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 65 Revised

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

update rule references and to make the Ohio program as effective as the

corresponding Federal regulations. The amendment concerns the authority

of successor agencies within the Ohio Department of Natural Resources

and the availability of Ohio's permit, inspection, and enforcement

records to the public.

EFFECTIVE DATE: October 12, 1994.

FOR FURTHER INFORMATION CONTACT:

Robert H. Mooney, Acting 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 February 23, 1994 (Administrative Record No. OH-

1990), the Ohio Department of Natural Resources, Division of

Reclamation (Ohio), submitted proposed Program Amendment Number 65 (PA

65). In that submission, Ohio proposed to revise two rules in the Ohio

Administrative Code (OAC) to correct outdated rule references and to

adopt language similar to corresponding Federal regulations concerning

the availability of documents for public view.

As part of PA 65, Ohio provided a draft example of the public

notice on availability of documents which Ohio would post at one of the

two locations specified by OAC section 1501:13-1-10(B).

OSM announced receipt of the proposed amendment in the March 10,

1994, Federal Register (59 FR 11227), and, in the same document, opened

the public comment period and provided an opportunity for a public

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

period closed on April 11, 1994.

By letter dated June 17, 1994 (Administrative Record No. OH-2029),

OSM provided its comments to Ohio on the February 23, 1994, submission

of PA 65. By letter dated July 20, 1994 (Administrative Record No. OH-

2033), Ohio resubmitted Program Amendment Number 65 Revised (PA 65R)

which is intended to resolve the requirements in OSM's June 17, 1994,

letter. Ohio proposed new revisions to one rule and modified the draft

example of the notice on the availability of documents.

OSM reopened the public comment period in the August 5, 1994,

Federal Register (59 FR 39994). The public comment period closed on

August 22, 1994.

In response to a comment made by the Soil Conservation Service

(SCS), United States Department of Agriculture (Ohio Administrative

Record No. OH-2056), OSM requested that Ohio provide a written

statement for the Administrative Record clarifying the points of

agreement between the Division and the SCS. By letter dated September

23, 1994 (Ohio Administrative Record No. OH-2058), Ohio provided OSM

with its intentions regarding the filing of coal mining related

documents at SCS field offices.

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.

1. Corrected Rule Reference

OAC section 1501:13-1-05 establishes that, in the event of a

consolidation or reorganization of offices within the Ohio Department

of Natural Resources (ODNR), the OAC rules which now apply to the

Division of Reclamation shall apply to and be the rules of any other

Division or office which succeeds the Division of Reclamation as the

administering agency for Ohio Revised Code Chapter 1513. Ohio is

revising this rule to expand the specific references to the Division of

Reclamation's rules to cover additional rules adopted by Ohio since OAC

section 1501:13-1-05 was first promulgated. There is no counterpart

Federal rule. However, the Director finds that this revision will not

render the Ohio program inconsistent with the requirements of SMCRA and

the Federal regulations.

2. Availability of Records

Ohio is revising OAC section 1501:13-1-10 paragraph (B)(2) to

provide additional ways that members of the public may review Ohio's

permit, inspection, and enforcement documents. Ohio is proposing that

local district offices of the ODNR, Division of Reclamation, shall

maintain copies of all documents pertaining to both existing and

proposed mining operations within their jurisdiction, or post for

public inspection a description of the information available for

mailing and a procedure for obtaining such information. If Ohio does

not maintain a district office in the specific county of the existing

or proposed mining operation, Ohio shall either:

(a) Make copies of all records, reports, inspection materials, and

other subject information available for public inspection at that

county's office of the county recorder or at that county's office of

the Soil Conservation Service (SCS) of the United States Department of

Agriculture; or

(b) Post, at that county's office of the county recorder or at that

county's office of the SCS, a description of the documents available

for inspection and the procedure by which members of the public may

request copies of these documents. At its own expense, Ohio shall

promptly provide copies of documents by mail upon request of any

resident of the area of the mining operation.

The counterpart Federal rule at 30 CFR 840.14(c) provides that the

regulatory authority shall make copies of these documents available for

public inspection or maintain a description of the information

available for mailing and the procedure for obtaining such information

at a Federal, State or local government office in the county where

mining is occurring or proposed to occur. The proposed rule provides

Ohio with options for meeting the obligation to make permitting

documents available to the public in the county where mining is

occurring or proposed to occur. The Director, therefore, finds that the

revised State rule is no less effective than 30 CFR 840.14(c).

Ohio has designed a public notice on availability of documents

which Ohio would post at that county's office of the county recorder or

at that county's office of the SCS as specified in OAC section 1501:13-

1-10(B)(2)(b). This proposed notice clarifies that public comments on

applicable permitting, inspection, enforcement, and regulatory

documents shall also be available for public inspection and copying.

Ohio is also listing in the public notice the counties which are under

the jurisdiction of each of its five coal-regulatory district offices.

The Director finds that the proposed notice satisfies the requirements

of and is no less effective than 30 CFR 840.14(c)(2).

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. The Ohio Historic

Preservation Office provided comments in support of the proposed

amendment. No other 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 Labor, Mine Safety and Health

Administration, acknowledged the proposed amendment with no comment.

The U.S. Department of Agriculture, Soil Conservation Service (SCS),

expressed concern with the requirement that copies of all records,

reports, inspection materials, and other information be retained in SCS

field offices. The SCS noted that this could involve a substantial

amount of information in some counties with accelerated mining

activity. However, the SCS was not against posting for public

inspection a description of the information available for mailing and a

procedure for obtaining such information upon request by any resident

of the area where mining is occurring. Based on Ohio's letter dated

September 23, 1994 (Administrative Record N. OH-2058), Ohio will make

sure that any approach for filing documents or posting notices at SCS

offices would be acceptable to the SCS. As discussed above, the

Director has determined that Ohio's options for meeting the obligation

to make permit, inspection, and enforcement documents available to the

public in the county where the mining is occurring or proposed to occur

are no less effective than the Federal regulations.

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 Air 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 March 16, 1994, (Administrative Record No. OH-1999)

that Ohio should add language in its proposed amendment to cover both

existing and proposed mining operations. The Director notes that Ohio's

revised amendment at OAC section 1501:13-1-05 (B)(2) and (B)(2)(b)

covers both existing and proposed mining operations and therefore

satisfies EPA's concerns.

V. Director's Decision

Based on the above findings, the Director approves the proposed

program amendment as submitted by Ohio on February 23, 1994, and

revised and resubmitted on July 20, 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 (OMB) 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 OMB under the Paperwork Reduction Act (44

U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the corresponding Federal regulations.

List of Subjects in 30 CFR Part 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 5, 1994.

Richard J. Seibel,

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 (ttt) to read as

follows:

Sec. 935.15 Approval of regulatory program amendment.

* * * * *

(ttt) The following amendment to the Ohio regulatory program, as

submitted to OSM on February 23, 1994, and revised on July 20, 1994, is

approved effective October 12, 1994: Program Amendment Number 65

Revised which consists of revisions to the Ohio Administrative Code

(OAC) at 1501:13-1-05 concerning a successor to Ohio to include two

rules adopted since 1501:13-1-05 was first promulgated, 1501:13-1-10

paragraph (B)(2) concerning options for making permitting and other

documents available to the public in the vicinity of coal mining

operations, and the public notice on the availability of documents.

[FR Doc. 94-25172 Filed 10-11-94; 8:45 am]

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