Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-241; Amendment Number 74]

Ohio Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendments and removal of condition of

program approval.

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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). The

proposed amendment consists of revisions to section 1501:13-6-03 of the

Ohio Administrative Code (OAC) dealing with the Small Operator

Assistance Program (SOAP). The amendment is intended to revise the Ohio

program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: October 14, 1997.

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 October 3, 1996, (Administrative Record No. OH-

2170-00) Ohio submitted a proposed amendment to its program regarding

its SOAP pursuant to SMCRA. Ohio submitted the proposed amendment at

its own initiative. OSM announced receipt of the proposed amendment in

the October 18, 1996, Federal Register (61 FR 54373) 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 November 18, 1996. At the time of

announcement, the proposed amendment was identified as [OH-240;

Amendment Number 74]. Please note that the amendment is now identified

as [OH-241; Amendment Number 74]. However, certain cross-references

contained in the proposed amendments were inadvertently omitted or

incorrect in that notice. These were conveyed to Ohio in a document

dated April 14, 1997, Administrative Record No. OH-2170-07. Also, Ohio

submitted corrections to its proposed amendments in documents dated

April 1, 1997 and May 27, 1997 (Administrative Record Nos. OH-2170-06,

and OH-2170-08, respectively). On June 24, 1997, Ohio submitted its

revisions in response to the April 14, 1997 document (Administrative

Record No. OH-2170-09). Therefore, OSM reopened the public comment

period on the proposed amendments until August 4, 1997 as published in

the July 18, 1997 Federal Register (62 FR 38509).

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. The amendment proposes numerous changes regarding

both the title of the division and references to gender. Throughout the

amendment, due to a name change of the division of reclamation,

references to the ``division of reclamation'' are changed to the

``division of mines and reclamation'' and references to ``he'' or

``his'' are changed to ``he or she'' or ``his or hers'', respectively.

These changes are non-substantive and are not specifically enumerated

below. The changes proposed by Ohio in the revised amendment are

discussed briefly below:

OAC 1501:13-6-03 Small Operator Assistance Program

(a) Paragraph (A)(1) is amended by adding items for which qualified

operators may request assistance. These include engineering analysis

and designs necessary for the determination of probable hydrologic

consequences added to subparagraph (A)(1)(a), and amending subparagraph

(A)(1)(b) to include geologic drilling and statement of the results of

physical and chemical analyses of test borings or core samples.

(b) New subparagraphs (c)(d) (e) and (f) are added under paragraph

(A)(1) to identify the development of cross-section maps and plans; the

collection of archaeological information and other historical

information and the preparation of plans necessitated thereby; pre-

blast surveys; and the collection of site specific resource information

and production of protection and enhancement plans for fish and

wildlife habitats and other environmental values required by the chief,

respectively, as items for which a qualified operator may request

assistance.

There is no direct federal counterpart. However the proposed

changes at (A)(1) are consistent with the corresponding Federal

Regulations at 30 CFR 795.9(b)(1)-(b)(6), which describes the SOAP

services and data requirements.

(c) Paragraph (B) is amended by deleting subparagraphs (1) and (2)

dealing with probable hydrologic consequences and results of test

borings and core samplings which are added to Paragraph (A) of this

amendment, and adding a statement that the services eligible are now

under paragraph (A).

The proposed change in paragraph (B) is non-substantive and the

deletion of paragraphs (1) and (2) are not inconsistent with SMCRA or

its corresponding Federal regulations, and do not render the State

program any less effective than the federal regulations.

(d) Paragraph (C)(2) is amended by substituting the Department of

Natural

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Resources as an additional reference for production figure verification

instead of the division of mines and the division of reclamation. The

change in names is made due to the transfer of Division of Mines staff

and responsibilities to the Department of Natural Resources. The

Department of Natural Resources was assigned to the Division of

Reclamation which was retitled the Division of Mines and Reclamation.

Subparagraphs (C)(2)(a) and (C)(2)(b) are amended by changing the

applicant ownership limit from ``more than a five percent limit'' to

``ten percent or more'' limit.

The proposed changes at (C)(2), (C)(2)(a), & (C)(2)(b) are not less

effective than the federal regulations at 30 CFR 795.6(a)(2) (i) &

(ii), which require applicant ownership limits of more than ten

percent.

(e) Subparagraph (D)(9) is amended by deleting the specific map

scale references required for a topographic map and adding a reference

to OAC 1501:13-4-09. New subparagraph (D)(9)(e) is added to require

that such topographic maps also include any additional information

required by the chief.

The proposed changes in (D)(9) and (D)(9)(e) are no less effective

than 30 CFR 795.7(e) because the map scale references and details

required that were included in the deleted section are now included in

the cross-referenced citation.

