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 with one exception, proposed Program

Amendment Number 62 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 make the Ohio program as effective

as the corresponding Federal regulations. The amendment concerns the

removal of siltation structures prior to two years after the last

augmented seeding upon a demonstration that revegetation is the best

technology currently available for sediment control.

EFFECTIVE DATE: November 15, 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

submission, 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 March 4, 1993 (Administrative Record No. OH-1841),

the Ohio Department of Natural Resources, Division of Reclamation

(Ohio), submitted proposed Program Amendment Number 62 (PA 62). In this

amendment, Ohio proposed to revise three rules in the Ohio

Administrative Code (OAC) to authorize the removal of siltation

structures prior to two years after the last augmented seeding upon a

demonstration that revegetation is the best technology currently

available (BTCA) for sediment control. As part of and in support of the

amendment, Ohio also submitted Administrative Record information

discussing Ohio's intended implementation of this proposal.

OSM announced receipt of proposed PA 62 in the April 2, 1993,

Federal Register (58 FR 17372), 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 May 3, 1993.

By letter dated September 20, 1993 (Administrative Record No. OH-

1931), OSM provided Ohio with its comments on the March 4, 1993,

submission of PA 62.

By letter dated October 20, 1993 (Administrative Record No. OH-

1943), Ohio provided its initial response to OSM's September 20, 1993,

comments on PA 62. Ohio requested additional time to develop

information required by OSM's September 20, 1994, letter and requested

technical assistance from OSM in developing that information. Ohio and

OSM staff met on February 11, 1994 (Administrative Record No. OH-1988),

to discuss the available information on pond removal and erosion

control.

By letter dated March 1, 1994 (Administrative Record No. OH-1994),

Ohio resubmitted Program Amendment Number 62 Revised (PA 62R). As part

of and in support of PA 62R, Ohio submitted a draft Policy/Procedure

Directive entitled ``Removal of Siltation Structures and Termination of

NPDES Monitoring'' and accompanying form ``Request to Remove Siltation

Structure and Termination of Two Year Period.'' Ohio also submitted

additional documents in support of PA 62R by letter dated March 10,

1994 (Administrative Record No. OH-1996). In total, PA 62R consists of

new proposed revisions to three Ohio rules, revisions to an existing

Ohio Policy/Procedure Directive, and five technical study articles

intended to correlate vegetative ground cover with runoff and soil

loss.

OSM reopened the public comment period for proposed PA 62R in the

March 30, 1994, Federal Register (59 FR 14812) and provided an

opportunity for a public hearing on the adequacy of the revised

amendment. The public comment period closed on April 14, 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.

1. OCA 1501:13-4-05 paragraph (E)(1)(g) and 13-4-14 paragraph

(E)(1)(f). Ohio is revising these two paragraphs to provide that the

plan in each permit application for protection of the hydrologic

balance shall describe the measures to be taken to prevent, to the

extent possible using the BTCA, additional contributions of suspended

solids to streamflow, or runoff outside the permit area. The Chief may

determine that vegetation is BTCA for this prevention upon a

demonstration by the permittee that vegetation is established and that

drainage from the area meets effluent limitations and does not

contribute suspended solids to streamflow. If the applicant proposes to

make such a demonstration after vegetation is established and to remove

siltation structures sooner than two years after the last augmented

seeding of a drainage area, the applicant shall state such intentions

in the timetable and plans for removal of sediment control structures

required by paragraphs (H)(1)(b)(iv) or (H)(1)(c)(iv) of OAC 1501:13-4-

05 or OAC 1501:13-4-14.

2. OAC 1501:13-4-05 and 13-4-14 Paragraphs (H)(1)(b)(iv). Ohio is

revising these two paragraphs to provide that the detailed design plans

for impoundment structures that meet or exceed size or other criteria

of the Mine Safety and Health administration (MSHA) shall describe the

timetable and plans to remove each structure, if appropriate. The

applicant must include a statement of intent if the applicant proposes

to demonstrate that vegetation is BTCA and proposes to remove siltation

structures sooner than two years after the last augmented seeding of

the drainage area.

3. OAC-1501:13-4-05 and 13-4-14 Paragraphs (H)(1)(c)(iv). Ohio is

revising these two paragraphs to insert the same proposed language as

quoted above for paragraph (H)(1)(b)(iv) in order that the language

also apply to the detailed design plans for impoundment structures that

do not meet the size or other criteria of MSHA.

4. OAC 1501:13-9-04 Paragraph (B)(1). Ohio is revising this

paragraph to provide that all surface drainage from the disturbed area

shall be passed through a sedimentation pond before leaving the permit

area until vegetation is established, at which time vegetation of the

area may be BTCA, provided that drainage from the area:

(a) Meets effluent limitations; and

(b) Does not contribute suspended solids to streamflow.

5. OAC 1501:13-9-04 Paragraph (G)(2)(e). Ohio is revising this

paragraph to provide that in no case shall a siltation structure be

removed sooner than two years after the last augmented seeding unless,

after vegetation is established, the operator demonstrates and the

Chief approves the Administrative Code alternative methods of sediment

control as BTCA under paragraph (E)(1)(g) of OAC 1501:13-4-05 or

paragraph (E)(1)(f) of OAC 1501:13-4-14.

The previously described additions to the Ohio rules have no direct

Federal counterparts. These changes are in response to a remand of the

Federal rules found at 30 CFR 816/817.46(b)(2). In re: Permanent

Surface Mining Regulation Litigation (III) 620 F.Supp. 1519 (D.D.C.

