Ohio Regulatory Program Amendment

[[Page 25613]]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-231; Amendment Number 68R]

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 amendment was initiated by Ohio and is intended to make the Ohio

program as effective as the corresponding Federal regulations

concerning contemporaneous reclamation. Specifically, the amendment

defines the terms ``area mining,'' ``auger mining,'' and ``contour

mining''; specifies information required in permit operation plans and

mining reclamation plans; establishes time and distance schedules for

backfilling and grading for mining methods other than area and contour

mining; and requires the contemporaneous commencement of augering.

EFFECTIVE DATE: May 12, 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.

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

By letter dated May 17, 1994 (Administrative Record No. OH-2018),

the Ohio Department of Natural Resources, Division of Reclamation

(Ohio), submitted proposed Program Amendment Number 68 (PA 68). In this

amendment, Ohio proposed to revise three rules in the Ohio

Administrative Code (OAC) at 1501:13-1-02, 1501:13-4-05, and 1501:13-9-

13 to make the Ohio program as effective as the Federal regulations

concerning contemporaneous reclamation. As part of and in support of

proposed PA 68, Ohio also submitted a draft Policy/Procedure Directive

(PPD) which provides additional clarification and guidance on the

proposed Ohio rule requirements for contemporaneous reclamation.

OSM announced receipt of the proposed amendment in the May 26,

1994, Federal Register (59 FR 27253), 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.

OSM and Ohio staff met on August 22, 1994, to discuss OSM's

questions and concerns about PA 68 (Administrative Record No. OH-2093).

In response to OSM's August 22, 1994, questions and comments, Ohio

provided Revised Program Amendment Number 68 (PA 68R) by letter dated

March 1, 1995 (Administrative Record No. OH-2094). In PA 68R, Ohio

proposed further changes to the three rules and to the draft PPD. OSM

announced its receipt of PA 68R in the March 17, 1995, Federal Register

(60 FR 14400). The public comment period ended on April 3, 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. Only substantive changes to

Ohio's rules and the new Ohio PPD are discussed below. Rule revisions

which are not discussed below concern paragraph notations or editorial

or nonsubstantive wording changes intended to improve the clarity and

readability of the rules.

1. Area Mining

Ohio is adding new OAC section 1501:13-1-02 paragraph (J) to define

the term ``area mining'' to mean a method of surface coal mining that

involves making a series of parallel mining cuts against the highwall

created from the initial mining cut. Although there is no counterpart

Federal definition for this term, the Director finds that the proposed

definition is not inconsistent with the requirements of SMCRA and the

Federal regulations.

2. Auger Mining

Ohio is revising its definition of the term ``auger mining'' in OAC

section 1501:13-1-02 paragraph (K) to mean drilling holes or cutting

into an exposed coal seam at a highwall and transporting the coal to

the surface along an auger bit, by conveyor, or by other means. The

Director finds that this definition is no less effective than the

corresponding Federal definition of ``auger mining'' at 30 CFR 701.5.

3. Contour Mining

Ohio is adding new OAC section 1501:13-1-02 paragraph (CC) to

define the term ``contour mining'' to mean a method of surface coal

mining that involves making an initial mining cut along the contour of

a hillside to the maximum highwall height and then making subsequent

cuts along the same contour, placing the spoil in the preceding cut

where the coal has been removed. Although there is no counterpart

Federal definition for this term, the Director finds that the proposed

definition is not inconsistent with the requirements of SMCRA and the

Federal regulations.

4. Permit Operation Plan

Ohio is adding new OAC section 1501:13-4-05 paragraphs (A)(2)(a)

(i) through (iv) to require that the mining operation plan in permit

applications shall, at a minimum, identify the mining method to be

used, the maximum extent of cover to be mined, the locations where

mining will begin and end, and the direction of mining. For mining

methods other than area or contour mining, the mining operation plan

shall also include other information that demonstrates the orderly and

reasonable progression of mining. Such information shall include, but

not be limited to, spoil placement plans, proposed locations of haul

roads, and the intended timing of the mining operation. Mining

operation plans shall specify how the mining operation will meet the

time and distance requirements for contemporaneous reclamation

established in OAC section 1501:13-9-13.

Ohio's existing rule at OAC section 1501:13-4-05 paragraph

(A)(2)(a) is substantively identical to the corresponding Federal

regulation at 30 CFR 780.11(a) concerning the general

[[Page 25614]] requirements for mining operation plans. Although there

are no corresponding Federal regulations to the new requirements

proposed in OAC section 1501:13-4-05 paragraphs (A)(2)(a) (i) through

(iv), the Director finds that these new requirements are reasonable and

are not inconsistent with the Federal regulations at 30 CFR 780.11(a)

and with the revisions which Ohio is making elsewhere in this rule and

in other rules.

5. Mining Reclamation Plan

Ohio is revising OAC section 1501:13-4-05 paragraph (D)(2)(a) to

require that reclamation plans in permit applications shall contain a

detailed timetable for the completion of each major step of the

reclamation plan specific to the described mining method and addressing

the contemporaneous reclamation requirements of OAC section 1501:13-9-

13.

