Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-204; Amendment Number 54]

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 pertaining to twenty-two sections of the Ohio

Revised Code (ORC) to clarify those sections of State law, to conform

those sections to current State practices, and to make those sections

equivalent to corresponding Federal laws. The revisions concern

confidential information on incidental coal

[[Page 1669]]

extraction, the Reclamation Supplemental Forfeiture Fund, use of the

Reclamation Supplemental Forfeiture Fund and for non-coal reclamation,

the Coal Mining Performance Bond Fund, limitations on the awards of

costs and expenses, reclamation contracts with surface mine operators,

reclamation of interim forfeiture and insolvent surety sites, use of

police powers, AML reclamation liens, the Acid Mine Drainage Abatement

and Treatment Fund, lands eligible for remining, average wage rates,

deletion of obsolete language on interim continuance of underground

coal mining operations, activities eligible for Small Operator

Assistance, required staff training, and informal review of issues as a

form of alternative dispute resolution.

EFFECTIVE DATE: January 13, 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 February 7, 1992 (Administrative Record No. OH-

1645), as modified by letter dated February 27, 1992 (Administrative

Record No. OH-1657), Ohio submitted proposed Program Amendment Number

54 (PA54). In PA 54, Ohio proposed to revise 13 sections of the ORC

concerning a number of regulatory and AML issues. OSM announced receipt

of PA 54 in the April 13, 1992, Federal Register (57 FR 12779), and in

the same notice, opened the public comment period and provided

opportunity for a public hearing on the adequacy of the proposed

amendment. The public comment period ended on May 13, 1992.

By letter dated June 15, 1992 (Administrative Record No. OH-1714),

OSM provided Ohio with its questions and comments about the February 7,

1992, submission of PA 54. On July 20, 1992, OSM and Ohio staff met to

discuss and resolve OSM's questions and comments (Administrative Record

No. OH-1746). On July 28, 1992, OSM and Ohio staff further resolved

some of those issues in a telephone conversation (Administrative Record

No. OH-1754).

In response to OSM's June 15, 1992, letter, Ohio submitted Revised

Program Amendment Number 54 (PA 54R) by letter dated September 2, 1992

(Administrative Record No. OH-1769). PA 54R contained further revisions

to seven sections of the ORC. OSM announced receipt of PA 54R in the

October 28, 1992, Federal Register (57 FR 48765), and in the same

notice, opened the public comment period and provided opportunity for a

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

comment period ended on November 27, 1992.

On December 16, 1992 (Administrative Record No. OH-1800), OSM and

Ohio staff conducted a telephone discussion of the September 2, 1992,

resubmission of PA 54R. On April 30, 1993, OSM and Ohio staff met

informally to discuss the status of the amendment with respect to the

State's legislative process.

In the June 11, 1993, Federal Register (58 FR 32611), the Director

of OSM announced his decision to defer Ohio PA 54R with the exception

of the Director's approval of one proposed change at ORC section

1513.02(F)(3) which the Ohio General Assembly was likely to pass in its

current form. The Director made this decision because the Ohio

Legislative Service Commission had not yet drafted the final statutory

language on which PA 54R would ultimately be based and because that

language would not be available for review by OSM within the

foreseeable future.

By letter dated March 31, 1995 (Administrative Record No. OH-2107),

Ohio submitted the final version of PA 54 (PA542R2). This final version

contains the statutory changes approved by the Ohio General Assembly in

Senate Bill 180 and in House Bill 414. The two bills were signed by the

Ohio Governor on December 23, 1992, and December 27, 1994,

respectively. The revised statutes went into effect on March 24, 1993,

and March 27, 1995, respectively.

Ohio's March 31, 1995, final submission of PA 54R reiterated many

of the statute changes previously proposed in PA 54 and PA 54R, and

withdrew its proposal to amend ORC Sections 1513.10 and 1513.07

pertaining to Refunds of Permit Fees as well as Interfund Transfers.

Portions of other sections were likewise withdrawn as discussed in

their respective sections below. The March 31, 1995 submission also

proposed new changes to ten sections of the ORC. OSM discussed all

proposed changes in the April 13, 1992, October 28, 1992, and April 17,

1995 Federal Register documents concerning the submissions of PA 54, PA

54R and PA 54R2, respectively. An issue letter was sent to Ohio on

August 2, 1995 and a conference call was held on August 29, 1995.

