Ohio Regulatory Program Amendment

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-232; Combined Program Amendments Numbers 25R and 56R]

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 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 is intended to revise Ohio's ``Guidelines for

Evaluating Revegetation Success'' to be consistent with the

corresponding Federal regulations. These guidelines describe the

sampling methods which Ohio proposes to use to evaluate revegetation

success prior to bond release on areas with different postmining land

uses.

EFFECTIVE DATE: May 11, 1995.

FOR FURTHER INFORMATION CONTACT:

Mr. 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. Discussion of the Proposed Amendment.

III. Director's Findings.

IV. Summary and Disposition of Comments. [[Page 25141]]

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

On October 21, 1993 (Administrative Record No. OH-1944), the Ohio

Department of Natural Resources, Division of Reclamation (Ohio)

submitted a final combined version of two previous program amendments,

Program Amendments Numbers 25R and 56R (PA 25R and PA 56R). In this

combined submission, Ohio proposed to revise parts of the Ohio

Administrative Code (OAC) pertaining to land use and revegetation

success standards. Ohio also submitted ``Guidelines for Evaluating

Revegetation Success'' establishing the sampling methods for measuring

vegetative ground cover, tree and shrub stocking, and crop and pasture

productivity.

In the May 2, 1994, Federal Register (59 FR 22507), the Acting

Assistant Director of OSM announced his decision approving combined PA

25R and 56R with certain exceptions. In that decision, the Assistant

Director required Ohio to submit a proposed amendment to modify its

``Guidelines for Evaluating Revegetation Success'' to require that

species diversity, erosion control, and other applicable requirements

of OAC 1501:13-9-15 (B) and (C) be evaluated at the time of final bond

release. The Assistant Director also required that Ohio revise the

formula for determining the sample size for evaluating tree and shrub

success and provide documentation of concurrence by other agencies with

specific portions of Ohio's evaluation methods.

By letter dated July 19, 1994 (Ohio Administrative Record OH-2032),

Ohio resubmitted revised ``Guidelines for Evaluating Revegetation

Success'' which were intended to address the Assistant Director's

requirements in his May 2, 1994, decision on PA 25R and 56R. OSM

announced its receipt of the revised guidelines in the Federal Register

(59 FR 38576) on July 29, 1994. The public comment period ended on

August 29, 1994.

By letter dated October 21, 1994, (Administrative Record No. OH-

2066), OSM provided its questions and comments to Ohio on the July 19,

1994, submission of Ohio's revised guidelines. These questions and

comments required further changes to the guidelines in addition to the

changes required as part of the May 2, 1994, decision by the Assistant

Director of OSM.

By letter dated December 20, 1994 (Administrative Record OH-2075),

Ohio resubmitted further revisions to the guidelines which were

intended to address the questions and comments in OSM's October 21,

1994, letter. OSM announced its receipt of the revised guidelines in

the Federal Register (60 FR 3184) on January 13, 1995. The public

comment period ended on February 13, 1995.

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.

All of the proposed changes in this Ohio program amendment concern

Ohio's ``Guidelines for Evaluation of Revegetation Success.'' None of

the proposed changes modify Ohio's statutes in the Ohio Revised Code or

rules in the Ohio Administrative Code (OAC). Only substantive changes

to Ohio's guidelines are discussed below. Revisions which are not

discussed below concern editorial or nonsubstantive wording changes

intended to improve the clarity and readability of the guidelines.

Ohio's proposed guidelines govern reclamation of surface mining

activities and the surface effects of 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, 30 CFR parts 816 and part 817 are substantively

identical. OSM will discuss the proposed changes to Ohio's guidelines

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.

(a) Verification That the Soil Surface is Stabilized From Erosion

Ohio is revising the first paragraph in Section A of its guidelines

to require Ohio inspectors to verify, at the time of the final bond

release inspection, that the vegetative cover is successfully

stabilizing the soil surface from erosion. This verification enforces

one of the general requirements for revegetation at OAC section

1501:13-9-15(B)(4), the State counterpart to 30 CFR 816.111(a)(4). The

Director therefore finds that this revision to the Ohio guidelines

brings those guidelines into conformity with other provisions of the

Ohio program and is no less effective than the corresponding Federal

rule at 30 CFR 816.111(a)(4).

(B) Evaluation of Vegetative Species Composition and Diversity

Ohio is revising the first paragraph in Section A of its guidelines

to require Ohio inspectors to evaluate vegetative species composition

and diversity at the time of the final bond release inspection. The

inspector's evaluation will be based primarily on visual observations

in the field and will be documented using a new diversity checklist,

included as Attachment 4 to the guidelines. Ohio is also adding a new

Section A.VI to the guidelines explaining the concept of species

diversity and the use of the new diversity checklist.

This evaluation of species diversity enforces one of the general

requirements for revegetation at OAC section 1501:13-9-15(b) (1) and

(2), the State counterparts to 30 CFR 816.111(a) (1) and (2). The

Director therefore finds that this revision to the Ohio guidelines

brings those guidelines into conformity with other provisions of the

Ohio program and is no less effective than the corresponding Federal

rules at 30 CFR 816.111(a) (1) and (2).

As part of his May 2, 1994, decision approving combined PA 25R and

56R, the Assistant Director of OSM also required Ohio to submit

documentation that it has consulted with and obtained the approval from

the responsible agency for the methods which Ohio will use to evaluate

species diversity. As part of its July 19, 1994, submission of PA 25R

and 56R, Ohio submitted a memorandum dated July 19, 1994

(Administrative Record OH-2039), from the Acting Chief of the Division

of Natural Areas and Preserves (DNAP), Ohio Department of Natural

Resources. In this memorandum, DNAP discussed its participation in

developing the diversity checklist and approved Ohio's use of that

checklist in evaluating revegetation success. This concurrence by DNAP

satisfies the Assistant Director's requirement.

