Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-235; Amendment Number 70R]

Ohio Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

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

[[Page 37939]]

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

program as effective as the corresponding Federal regulations

concerning the frequency of inspections at abandoned coal mining

operations.

EFFECTIVE DATE: July 25, 1995.

FOR FURTHER INFORMATION CONTACT:

Ms. Beverly C. Brock, 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

The Ohio Department of Natural Resources, Division of Reclamation

(Ohio) submitted proposed Program Amendment Number 70 by letter dated

March 28, 1995 (Administrative Record No. OH-2104). In this amendment,

Ohio proposed to revise one rule at Ohio Administrative Code (OAC)

section 1501:13-14-01 to make the Ohio program as effective as the

corresponding Federal regulations concerning the frequency of

inspections at abandoned coal mining operations.

OSM announced receipt of PA 70 in the April 11, 1995, Federal

Register (60 FR 18380), 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

May 11, 1995.

On May 11, 1995, OSM notified Ohio of its one comment about PA 70

(Administrative Record No. OH-2128). In response to that OSM comment,

Ohio submitted Revised Program Amendment Number 70 (PA 70R) by letter

dated May 31, 1995 (Administrative Record No. OH-2127). In PA 70R, Ohio

proposed one further revision to OAC section 1501:13-14-01 paragraph

(A)(3)(c)(ii).

OSM announced receipt of PA 70R in the June 16, 1995, Federal

Register (60 FR 31661), 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

July 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 are discussed below. Rule revisions which are not

discussed below concern editorial changes intended to improve the

clarity and readability of the rules.

A. Revisions to Ohio's Regulations That Are Substantively Identical to

the Corresponding Provisions of the Federal Regulations

------------------------------------------------------------------------

Federal

State regulations (OAC Subject regulations (30

section 1501:13-14-01) CFR Part 840)

------------------------------------------------------------------------

(A)(3)..................... Definition of ``Abandoned 840.11(g)

Coal Mining and

Reclamation Operation''.

(E)........................ Alternative inspection 840.11(h)

frequency at abandoned

sites.

------------------------------------------------------------------------

Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, the Director finds that these

proposed rules are no less effective than the Federal rules.

B. Revisions to the Ohio's Regulations With No Corresponding Federal

Provisions

1. OAC Section 1501:13-14-01 Paragraph (A)(4)

Ohio is revising its definition of ``active coal mining and

reclamation operation'' to mean an operation other than an inactive or

abandoned coal mining reclamation operation. Although there is no

corresponding Federal definition of this term, the Director finds that

Ohio's definition is not inconsistent with the Federal regulations at

30 CFR 840.11 or with the revisions which Ohio is making elsewhere in

this rule.

IV. Summary and Disposition of Comments

Public Comments

On April 11 and June 16, 1995, the Director solicited public

comments and provided an opportunity for a public hearing on the

proposed amendment. 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 Director of the

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

other Federal agencies and one State agency with an actual or potential

interest in the Ohio program.

The EPA commented that abandoned sites can result in acid or other

polluted mine drainage which may vary in severity over the seasons. EPA

stated that it is important that Ohio consider this seasonal variation

and other variable factors when determining the necessary inspection

frequency. One inspection per year may be reasonable for non-polluting

abandoned sites. However, Ohio should inspect polluting abandoned sites

more frequently than one per year to assess changes in severity and the

priority of the site for environmental cleanup. Polluting abandoned

sites with forfeited reclamation bond should be reclaimed as soon as

possible. If forfeited bonds are not sufficient to cover reclamation

costs, Ohio should pursue the responsible party for available

resources.

The Director concurs with EPA's comments and OSM and Ohio staff

have discussed these comments. Ohio will consider actual existing

pollutants, seasonal variation, and potential generation of pollutants

in evaluating and establishing any modified inspection frequency at

abandoned sites. Ohio will give priority to reclaiming polluting

forfeited sites and will seek recovery of any additional funds

necessary within its statutory authority.

Nonsubstantive comments were also received from 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 March 28, 1995, and revised on May

31, 1995.

[[Page 37940]]

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.

IV. Procedural Determinations

Executive Order 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 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: July 17, 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 (yyy) to read

as follows:

Sec. 935.15 Approval of regulatory program amendments.

* * * * *

(yyy) The following amendment (Program Amendment 70R) pertaining to

the Ohio regulatory program, as submitted to OSM on March 28, 1995, and

revised on May 31, 1995, is approved, effective July 25, 1995:

Inspection frequency at abandoned sites, at OAC rule 1501:13-14-01.

[FR Doc. 95-18221 Filed 7-24-95; 8:45 am]

BILLING CODE 4310-05-M