Further discussions were held during 1996. Statute changes which solely

concern Ohio's non-coal regulatory program are outside the jurisdiction

of OSM and are not discussed below. Also, changes to paragraph

notations and nonsubstantive wording changes are not discussed.

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 amendments.

1. Confidential Information Regarding Exemption Requests for Incidental

Coal Extraction

ORC 1513.07 paragraph (D)(2): Ohio is revising this paragraph to

specify that, for exemption requests for incidental coal extraction,

confidential information includes and is limited to information

concerning trade secrets or privileged commercial or financial

information relating to the competitive rights of the persons intending

to conduct the extraction of minerals. The corresponding Federal rule

at 30 CFR 702.13 requires that the person request, in writing, that the

information be kept confidential. While Ohio's proposed statute change

does not include this requirement, Ohio's Administrative Code Section

1501:13-4-16(J)(2) corresponds with the Federal rule at 30 CFR

702.13(b). Therefore, the proposed change to the statute in conjunction

with Ohio's existing Administrative Code Section is no less effective

than the corresponding Federal Regulations at 30 CFR 702.13(b).

2. Reclamation Supplemental Forfeiture Fund

Ohio is revising ORC 1513.08 paragraph (A) and proposing a new

paragraph ORC 1513.18(D) to move the current language creating the

Reclamation Supplemental Forfeiture

[[Page 1670]]

Fund from that portion of the Ohio law dealing with performance bonds

to that portion of the law dealing with reclamation by the Division.

Ohio also proposed adding a new provision which would allow the

Division to use funds from the Reclamation Supplemental Forfeiture Fund

to reclaim areas which were affected by non-coal mining under surface

mining permits issued under ORC Chapter 1514, but which the operator

did not adequately reclaim. In its March 31, 1995, final version of PA

54R, Ohio is withdrawing the portion of the proposed language referring

to ORC Chapter 1514 from new paragraph (D). Ohio is also removing the

fund name from the heading of the section.

ORC 1514.06 paragraph (G): Ohio is proposing to revise this

paragraph in lieu of the previously proposed revision discussed above

which Ohio is withdrawing from ORC section 1513.18 paragraph (D). The

revision to ORC section 1514.06 paragraph (G) would provide that Ohio

may expend money from the Reclamation Supplemental Forfeiture Fund or

from the Surface Mining Administration Fund to complete reclamation on

land affected by non-coal surface mining operations on which an

operator has defaulted.

Ohio is also revising ORC Section 1513.18(E) to be consistent with

the move of the aforementioned language to ORC Section 1513.18(D).

ORC section 1513.18 paragraph (D): Ohio is adding a statement in

this paragraph concerning the State's priority for management of the

Reclamation Supplemental Forfeiture Fund, including the selection of

projects and the transfer or moneys. That priority shall be to ensure

that sufficient moneys are available for reclamation of areas that an

operator has affected under a coal mining and reclamation permit issued

after September 1, 1981, and which the operator has failed to reclaim.

This statement was added in response to the director's concerns that

Reclamation Supplemental Forfeiture Fund expenditures on non-coal

mining sites could compromise the Fund's solvency as an alternative

bonding system to be used for the reclamation of surface coal mining

sites. The Director is now satisfied that Ohio will continue to use

Fund moneys to reclaim all existing coal mining sites for which bonds

have been forfeited, prior to using any such moneys to reclaim non-coal

mining sites.

The proposed changes are found to be consistent with the

corresponding Federal Regulations at 30 CFR 800.11(e), pertaining to

alternative bonding systems.

3. Coal Mining Performance Bond Fund

ORC 1513.081: Ohio is repealing this existing section which created

the Coal Mining Performance Bond Fund. Language in this section also

authorized the issuance of reclamation performance bonds by the Chief

using money from the fund, determined premiums and fees for

participation in the fund, and provided for the release and forfeiture

of reclamation performance bonds supported by the fund.