Ohio's existing rule at OAC section 1501:13-4-05 paragraph

(D)(2)(a) is substantively identical to the corresponding Federal

regulation at 30 CFR 780.18(b)(1) concerning the timetable for

completion of each major step in the reclamation plan. Although there

are no corresponding Federal regulations to the new requirements

proposed in OAC section 1501:13-4-05 paragraph (D)(2)(a), the Director

finds that these new requirements are reasonable and are not

inconsistent with the Federal regulations at 30 CFR 780.18(b)(1) and

with the revisions which Ohio is making elsewhere in this rule and in

other rules.

6. Contemporaneous Reclamation

A. Ohio is revising OAC section 1501:13-9-13 paragraphs (A),

(A)(1), and (A)(2) and is adding new paragraphs (A)(3) and (A)(4) to

clarify the rule language, to specify minimum time and distance

requirements for backfilling and grading for mining methods other than

contour or area mining, and to require the contemporaneous commencement

of augering after the creation of the highwall to be augered.

B. Ohio is adding new OAC section 1501:13-9-13 paragraph (A)(7) to

clarify that areas that are backfilled and rough graded shall closely

resemble the final ground surface configuration approved in the mining

and reclamation plan but that these areas are not necessarily ready for

resoiling or eligible for Phase I bond release.

C. Ohio is supplementing the requirements of OAC section 1501:13-9-

13 with proposed Policy/Procedure Directive (PPD) Regulatory 94-3,

``Contemporaneous Reclamation.'' This PPD provides clarification and

guidance on the requirements in the OAC for contemporaneous

reclamation.

The Federal regulations at 30 CFR 816/817.100 provide that

reclamation efforts shall occur as contemporaneously as practicable

(except where a variance for concurrent surface and underground mining

is issued under 30 CFR 785.18). However, the Federal regulations have

no counterpart to the specific time and distance requirements for

contemporaneous reclamation proposed by Ohio in OAC section 1501:13-9-

13 and in the accompanying PPD. On July 31, 1992 (57 FR 33876), OSM

suspended in full its specific backfilling and grading time and

distance requirements at 30 CFR 816.101. In that notice of suspension,

OSM stated that mining operations would continue to be subject to the

State-specific contemporaneous reclamation regulations of State and

Federal programs which were then in effect. OSM agreed that regulatory

authorities could set these State-specific time and distance schedules

based on local conditions.

Therefore, there are no corresponding Federal regulations to the

new requirements which Ohio has proposed in OAC section 1501:13-9-13

and in the new PPD. The Director finds that Ohio's new contemporaneous

reclamation requirements are reasonable and are not inconsistent with

the Federal regulations at 30 CFR 816/817.100 and with the revisions

which Ohio is making elsewhere in other rules.

IV. Summary and Disposition of Comments

Public Comments

On May 26, 1994, and March 17, 1995, the Director solicited public

comments and provided an opportunity for a public hearing on the

proposed amendment. OSM received comments on the amendment from the

Ohio Mining and Reclamation Association (OMRA) by letter dated April 1,

1995 (Administrative Record No. OH-2106). OMRA made several objections

to the amendment:

(1) Ohio has not held a hearing on the proposed rule changes. The

Director believes that this comment is not immediately relevant to his

decision on this amendment. The public hearing mentioned in the comment

is part of Ohio's internal rule-filing process. If further rule changes

become necessary as a result of comments received during Ohio's rule

filing, Ohio will resubmit those proposed changes to OSM for review

under the program amendment process.

(2) The proposed rule changes do not employ normal common sense

relative to contemporaneous reclamation in the areas of weather,

equipment failure, and multiple seam mining. The time constraints are

too restrictive and could result in Ohio issuing violations to mine

operators. The Director does not agree with this comment. As discussed

above, the Director has reviewed Ohio's proposed reclamation schedules

and found them to be reasonable and not inconsistent with the Federal

regulations at 30 CFR 816/817.100.

(3) The amendment seems to have eliminated the difference between

rough and final grading. The Director does not agree with this comment.

The proposed changes in the amendment concerning backfilling and rough

grading are not inconsistent with the Federal regulations at 30 CFR

816/817.100.

(4) The amendment reflects continued overregulation and

unreasonable demands by the Federal government. The Director does not

agree with this comment. As discussed above, OSM has deliberately

placed the responsibility for developing contemporaneous reclamation

standards with the State regulatory authorities most familiar with the

mining practices in their areas.

No other 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 Director of the

U.S. Environmental Protection Agency (EPA) and the heads of four other

Federal agencies and one State agency with an actual or potential

interest in the Ohio program. Nonsubstantive comments were received

from the EPA, the Soil Conservation Service, and the Mine Safety and

Health Administration. No other agency comments were received.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Ohio on May 17, 1994, and revised on March 1,

1995.

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. [[Page 25615]]

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 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 on 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.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: May 5, 1995.

Ronald C. Recker,

Acting 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 (www) to read

as follows:

Sec. 935.15 Approval of regulatory program amendments.

* * * * *

(www) The following amendment (Program Amendment 68R) pertaining to

the Ohio regulatory program, as submitted to OSM on May 17, 1994, and

revised on March 1, 1995, is approved, effective May 12, 1995:

Contemporaneous Reclamation.

[FR Doc. 95-11782 Filed 5-11-95; 8:45 am]

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