Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-229-FOR #66]

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 and directives pertaining to premining

water quality samples for previously mined permit sites. The amendment

is intended to make the Ohio program as effective as the corresponding

Federal regulations.

EFFECTIVE DATE: February 28, 1996.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Program Manager, OSM, Appalachian Regional Coordinating

Center, 10 Parkway Center, Pittsburgh, PA 15220, Telephone: (412) 937-

2849.

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, 935.12,

935.15, and 935.16.

II. Submission of the Proposed Amendment

By letter dated July 3, 1995 (Administrative Record No. OH-2143),

Ohio submitted a proposed amendment to its program pursuant to SMCRA at

its own initiative. Ohio proposed to revise one rule at Ohio

Administrative Code (OAC) section 1501:13-4-15 concerning the number

and frequency of premining water samples required for previously mined

permit areas. Ohio also proposed to revise two of its Policy/Procedures

Directives (PPD)--PPD Permitting 92-3 and PPD Regulatory 93-4, to

reflect the rule change.

OSM announced receipt of the proposed amendment in the July 25,

1995, Federal Register (60 FR 37972), 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 August 24, 1995.

During its review of the amendment, OSM identified concerns

relating to pollution abatement areas. OSM notified Ohio of these

concerns by letter dated September 8, 1995 (Administrative Record No.

OH-2156).

By letter dated September 27, 1995 (Administrative Record No. OH-

2157), Ohio responded to OSM's concerns by submitting revisions to its

proposed program amendment. Ohio proposed two additional revisions to

PPD Regulatory 93-4. The first revision deletes the earlier proposed

provision which would have allowed the inclusion of ``contiguous

undisturbed areas'' within pollution abatement areas. The second

revision requires that the operator make an additional written

notification pertaining to the demonstration of untreated pre-existing

discharges.

Based on the revisions to the proposed program amendment submitted

by Ohio, OSM reopened the public comment period in the October 25,

1995, Federal Register (60 FR 54619) and provided an opportunity for a

public hearing on the adequacy of the amendment. The public comment

period closed on November 9, 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.

Revisions not specifically discussed below concern nonsubstantive

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

reflect organizational changes resulting from this amendment.

15 OAC 1501:13-4-15(D)(2)--Authorization to Conduct Coal Mining on

Previously Mined Areas. Ohio is proposing to amend its regulations

pertaining to water quality to require that a permit applicant submit

data from a minimum of 12 samples taken at regular intervals at each

sampling location and collected over a period of at least 12 months or

longer, as determined by the regulatory authority. The Federal

regulations at 30 CFR 780.21(b) establish baseline hydrologic

[[Page 7412]]

information requirements. The regulatory authority may require

additional information as warranted. The Director finds that the

proposed revision at 15 OAC 1501.13-4-15(d)(2) is not inconsistent with

the Federal regulations at 30 CFR 780.21(b).

Policy/Procedure Directive (PPD) 93-4. Ohio is proposing to revise

the bond release provisions of PPD 93-4 to clarify that as part of the

demonstration that the untreated pre-existing discharges from the

pollution abatement area have not exceeded the modified effluent

limitations for the required 12 months, the operator must notify the

Division's district office in writing at the beginning of the 12-month

period prior to the Phase II bond release. The name of Ohio's Remining

Program's contact person is changed to Bob Baker. The Federal

regulations at 30 CFR 800.40(c) authorize the regulatory authority to

release all or part of a bond if the regulatory authority is satisfied

that certain conditions have been met. The Director finds that the

proposed revisions to PPD 93-4 are no less effective than the Federal

regulations at 30 CFR 800.40(c).

Policy/Procedure Directive (PPD) 92-3. Ohio is proposing to revise

the sampling procedures for pre-existing discharge sites. The permit

applicant is required to submit a minimum of 12 samples for each pre-

existing discharge site to be collected over a period of at least 12

months and the samples must be collected over a period of 12 months or

longer. Sites are to be sampled no more frequently than once a month.

There is no statutory provision for a variance of the sampling

requirements.

The Federal regulations at 30 CFR 780.21(b) establish baseline

hydrologic information requirements. The regulatory authority may

require additional information as warranted. The Director finds that

the proposed revisions to PPD 92-3 are not inconsistent with the

Federal regulations at 30 CFR 780.21(b).

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments on July 25, 1995, and

October 25, 1995, and provided an opportunity for public hearings on

the proposed amendment. No public comments were received, and because

no one requested an opportunity to speak at a public hearing, no

hearings were 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. The U.S.

Department of Labor, Mine Safety and Health Administration, concurred

without comment.

Environmental Protection Agency (EPA)

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (Administrative Record No. OH-2144). It 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 July 3, 1995, and as revised on

September 27, 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

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: February 16, 1996.

Allen D. Klein,

Assistant 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 (aaaa) to read as

follows:

Sec. 935.15 Approval of regulatory program amendments.

* * * * *

(aaaa) The amendments to the following rules and directives, as

submitted to OSM on July 3, 1995, and

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revised on September 27, 1995, are approved effective February 28,

1996:

15 OAC 1501:13-4-15(D)(2)--Authorization to Conduct Coal Mining on

Previously Mined Areas

Policy/Procedure Directive 93-4--Remining Enforcement Procedure

Policy/Procedure Directive 92-3--Remining Process

[FR Doc. 96-4429 Filed 2-27-96; 8:45 am]

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