Ohio proposed to add ORC section 1513.081 to the Ohio program as

part of the November 16, 1987 submission of proposed Ohio Program

Amendment Number 32 (Ohio Administrative Record No. OH-0994). This part

of Ohio Program Amendment Number 32 was not approved by OSM.

ORC 1513.08 paragraph (B): Ohio is revising this paragraph to

delete a reference to performance bonds issued under ORC Section

1513.081 which is to be repealed.

Because the proposed changes were never approved by the Director

and therefore never became part of Ohio's approved program, their

deletion from the ORC does not render the Ohio program inconsistent

with the requirements of SMCRA or the Federal Regulations.

4. Alternative Dispute Resolution

ORC 1513.13 paragraph (A)(3): Ohio is adding this new paragraph to

provide an alternative mechanism for resolving disputes over notices,

orders, or other decisions issued by the Chief. Any person who, under

ORC 1513.13, may appeal such a notice, order, or decision to the Ohio

Reclamation Board of Review (RBR) may elect to request an informal

review by the Chief of that notice, order, or decision to the RBR. The

time spent on such an informal review would not count against the time

available to the person to appeal the notice, order, or decision to the

RBR. Further, such a review would not stay the order, notice, or

decision. Finally, such a review would itself be appealable to the RBR.

Since Ohio already has an informal review process in its

regulations for Civil Penalty Assessments, citizen complaints, and bond

releases, the proposed change is not inconsistent with the requirements

of SMCRA and the Federal regulations insofar as it does not interfere

with or duplicate the informal review process already contained in the

Ohio program. Therefore, the Director is approving ORC 1513.13(A)(3) to

the extent that it does not apply to create additional opportunities

for informal review of Civil Penalty assessments, citizen complaints,

and bond releases, beyond those already contained in the Ohio program.

5. Limitations on Awards of Costs and Expenses

ORC 1513.13 paragraph (E)(1): Ohio is revising this paragraph to

provide that, at the request of a prevailing party in the appeal of an

enforcement order or permit decision, the Ohio RBR and/or the Chief may

award necessary and reasonably incurred costs and expenses, including

attorney fees, for that party's participation in the enforcement

proceedings before the Ohio RBR. Ohio later revised this section so

that it also applies to awards of costs and expenses incurred in

connection with proceedings before the RBR, before the court under ORC

section 1513.15 (pertaining to citizen suits), or before the Chief

under ORC section 1513.39 (pertaining to employee discrimination). Ohio

is also adding that fees awarded under this section may not exceed the

prevailing market rates at the time the services were rendered. Costs

and expenses may also be awarded for the preparation, defense and

appeal of a petition for costs and expenses, provided those costs and

expenses are proportionate to those otherwise allowed under ORC

1513.13(E).

ORC 1513.13 paragraph (E)(1)(a): Ohio is revising this paragraph to

specify that an award may be made to a party other than the permittee

or the Ohio Division of Reclamation (DOR) when the Chief determines

that a party both prevailed in whole or in part and made a substantial

contribution to the determination of issues. This contribution must be

separate and distinct from the contribution made by any other party.

ORC 1513.13 paragraph (E)(1)(b): Ohio is revising this paragraph to

clarify that permittees may file petitions for award of costs and

expenses with the chief against parties who initiated or participated

in an appeal under this section in bad faith for the purpose of

harassing or embarrassing the permittee. The Chief may assess those

costs and expenses against the party who initiated the appeal.

ORC 1513.13 paragraph (E)(1)(c): Ohio is revising this paragraph to

clarify that the DOR may file a request with the RBR for an award of

costs and expenses incurred by the DOR in connection with an appeal

initiated under this section. The RBR may assess those costs and

expenses against those parties who initiated the appeal in bad faith

and for the purpose of harassing or embarrassing the DOR.

[[Page 1671]]

ORC 1513.13 paragraph (E)(2): Ohio is revising this paragraph to

authorize the court to award necessary and reasonably incurred costs

and expenses for parties participating in the judicial review of any

order issued order this section or as a result of any administrative

proceeding under this chapter.

