Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-238-FOR, #72]

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 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). Ohio

proposed revisions to rules pertaining to underground mining. The

amendment is intended to revise the Ohio program to be consistent with

the corresponding Federal regulations.

EFFECTIVE DATE: September 4, 1996.

FOR FURTHER INFORMATION CONTACT: George Rieger, Field Branch Chief,

Appalachian Regional Coordinating Center, OSM, 3 Parkway Center,

Pittsburgh, PA 15220, Telephone: (412) 937-2153.

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

[[Page 46549]]

approval can be found in the August 10, 1982, Federal Register (42 FR

34668). Subsequent actions concerning conditions of approval and

program amendments can be found at 30 CFR 935.11, 935.12, 935.15, and

935.16.

II. Submission of the Proposed Amendment

By letter dated May 23, 1996, (Administrative Record No. OH-2166-

00) Ohio submitted a proposed amendment to its program pursuant to

SMCRA at its own initiative. Ohio proposed to revise the Ohio

Administrative Code (OAC) at sections 1501:13-4-12(G)(3)(d) and

4(f),(I)--Requirements for Special Categories of Mining; 1501:13-9-

08(A),(B)--Protection of Underground Mining; and 1501:13-13-01--

Concurrent Surface and Underground Mining.

OSM announced receipt of the proposed amendment in the June 24,

1996, Federal Register (61 FR 32382), 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 24, 1996.

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.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

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

the Corresponding Provisions of the Federal Regulations

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State regulation Subject Federal counterpart

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OAC 1501:13-4-12(G)(3)(d).............. Variances................. 30 CFR 785.18(b)(4)

OAC 1501:13-4-12(G)(4)(f).............. Permit Issuance........... 30 CFR 785.18(c)(6)

OAC 1501:13-4-12(G)(4)(i).............. Permit Issuance........... 30 CFR 785.18(c)(9)(iii)

OAC 1501:13-9-08(A)(1)................. Protection of Underground 30 CFR 816.79(b)

Mining.

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Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, the Director finds that Ohio's

proposed rules are no less effective than the Federal rules.

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

Regulations

Ohio proposed to delete OAC 1501:13-9-08(B) which required that

surface mining operations be designed to protect disturbed surface

areas, including spoil disposal sites, so as not to endanger any

present or future coal mining operation. There is no corresponding

Federal requirement to this provision. Therefore, the Director finds

that the proposed deletion will not render the State program less

effective than the Federal regulations.

Ohio proposed to delete OAC 1501:13-13-01 which specifies

performance standards for concurrent surface and underground mining

activities operating under a variance from contemporaneous reclamation

requirements. These provisions have no corresponding Federal

requirements. Ohio's provisions for variances in contemporaneous

reclamation appear in OAC 1501:13-4-12(G). The Director finds that the

proposed deletion will not render the State program less effective than

the Federal regulations.

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. Two public comments

were received. Because no one requested an opportunity to speak at a

public hearing, no hearing was held.

One commenter stated that by rescinding OAC 1501:13-13-01,

underground and surface coal reserves will be sterilized needlessly.

The commenter suggests that this provision provides a degree of

flexibility and that the 500 foot barrier was meant for underground and

surface mines in the same seam. The Director notes that the changes

proposed by Ohio simplify its rule structure by eliminating OAC

1501:13-13-01 which duplicates requirements found under 1501:13-4-12(G)

(contemporaneous reclamation) and 1501:13-9-08 (concurrence). The

revisions are not intended to create the loss of any flexibility nor

cause any impact that would sterilize or impact the ability to mine

certain reserves beyond those that currently exist in the Ohio program

and do not render the program less effective than the Federal

regulations.

The second commenter, the Ohio Historic Preservation Office (OHPO),

expressed several concerns. OHPO feels that proposed rule changes

pertaining to surface mining operations are not routinely sent to OHPO

for review. OHPO is particularly concerned that there is no basis for

selecting the 500 foot distance requirement specified in OAC 1501:13-9-

08. If feels this could create situations where there are adverse

effects to a property eligible for inclusion in the National Register

of Historic Places (NRHP). OHPO is also concerned that the proposed

changes could result in an acceleration of surface affectment actions

with increased risks for adverse effects to properties that may be

eligible for inclusion in the NRHP. The Director acknowledges that all

requirements of coordination and consultation between agencies

responsible for implementing the National Historic Preservation Act

(NHPA) must be met. However, the changes proposed by Ohio do not impact

compliance with NHPS and the OHPA comments are, therefore, outside the

scope of this amendment. The Director notes that the referenced 500

foot distance concerns the amount of barrier that may be necessary to

ensure the protection of underground coal miners and is consistent with

Federal requirements. The barrier is a hydrologic and structural

consideration and not considered as a direct limitation on surface

impacts as OHPA suggests. The Director concludes that none of the

changes proposed by Ohio create barriers to compliance with the NHPA.

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. None were

received.

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.).

[[Page 46550]]

None of the revisions Ohio proposed to make in its amendment

pertains to air or water quality standards. Nevertheless, OSM requested

EPA's concurrence with the proposed amendment. EPA did not respond to

OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Ohio on May 23, 1996.

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

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. 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 extend 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.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: August 19, 1996.

Tim L. Dieringer,

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 paragraph (bbbb) to read as

follows:

Sec. 935.15 Approval of regulatory program amendments.

* * * * *

(bbbb) The following rules, as submitted to OSM on May 23, 1996 are

approved effective September 4, 1996.

OAC 1501:13-4-12(G)(3)(d)--Variance

OAC 1501:13-4-12(G)(4)(f),(i)--Permit Issuance

OAC 1501:13-9-08(A)(1)--Protection of Underground Mining

OAC 1501:13-9-08(B) (Deletion)--Protection of Underground Mining

OAC 1501:13-13-01 (Deletion)--Concurrent Surface and Underground Mining

[FR Doc. 96-22447 Filed 9-3-96; 8:45 am]

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