1985). These Federal rules were remanded by the District Court because

the preamble to the regulations failed to provide a sufficient

rationale for requiring siltation structures in every instance.

Subsequently, OSM suspended these rules on November 26, 1986 (51 FR

41957).

The effect of this suspension is that State regulatory authorities

must determine on a case by case basis what is BTCA rather than

requiring, in every situation, that drainage be passed through

siltation structures. The use of BTCA is required by sections

515(b)(10)(B) and 516(b)(9)(B) of SMCRA. These statutory sections

require that surface coal mining operations be conducted ``so as to

prevent, to the extent possible using the best technology currently

available, additional contributions of suspended solids to streamflow,

or runoff outside the permit area, but in no event shall contributions

be in excess of requirements set by applicable State or Federal law.''

This suspension also affects 30 CFR 816/817.46(b)(5). Subsection (b)(5)

required that siltation structures remain in place at least two years

after the last augmented seeding. Nonetheless, now that BTCA is

required for sediment control rather than siltation structures, these

siltation structures may be removed sooner than two years after the

last augmented seeding provided the replacement is BTCA.

The additions to the Ohio rules allow the removal of siltation

structures sooner than two years after the last augmented seeding

provided that the revegetation is determined by Ohio to be BTCA and the

drainage meets the effluent limitations and is not contributing

suspended solids to the streamflow. These revisions are consistent with

the remand of the Federal rules and the effects of the rules'

suspension. Therefore, the Director finds that the amendments to the

Ohio rules, which were previously described, are in accordance with

515(b)(1)(B) and 516(b)(9)(B) of SMCRA.

Ohio is also revising its Policy/Procedure Directive, Inspection

and Enforcement 93-4, entitled ``Removal of Siltation Structures and

Termination of NPDES Monitoring.'' The purpose of this policy directive

is to provide standard criteria for use by Ohio's Inspection and

Enforcement Section to review the permittee's request for the removal

of siltation structures on ``D'' permits and to terminate NPDES

monitoring and sediment storage requirements. Under the directive, a

permittee will be required to complete the attached form ``Request to

Remove Siltation Structure and Termination of Two Year Period.'' In

order for Ohio to approve each request for vegetation as BTCA, there

must have been no augmented seeding of the disturbed area for at least

one year and vegetative ground cover must equal or exceed 90 percent.

This Policy/Procedure Directive and its accompanying form implement

the proposed regulations. Therefore, except as noted below, the

revisions to the Policy/Procedure Directive and the accompanying form

are in accordance with 515(b)(10)(B) and 516(b)(9)(B) of SMCRA. OSM is

deferring its decision on the portion of the revised policy directive

which states: ``NOTE: Temporary ponds must be reclaimed at least 90

days prior to approval of the Phrase III release.'' This language is

related to Ohio Program Amendment Number 61R (PA 61R), which was

approved on August 16, 1993 (59 FR 43261), with the exception of OAC

1501:13-9-15 (F)(5), (6) and (7). OSM deferred its decision on OAC

1501:13-9-15 (F) (5), (6) and (7).

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. Because no one

requested an opportunity to speak at a public hearing, no hearing was

held. The National Coal Association supported the amendment.

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; and the U.S. Army

Corps of Engineers responded that they had no comments. The U.S.

Department of Labor, MSHA, commented that although MSHA requires as

part of an abandonment plan for all impoundments, a timetable and plans

for the removal of any impoundments, the proposed amendment did not

conflict with MSHA regulations. MSHA also commented that nothing in

this proposed amendment should be interpreted or construed as providing

relief or exemption from the Mine Safety and Health Act. In response,

the Director notes that with respect to impoundments, both the State

and Federal rules specifically incorporate MSHA rules by reference. The

Director notes that the Ohio rules cannot be construed as superseding,

amending or repealing MSHA because such activities are prohibited under

section 702 of SMCRA.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

On March 16, 1993, OSM solicited EPA's concurrence with the

proposed amendment (Administrative Record No. OH-1843). On May 11,

1993, EPA gave its written concurrence (Administrative Record No. OH-

1883).

V. Director's Decision

Based on the above findings, the Director approves with one

exception, the proposed program amendment as submitted by Ohio on March

4, 1993, and revised on March 1, 1994, and March 10, 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 rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory 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. 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: November 4, 1994.

Tim L. Dieringer,

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. In Sec. 935.15, a new paragraph (uuu) is added to read as

follows:

Sec. 935.15 Approval of regulatory program amendments.

* * * * *

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

submitted to OSM on March 4, 1993, and revised on March 1, 1994, and

March 10, 1994, is approved with one exception noted below effective

November 15, 1994: Revised Amendment Number 62 which consists of:

(1) Revisions to the Ohio Administrative Code (OAC) at 1501:13-4-

05(E)(1)(g), (H)(1)(b)(iv), (H)(1)(c)(iv); 1501:13-4-14(E)(1)(f),

(H)(1)(b)(iv), (H)(1)(c)(iv); and 1501:13-9-04(B)(1) (a) and (b), and

(G)(2)(e) concerning the removal of siltation structures prior to two

years after the last augmented seeding upon a demonstration that

revegetation is the best technology currently available for sediment

control.

(2) Revisions to Ohio's Policy/Procedure Directive, Inspection and

Enforcement 93-4, entitled ``Removal of Siltation Structures and

Termination of NPDES Monitoring'' with its attached form, except for

that portion concerning the reclamation of a temporary pond which is

deferred until such time as final action is taken on Program Amendment

Number 61.

[FR Doc. 94-28120 Filed 11-14-94; 8:45 am]

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