ORC 1513.15 paragraph (F): Ohio is revising this paragraph to

authorize the Chief to award necessary and reasonably incurred costs of

litigation, including attorney and expert witness fees, in connection

with civil actions against the Division. Ohio is also revising this

paragraph to delete previously proposed revision and is reinstating the

court's authority to award, to any party, costs and fees that the court

determines to have been necessary and reasonably incurred, in any

proceeding under ORC 1513.15 (B) (citizen suits) in accordance with ORC

section 1513.13.

ORC 1513.39 paragraph (C): Ohio is revising this paragraph to

incorporate by reference the proposed limit on necessary and reasonably

incurred costs and expenses specified in revised ORC section 1513.13

paragraph (E)(1) and (E)(2) as also applying to cases of alleged

discrimination against employees.

Except as noted below, the proposed changes are found to be

consistent with the requirements of Section 525(e) of SMCRA, 30 CFR

840.15, and 43 CFR 4.1290 and 4.1294.

a. Ohio is required to amend ORC 1513.13 (E)(1)(a) to make it clear

that such awards may be made in connection with any administrative

review proceedings concerning an enforcement action, permit issuance

decision or employee discrimination complaint, not just those

concerning enforcement actions.

b. Ohio is required to amend ORC 1513.13(E)(1)(b) and (c) to make

it clear that such costs may also be assessed against persons who

participate in bad faith appeals, not just those persons who initiate

such bad faith appeals.

6. Reclamation Contracts With Surface Mine Operators

ORC 1513.18 paragraph (C): Under the current version of this

paragraph, the Chief is authorized to enter into contracts with mine

operators mining under a current, valid permit to complete reclamation

on defaulted areas. Ohio is revising this paragraph to extend the

Chief's authorization to include contracts with surface mine operators

mining under permits issued under ORC Chapter 1514, pertaining to

minerals other than coal.

While there is no Federal counterpart, the Director finds the

proposed change is not inconsistent with SMCRA or the Federal

regulations.

7. Reclamation of Forfeited Areas Affected Under Mining Permits Issued

After April 10, 1972 But Before September 1, 1981

ORC 1513.18 paragraph (I): Ohio is adding this new paragraph to

authorize the Chief to use any unspent funds in the defaulted areas

fund to complete reclamation of other interim forfeited areas affected

under coal mining and reclamation permits issued after April 10, 1972

but before September 1, 1981.

While there are no Federal counterparts, the Director finds that

this propose revision is not inconsistent with SMCRA or the Federal

regulations, and is consistent with SMCRA's general intent that all

lands disturbed by surface coal mining operations be reclaimed.

8. Chief's Use of Police Powers on State-Funded AML Sites

ORC 1513.27 third paragraph: Ohio is adding this new paragraph to

authorize the Chief to enter onto property where the owners are not

known, are not readily available, or are not willing to give permission

in order for the Division to use State funds to abate adverse effects

of past coal mining practices on abandoned mined land (AML). Such entry

onto properties shall be construed as an exercise of police power for

the protection of the public health and safety and shall not be

construed as an act of condemnation nor trespass.

The proposed change is found to be substantively identical to the

requirements of section 407 of SMCRA, except that ORC 1513.27 does not

grant a right of entry to ``any other property'' in order to have

access to the property affected by past coal mining practices. However,

because Ohio's program does provide for right of entry upon ``any other

property'' for Federally-funded AML projects at ORC 1513.37 (F)(1), the

proposed change at ORC 1513.27 does not render the state's program less

stringent than section 407 of SMCRA. Therefore, the revision at ORC

1513.27 is approved.

9. AML Liens on Property of Community Improvement Corporations or

Nonprofit Organizations

ORC 1513.33 third paragraph: Ohio is revising this paragraph to

provide that AML liens filed by the Division against property owned by

community improvement corporations or nonprofit organizations shall

have priority as a lien second only to the lien of real property taxes

imposed upon the land.

This proposed change is substantively identical to language

contained in SMCRA at section 408(c).

ORC 1513.33 fourth paragraph: Ohio is revising this paragraph to

clarify the procedure to be used by county recorders in recording and

indexing AML liens.

ORC 1513.33 fifth paragraph: Ohio is revising this paragraph to

provide that AML liens shall continue in force so long as any portion

of the lien remains unpaid.