[[Page 25142]]

(C) Proper Handling and Planting of Trees and Shrubs

Ohio is revising section B.2 of its guidelines to clarify the

procedures to be used to protect tree seedlings and shrubs during

planting. Ohio is adding a statement that tree plantings in stream

buffer zones must comply with Ohio Policy/Procedure Directive

Regulatory 94-1. Ohio is adding a statement establishing the seasonal

time period for planting of willow or other stakes or posts. Ohio is

clarifying the approved methods of carrying seedlings during planting.

Ohio is adding a specific provision that roots cannot be exposed once a

seedling is planted. Finally, Ohio is adding a provision that stakes

and posts shall be planted so that at least 40 to 50 percent of their

total length is beneath the soil surface. The Director finds that these

revisions to the Ohio guidelines clarify and improve those guidelines

and are consistent with the corresponding Federal rules at 30 CFR

816.111 and 816.116.

(D) Sampling Methods

(1) Formulas for Sampling Adequacy: Ohio is revising section B.1.IV

and Attachment 7 of its guidelines to correct three errors in the

formulas for determining the size of the samples needed to evaluate the

success of tree and shrub plantings. Ohio is also revising section

C.1.IV and Attachment 11 of its guidelines to make corresponding

corrections to the formulas for determining the size of the samples

needed to evaluate the productivity of pasture, grazing land, and

cropland.

(2) Procedure for evaluating ground cover using less than 100

samples: Ohio is revising sections A.1.II and A.1.IV and is deleting

old Attachment 4 in its guidelines in order to require a minimum of 100

samples to evaluate ground cover.

(3) Reference to ``subsamples, for hay'': Ohio is deleting the

reference in section C.1.V of the guidelines to ``subsamples, for

hay.''

The Director finds that, with these three revisions, the Ohio

guidelines are consistent with the corresponding Federal rules at 30

CFR 816.111 and 816.116.

(E) State Agency Concurrence on Stocking Standard for Commercial Forest

In his May 2, 1994, decision approving combined PA 25R and 56R, the

Acting Assistant Director of OSM also required Ohio to provide

documentation that Ohio has obtained approval from the Division of

Forestry (DOF), Ohio Department of Natural Resources, for the standard

regarding the maximum percentage of non-commercial trees planted on

areas with commercial forest as the proposed postmining land use. As

part of its July 19, 1994, submission of PA 25R and 56R (Administrative

Record OH-2032), Ohio submitted a memorandum dated July 11, 1994, from

the Chief of DOF. In this memorandum, DOF agreed with Ohio's standard

that a maximum of 25 percent of the trees planted on lands reclaimed to

commercial forest may be non-commercial trees and stated that this

standard is appropriate and desirable. This concurrence by DPF

satisfies the Assistance Director's requirement.

(F) Prime Farmland Crop Productivity

In Its October 21, 1994, letter to Ohio (Administrative Record No.

OH-2066), OSM recommended that Ohio should revise its guidelines to

clarify that the first year of crop production cannot be included in

determining revegetation success of reclaimed prime farmland. As

suggested by OSM, Ohio is revising the third paragraph of Part C of the

guidelines to exclude the first year's yields from consideration in

meeting prime farmland crop productivity.

The Director finds that, with this revision, the Ohio guidelines

are no less effective than the corresponding Federal rules at 30 CFR

810.11 regarding prime farmland and 30 CFR 816.116(c)(2) regarding

revegetation success.

For the reasons discussed above in Sections III.A.B, and D, the

Director is removing the requirement at 30 CFR 935.16(a) that Ohio

revise its ``Guidelines for Evaluating Revegetation Success.''

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 July 29, 1994, and

January 13, 1995. No public comments were received. No public hearings

were held as no one requested the opportunity to provide testimony.

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 three

other Federal agencies with an actual or potential interest in the Ohio

program. Nonsubstantive comments were received from SCS and from the

Mine Safety and Health Administration. No other comments were received.

The Director also solicited comments on the proposed amendment from

the Ohio Historic Preservation Office (OHPO). OHPO commented that, in

areas where historic properties have been avoided using a buffer zone

during mining operations, the reclamation of the strip mine area around

the buffer zone should be consistent with the protected area within the

buffer zone. The Director concurs with this comment. OAC sections

1501:13-9-15(C)(1) (a) and (d) require that reestablished plant species

must be compatible with the approved postmining land use and with the

plant and animal species of the surrounding area. This surrounding area

would include protected areas within buffer zones. The Director finds

that these existing Ohio rules adequately provide for compatible

reclamation around buffer zones and that nothing in the proposed

amendment negatively affects the effectiveness of these existing rules.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Ohio on July 19, 1994, and revised on

December 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.

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. [[Page 25143]]

VI. Procedural Determinations

Executive Order 12866

This final 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 other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

entities under the Regulatory Flexibility Act (5 U.S. 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: May 4, 1995.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating 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 (vvv) to read

as follows:

Sec. 935.15 Approval of regulatory program amendments.

* * * * *

(vvv) The following amendment (Combined Program Amendments 25R and

56R) pertaining to the Ohio regulatory program, as submitted to OSM on

July 19, 1994, and revised on December 20, 1994, is approved, effective

May 11, 1995: Ohio Guidelines for Evaluating Revegetation Success

Sec. 935.16 [Removed and reserved]

3. In Sec. 935.16, paragraph (a) is removed and reserved.

[FR Doc. 95-11649 Filed 5-10-95; 8:45 am]

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