(f) Paragraph (F)(2) is amended by deleting the heading ``specific

provisions'' and adding the following: ``The data, analyses, and

statements provided to the chief shall be sufficient to satisfy the

requirements for:''. Subparagraphs (F)(2) (a) and (b) are amended to

include engineering analyses and designs necessary for the probable

hydrologic consequences determination, and the drilling and statement

by a qualified laboratory of the result of test borings or core

samplings, respectively. Subparagraph (F)(2)(b) is further amended by

adding provisions for obtaining a waiver from the requirement.

Previously existing subparagraph (F)(2)(c) pertaining to this waiver is

deleted.

Existing subparagraph (F)(2)(d) is re-numbered as (F)(3), and

existing subparagraphs (F)(2) (e) and (f) are deleted.

New subparagraphs (F)(2) (c), (d), (e) and (f) are added to

identify the specific requirements that must be met for the development

of cross-section maps and plans; the collection of archeological

information and other historical information; pre-blast surveys; and

the collection of site-specific resource information and production of

protection and enhancement plans for fish and wildlife habitats and

other environmental values, respectively.

The proposed rules in (F) are found to be substantively identical

to the corresponding Federal regulations at 30 CFR 795.9 (b)(1)-(b)(6).

The deletion of subparagraphs (F)(2) (e) and (f) are found to be

acceptable because the requirements for the submission of a hydrology

map and a geologic cross-section required by these subparagraphs are

now included in the newly added sections and/or cross-references now

included in (F)(2)(c). The revision to paragraph (F)(2)(a) of OAC

1501:13-6-03 also satisfies a required program amendment found at 30

CFR 935.16(a)(3). In the January 13, 1997, Federal Register (62 FR

1668), the Director required that Ohio amend ORC 1513.07(B)(4)(a)(i) or

otherwise clarify that under the Small Operator's Assistance Program

(SOAP), probably hydrologic consequences determinations include the

engineering analyses and designs necessary for those determinations.

The revision to paragraph (F)(2)(a) specifically adds this required

language. Therefore, the Director is removing the required amendment at

30 CFR 935.16(a)(3).

IV. Summary and Disposition of Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. One comment was

received from the Ohio Historic Preservation Office in a letter dated

February 24, 1997. The commenter stated that several times the new

language refers to the collection of archaeological information, but

does not refer to the National Historic Preservation Act review process

which includes more than just archaeological sites. The Ohio Historical

Preservation Office suggests that the rule language parallel the

Section 106 review process at 36 CFR part 800. One of the changes made

by Ohio to the proposed rules in one of its subsequent submissions is

to add the words ``and historical'' after the word archaeological in

sections OAC 1501:13-6-03(A)(1)(D) and OAC 1501:13-6-03(F)(2)(d).

Additionally, the Director notes that OAC 1501:13-4-01(B) requires

coordination of review and issuance of permits with other federal or

state laws which includes the National Historic Preservation Act of

1966 and that OAC 1501:13-5-01(A)(3) requires that a written

notification of a permit application, renewal or revision be sent to

all federal, state and local governmental agencies that have an

interest in the area of the proposed operations. There are no SOAP

operations that are not included in the permit application process. The

program amendment does not propose to change any coordination that

currently exists between OHPO and DMR concerning review of cultural and

historical resources. No one requested an opportunity to speak at a

public hearing, therefore 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. The U.S. Army

Corps of Engineers responded that the changes were satisfactory. The

U.S. Department of Labor's Mine Safety and Health Administration

acknowledged receipt of the proposed amendment and responded that no

further action was anticipated. No other 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.).

Comments were requested from EPA, however they did not reply.

V. Director's Decision

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

amendment as submitted by Ohio on October 3, 1996 and modified in

documents dated April 1, 1997, May 27, 1997, and June 24, 1997.

(Administrative Record Nos. OH-2170-06, OH-2170-08, and OH-2170-09,

respectively). The Director is also removing the condition of program

approval at 30 CFR 935.16(a)(3) because this amendment now includes

those requirements at paragraph (F)(2)(a) of OAC 1501:13-6-03. The

requirement amendment was initially included in OH-204 published as a

final rule in the January 13, 1997, Federal Register (62 FR 1668). The

condition required an amendment that probable hydrologic consequences

determinations include engineering analyses and designs necessary for

those determinations.

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

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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 12988

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12988 (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.

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 Part 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 9, 1997.

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 in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 935.15 Approval of Ohio regulatory program amendments.

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Original amendment submission date Date of final publication Citation/description

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October 3, 1996 October 14, 1997........... OAC 1501:13-6-03, (A)(1) (a) through (f),

(B), (1), (2), (F)(2), (a) through (f),

(C)(2), (a), (b), (D)(9), (10), (11).

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Sec. 935.16 Required regulatory program amendments.

Section 935.16 is amended by deleting paragraph (a)(3).

[FR Doc. 97-27065 Filed 10-10-97; 8:45 am]

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