ORC 1513.33 sixth paragraph: Ohio is revising this paragraph to

delete the provision that AML liens shall be foreclosed in the same

manner as State tax liens foreclosed under ORC Chapter 5721.

While there are no direct Federal counterparts to these proposed

changes, they are found not to be inconsistent with the requirements of

SMCRA at section 408.

10. Expansion of Sites Eligible for Federally Funded AML Projects

ORC 1513.37 paragraph (C)(1): Ohio is revising this paragraph to

expand the eligibility requirements for the sites of Federally funded

AML reclamation projects. Ohio is adding new paragraph (C)(1)(b) to

make eligible mining operations which occurred during the period

beginning August 4, 1977 and ending on or before August 16, 1982 and

for which sufficient reclamation funds are not available. Ohio is

adding new paragraph (C)(1)(c) to make eligible mining operations which

occurred during the period beginning August 4, 1977 and ending on or

before November 5, 1990, for which sureties became insolvent, and for

which sufficient reclamation funds are not available.

ORC 1513.37 paragraph (C)(2): Ohio is adding this new paragraph to

provide that the Chief shall follow the priorities set forth at ORC

1513.37(B)(1) and (B)(2) in determining which sites to reclaim using

the new authority granted under ORC 1513.37(C)(1)(b) and (c). The Chief

shall ensure that priority is given to those sites which are in the

immediate vicinity of a residential area or which have an adverse

economic impact upon the local community.

The proposed changes are found to be substantively identical to the

requirements of SMCRA at section 402(g)(4)(B) and (C).

11. Creation of the State Acid Mine Drainage Abatement and Treatment

Fund

ORC 1513.37 paragraph (E): Ohio is adding this new paragraph to

create in the State treasury the Acid Mine Drainage Abatement and

Treatment

[[Page 1672]]

Fund. The fund shall be administered by the Chief and shall consist of

grants from OSM to be used in consultation with the U.S. Department of

Agriculture, Natural Resources Conservation Service to abate and treat

acid mine drainage. Proposed ORC 1513.37 paragraphs (E)(1) through (7)

would specify activities eligible for financial support from the fund,

including the identification of affected hydrologic units, the sources

of acid mine drainage, and the effects of the drainage; the

identification of corrective measures to ablate or treat the drainage;

calculation of costs; and analysis of benefits.

The proposed changes are found to be substantively identical to

section 402(g)(7) of SMCRA.

12. AML Liens on Certain Properties Involved in Federally Funded AML

Reclamation Projects

ORC 1513.37 paragraph (G): Ohio is revising this paragraph to

provide that the Chief may file in the office of the county recorder a

statement of reclamation costs spent on certain properties affected by

Federally funded AML reclamation projects. Such statements would

constitute a lien upon the land as of the date of the State's

reclamation expenditures and would have a priority as a lien second

only to the lien of real property taxes imposed upon the land. This

revision is substantively identical to language contained in section

408(c) of SMCRA.

ORC 1513.37 paragraph (G)(3): Ohio is revising this paragraph to

clarify the procedure to be used by county recorders in recording and

indexing AML liens relating to Federally funded reclamation.

ORC 1513.37 paragraph (G)(4): Ohio is adding this new paragraph to

provide that AML liens relating to Federally funded reclamation shall

continue in force so long as any portion of the lien remains unpaid.

Conveyance of the land subject to an AML lien may be set aside if the

lien remains unpaid at the time of conveyance.

ORC 1513.37 paragraph (G)(5): Ohio is adding this new paragraph to

provide that AML liens relating to Federally funded reclamation shall

be foreclosed upon the substantial failure of a landowner to pay any

portion of the amount of the lien. Before proceeding with foreclosure,

the Chief shall make a written demand upon the landowner for payment

and shall give the landowner sixty days to pay the amount.

Although there are no direct Federal counterparts to the proposed

changes, the Director finds that they are not inconsistent with the

requirements of SMCRA at section 408(c).

13. Lands Eligible for Remining

ORC section 1513.01 paragraph (F): Ohio is adding this paragraph to

define the term ``lands eligible for remining'' to mean those lands

that otherwise would be eligible for expenditure of AML reclamation

funds under paragraph (C)(1) of ORC section 1513.37.

