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

and Budget under Executive Order 12866 (Management Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (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 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

which require approval by the Office of Management and Budget under 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. 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 corresponding Federal regulations.

List of Subjects in 30 CFR Part 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 20, 1994.

Patricia P. Acker,

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 paragraph (rrr) to read as

follows:

Sec. 935.15 Approval of regulatory program amendment.

* * * * *

(rrr) The following rules, as submitted to OSM on May 17, 1994, are

approved effective July 27, 1994: Program Amendment Number 67 which

consists of revisions to the Ohio Administrative Code (OAC) at 1501:13-

9-17 concerning postmining use of land.

[FR Doc. 94-18201 Filed 7-26-94; 8:45 am]

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