Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 935

[OH-237; Amendment Number 71]

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 inspections. The amendment is

intended to make the Ohio program consistent with the corresponding

Federal regulations.

EFFECTIVE DATE: October 29, 1996.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Field Branch Chief, Appalachian Regional Coordinating

Center, Office of Surface Mining Reclamation and Enforcement, 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 approval can be found in the August 10, 1982, Federal

Register (47 FR 34688). Subsequent actions concerning conditions of

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

and 935.16.

II. Submission of the Proposed Amendment

By letter dated May 17, 1996, (Administrative Record No. OH-2165-

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

SMCRA at its own initiative. Ohio proposed to revise Ohio

Administrative Code (OAC) section 1501:13-14-01 by deleting that

portion of the rule pertaining to bond reduction; adding language to

treat portions of operations as inactive where reclamation phase II is

performed; and to delete a reference to permits other than permanent

program ``D'' permits. In a subsequent letter dated September 3, 1996,

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(Administrative Record No. OH-2165-06) Ohio withdrew its proposal to

add language at OAC 1501:13-14-01(A)(2), that would allow portions of

operations to be considered as inactive for inspection purposes.

OSM announced receipt of the proposed amendment in the June 11,

1996, Federal Register (61 FR 29504), 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 11, 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.

OAC 1501:13-14-01 Inspections

(A)(2)(b) Ohio is proposing to amend its regulations pertaining to

inspections to change the definition of ``inactive coal mining and

reclamation operation''. Currently, one of the ways for an Ohio coal

mining operation to be deemed ``inactive'' is for the entire operation

to have achieved Phase II reclamation standards and that release of

phase II bond liability has occurred. Ohio is proposing to delete the

requirement that actual release from phase II bond liability must occur

before a site is considered inactive so that the operation must only

meet phase II reclamation standards to be considered inactive. The

amendment has nearly identical wording to 30 CFR 842.11(c)(2)(iii)(B)

(the rule applying to OSM when it is the regulatory authority).

Although 30 CFR 842.11(c)(2)(iii)(B) is nearly identical to the Ohio

amendment, 30 CFR 840.11(f)(2) (the rule applying to states when they

are the regulatory authority), contains language nearly identical to

Ohio's existing regulation. However, as discussed below, it is clear

from the 1982 federal rule preamble, the OSM intended the rules for OSM

and the states to be the same and only to require that Phase II

reclamation be accomplished.

This 1982 federal final rule, was originally proposed by OSM on

December 1, 1981 (46 FR 58464). OSM suggested a change to 30 CFR

842.11(c)(2), but did not propose a change to 30 CFR 840.11. Then, in

the 1982 final rule regarding 30 CFR 840.11, four commenters ``wrote

that the same policy considerations of efficiency in Federal programs

[should] apply to State programs.'' 47 FR 35620, 35621 (August 16,

1982). OSM agreed with the commenters and stated that:

The final rule allows States to distinguish between active and

inactive mines in the same manner as was proposed and is being

adopted for OSM when acting as the regulatory authority. This is

accomplished through * * * new paragraph (f), discussed above. A

discussion of the comments addressing the question of active and

inactive mines is found below, under the discussion of

Sec. 842.11(c).

Id. OSM, in its discussion of 30 CFR 842.11 responded to commenters

that wanted the requirement for Phase II bond release deleted because

it could cause ``OSM to continue monthly inspections long after Phase

II reclamation is completed.'' 47 FR at 35627 (August 16, 1982).

OSM agrees. In view of the broad discretion granted to OSM in

releasing a portion of the performance bond following completion of

Reclamation Phases I and II, the determination of a mine's status as

active or inactive should be based solely on the completion of

Reclamation Phase II. Id. (Emphasis added).

The Director finds Ohio's proposed deletion consistent with the

intent of 30 CFR 840.11(f)(2) and therefore, no less effective.

(A)(2)(c) Ohio is proposing to delete this section pertaining to

other than permanent program ``D'' permits. Since Ohio no longer has

any active permits except permanent program permits, and permits

pertaining to exploration are not subject to the specific inspection

frequencies, the Director finds that Ohio's proposed rule is consistent

with 30 CFR 701.1, which requires a permanent regulatory program to

include subchapter L, which includes Part 840.

IV. Summary and Disposition of Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. Comments were received

from one Environmental Group in a letter dated July 11. OSM carefully

considered the comments. Essentially, the commenter opposed the

amendment on the basis that it would legitimize an already deficient

inspection frequency in Ohio, and cause additional safety and

environmental hazards for the public. OSM recognizes the comment,

however the commenter's concern about inspection frequency is really

directed toward Ohio's implementation of its approved program, which is

not the subject of this amendment. The Director notes that recently,

OSM received a request, pursuant to 30 CFR 733.12(a)(2)(``733

request''), to evaluate some of the same issues that are raised by the

commenter. In response to the 733 request, OSM is in the process of

reviewing the matter.

The subject of this amendment primarily deals with whether Ohio's

revised definition of ``inactive coal mining and reclamation

operation'' is no less effective than the applicable federal

definition. Ohio's revised definition of ``inactive coal mining

operations'' requires that Phase II reclamation be completed. For a

more complete discussion of this amendment, see the Director's

Findings. The commenter also was concerned that the amendment ``would

weaken Ohio's ability to adequately monitor surface mining.'' The

Director disagrees because, even though more mines may be defined as

inactive, ``OSM has found that, in general, inactive mines present

fewer problems than active mines, and consequently do not require the

same frequency of inspections as active mines.'' 47 FR 35620, 35627

(August 16, 1982). Thus, the amendment would allow the inspection staff

to devote more resources to active sites that pose a higher risk for

impacts to the environment.

Because no one requested an opportunity to speak at a public

hearing, no hearing was held.

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. No comments 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.).

None of the revisions that Ohio proposed to make in this amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

V. Director's Decision

Based on the above finding(s), the Director approves the proposed

amendment as submitted by Ohio on May 17, 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

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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 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: September 27, 1996.

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 of part 935 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 935.15 is amended by adding paragraph (cccc) to read as

follows:

Sec. 935.15 Approval of regulatory program amendments.

* * * * *

(cccc) The following rules, as submitted to OSM on May 17, 1996,

are approved effective October 29, 1996:

OAC 1501:13-14-01(A)(2)(b) (Deleted Portion) Definition of Inactive

coal mining and reclamation operation

OAC 1501:13-14-01(A)(2)(c) (Deletion) Same

[FR Doc. 96-27600 Filed 10-28-96; 8:45 am]

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