ORC section 1513.07 paragraph (E)(3)(b): Ohio is adding this new

paragraph to provide that, until October 1, 2004, any violation

resulting from an unanticipated event or condition at a surface coal

mining operation on lands eligible for remining shall not prevent

issuance of a coal mining permit to the person holding the remining

permit. An unanticipated event or condition is one that was not

contemplated by the applicable permit.

ORC section 1513.16 paragraph (A)(19)(b): Ohio is adding this new

paragraph to provide that coal mining permits on lands eligible for

remining shall require the operator to assume the responsibility for

successful revegetation of the remined area for two full years after

the last augmented seeding, fertilizing, or irrigation.

ORC section 1513.37 paragraph (C)(3): Ohio is adding this new

paragraph to provide that surface coal mining operations on lands

eligible for remining shall not affect the eligibility of those lands

for AML reclamation funding under this section of the ORC after the

release of the mining operation's performance bond. If the performance

bond for the remining operation is forfeited and is not sufficient for

adequate reclamation of the site, Ohio may use AML reclamation funding

under this section to augment the bond.

The proposed changes are found to be substantively identical to

SMCRA at sections 701(33) and (34), 515(b)(20)(B), and 404 to the

extent that 1513.07(E)(3)(b) applies up to, but not including 10/1/

2004.

14. Average Wage Rates

ORC section 1513.02 paragraph (J): Ohio is revising this paragraph

to provide that the State will use information from non-coal as well as

coal mining and reclamation operations in calculating average wage

rates. The newly calculated average wage rates shall apply to

reclamation performed for Ohio on both coal and non-coal mining sites.

While there are no Federal counterparts to this revision, the Director

finds that is not inconsistent with SMCRA or its corresponding Federal

regulations.

15. Deletion of Obsolete Language

ORC section 1513.07 paragraph (A)(1): Ohio is deleting obsolete

language from this paragraph concerning payment of permit fees for

areas covered by a permit in effect on August 16, 1982, as well as

language concerning interim continuance of underground coal mine

operations which were in effect prior to September 1, 1981.

The director finds that deletion of this obsolete language does not

render the Ohio program less stringent than SMCRA or less effective

than the corresponding federal regulations.

16. Activities Eligible for the Small Operator's Assistance Program

(SOAP)

ORC section 1513.07 paragraph (B)(4) (a) and (b): Ohio is revising

these paragraphs to expand the types of activities related to permit

applications which qualified laboratories can perform for permit

applicants under contracts funded by Ohio's SOAP. Qualifying activities

include determination of probable hydrologic consequences, development

of cross-section maps and plans, geologic drilling and reporting,

collection and reporting of archaeological information, performing pre-

blast surveys, and collection of information on protection of fish and

wildlife habitats. The coal mine operator shall reimburse the State for

the costs of SOAP-assisted services if the operator's actual and

attributed coal production for all locations exceeds 300,000 tons

during the 12 months immediately following the date of issuance of the

mining permit.

The proposed changes are found to be substantively identical to,

and therefore no less stringent than, sections 507(C)(1) and (h) of

SMCRA, except Ohio is required to amend ORC 1513.07(B)(4)(a)(i) or

otherwise clarify that probable hydrologic consequences determinations

include the engineering analyses and designs necessary for those

determinations.

17. Required Staff Training

ORC section 1513.34: Ohio is revising this section to delete the

requirements for minimum hourly amounts of initial and annual follow-up

training for certain staff positions. In lieu of a minimum of 80 hours

of training, Ohio shall provide adequate training and education, during

their probationary periods, for all persons appointed as inspection

officers. In lieu of a minimum of 40 hours of annual training, Ohio

shall provide, on a regular basis as funding allows, continuing

education and training as necessary for all inspection officers,

[[Page 1673]]

district supervisors, and enforcement personnel. While there are no

direct Federal counterparts to these Ohio training requirements, the

proposed changes are found to be not inconsistent with the requirements

of SMCRA at 503(a)(3), which requires that state regulatory authorities

employ sufficient administrative and technical personnel to enable the

State to regulate surface coal mining and reclamation operations in

accordance with SMCRA.

IV. Summary and Disposition of Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. Because no one

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

held. Comments were received from the Ohio Historic Preservation Office

on March 19, 1992 (Administrative Record No. OH-1671) pertaining to the

expansion of sites eligible for Federally funded AML projects. The

comment stated that ongoing coordination with the Ohio Historical

Society is necessary to address preservation concerns, and requested

notification of projects prior to initiation. The Director notes that

all abandoned mine lands projects are reviewed by the State Historic

Protection Officer (SHPO). Further, a statement of concurrence that no

significant cultural or historic properties will be adversely affected,

signed by the SHPO, is included with the National Environmental Policy

Act documents submitted prior to construction.

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. MSHA responded

that it had no comments in its letter dated April 20, 1995.

(Administrative Record No. 2113)

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.). EPA

concurred with the amendment in its letter to OSM dated June 2, 1995.

(Administrative Record No. OH-2129)

V. Director's Decision

Based on the above finding(s), the Director approves, with certain

additional requirements, the proposed amendment as submitted by Ohio on

February 7, 1992, as modified on February 27, 1992, September 2, 1992,

and March 31, 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 12988

The Department of the Interior has conducted the reviews required

by section 3 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.

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: December 13, 1996.

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 paragraph (dddd) to read as

follows:

Sec. 935.15 Approval of regulatory program amendments.

* * * * *

(dddd) With the exceptions noted below, the amendments submitted to

OSM on February 7, 1992, and revised on February 27, 1992, April 18,

1992 and March 31, 1995, are approved effective January 13, 1997.

[[Page 1674]]

ORC 1513.07(D)(2)...................... Confidential Information.

ORC 1513.08 & ORC 1513.18 (D) & (E), Reclamation Supplemental

and ORC 1514.06(G). Forfeiture Fund.

ORC 1513.13 (E)(1), (E)(2), (C)........ Limitation on Awards.

ORC 1513.15(F), ORC 1513.39(C)

ORC 1513.13(A)(3)...................... Alternative Dispute Resolution

to the extent that it does not

duplicate the current informal

review process.

ORC 1513.18(C)......................... Reclamation Contracts.

ORC 1513.18(I)......................... Reclamation of Forfeited Areas.

ORC 1513.27............................ Police Powers.

ORC 1513.33............................ AML Liens.

ORC 1513.37 (C), (C)(1), (C)(1)(b), Sites Eligible for AML.

(C)(1)(c) & (C)(2).

ORC 1513.37(E)......................... Acid Mine Fund.

ORC 1513.37(G)......................... Liens on Federally-Funded AML

Projects.

ORC 1513.07 (B), (B)(4), (B)(4)(a)(b).. SOAP.

ORC 1513.34............................ Staff Training.

ORC 1513.01(F), 1513.07(E)(3)(b), Remining to the extent that

1513.16(A)(19)(b), & 1513.37(C)(3). 1513.07(E)(3)(b) applies up

to, but does not include 10/1/

2004.

ORC 1513.01(H)(2)...................... Public Roadways.

ORC 1513.02(J)......................... Average Wage Rates.

ORC 1513.07(A)(1)...................... Delete interim continuance of

mining in effect prior to 9-1-

91.

ORC 1513.081 (Repealed and ORC Coal Mining Performance Bond

1513.08(B). Fund.

3. Section 935.16 is revised to read as follows:

Sec. 935.16 Required regulatory program amendments.

(a) By June 27, 1997, Ohio shall submit either a proposed amendment

or a description of an amendment to be proposed, together with a

timetable for adoption, to address the following:

(1) Amend the Ohio program at ORC 1513.13(E)(1)(a) to make it clear

that such awards may be made in connection with any administrative

review proceedings concerning an enforcement action, permit issuance

decision or employee discrimination complaint, not just those

concerning enforcement actions.

(2) Amend ORC 1513.13(E)(1) (b) and (c) to make it clear that such

costs may also be assessed against persons who participate in bad faith

appeals, not just those persons who initiate such bad faith appeals.

(3) Amend ORC 1513.07(B)(4)(a)(i) or otherwise clarify that

probable hydrologic consequences determinations include the engineering

analyses and designs necessary for those determinations.

(b) [Reserved]

[FR Doc. 97-709 Filed 1-10-97; 8:45 am]

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