Ohio Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

30 CFR Part 935

[OH-236-FOR]

Ohio Abandoned Mine Land Reclamation Plan

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

Interior.

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is approving, with certain exceptions, a proposed

amendment to the Ohio abandoned mine land reclamation plan (hereinafter

referred to as the ``Ohio plan'') under the Surface mining Control and

Reclamation Act of 1977 (SMCRA). Ohio proposed revisions and additions

to its plan pertaining to acid mine drainage set aside program, water

quality improvement, project eligibility, and remining incentives. The

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

SMCRA, as amended.

EFFECTIVE DATE: March 26, 1997.

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 Plan

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 Plan

On August 10, 1982, the Secretary of the Interior approved the Ohio

plan. Background information on the Ohio plan, including the

Secretary's findings, the disposition of comments, and the approval of

the plan can be found in the April 15, 1994, Federal Register (59 FR

17930). Subsequent actions concerning the conditions of approval and

amendments to the plan can be found at 30 CFR 935.25.

II. Submission of the Proposed Amendment

By letter dated March 19, 1996, (Administrative Record No. OH-2163)

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

its

[[Page 14309]]

own initiative. Ohio proposed to amend the following subsections of

Section 4--Abandoned Mined Land Evaluation Program: 4.1--Introduction,

4.5--Annual Work Plan, and 4.5.3--Project Selection.

OSM announced receipt of the proposed amendment in the April 17,

1996, Federal Register (61 FR 16731), 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 May 17, 1996.

During its review of the proposed amendment, OSM identified

concerns relating to the use of abandoned mine land funds for the

reclamation of previously mined areas by an active coal mine operator.

OSM notified Ohio of these concerns by letter dated November 13,1 996

(Administrative Record No. OH-2163-11).

By letter dated December 6, 1996 (Administrative Record No. OH-

2163-12), Ohio responded to OSM's concerns by submitting additional

explanatory information and revisions to its proposed program

amendment. Ohio revised the language on page 4-2 to read ``encourage

reclamation in conjunction with active mining of abandoned areas

causing acid mine drainage (AMD) within approved hydrologic units and

in other areas causing a MD through the funding of AMD remediation

projects and studies necessary to develop pollution abatement plans.''

At page 4-17, Ohio clarified that AMD funds are being used to collect

and analyze data necessary to qualify watersheds as hydrologic units.

At page 4-19, Ohio revised Stage 5 of the project selection process to

provide for the reclamation of abandoned mine areas causing AMD in

conjunction with active mining. Federal abandoned mine land funds may

be used to fund reclamation of abandoned mine lands causing AMD under

certain conditions.

By letter dated December 20, 1996 (Administrative Record No. OH-

2163-13), Ohio submitted additional revisions. At page 4-2, Ohio

deleted as one of its goals the reclamation in conjunction with active

mining of abandoned areas causing AMD within approved hydrologic areas

and other areas. At page 4-19, Ohio deleted the language identified as

Stage 5 of the project selection process. The deletions are based on

Ohio's understanding that such language is not necessary to fulfill its

goals and objectives regarding the use of acid mine drainage set-aside

funds for the restoration of watersheds impacted by acid mine drainage

from abandoned coal mines. Sufficient flexibility exists within its

program to manage the funds in a manner that will achieve its

objectives.

Based on the additional explanatory information and revisions to

the proposed program amendment submitted by Ohio, OSM reopened the

public comment period in the January 23, 1997 Federal Register (62 FR

3491). The public comment period closed on February 7, 1997.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 884.14 and 884.15, 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.

Abandoned Mined Land Evaluation Program

1. Section 4.1.G--Introduction

Ohio proposed to add subsection G to provide for the reclamation of

areas causing acid-mine drainage (AMD) such that AMD problems are

eliminated as a component of a high priority reclamation project; such

that AMD areas causing a ``general welfare'' impact to the public will

be eligible for abatement; and such that AMD areas impacting watersheds

will be abated in accordance with AMD set-aside criteria contained in

the Ohio Code (ORC) at section 1513.37(E).

The Director finds that the provisions of subsection G are not

inconsistent with section 402(g)(6)(B) and 402(g)(7) of SMCRA which

provide for the creation of an AMD abatement and treatment fund and

from which amounts are expended by the State to implement acid mine

drainage abatement and treatment plans.

2. Section 4.5--Annual Work Plan

Ohio proposed to delete the requirement that research and

demonstration projects be submitted to OSM independent of work plan

submissions using specific OSM procedures. In its submission letter

dated March 19, 1996, Ohio stated projects of this type would be

incorporated into the AMD program.

The Director finds that the proposed deletion does not render the

Ohio program less effective than the Federal regulations so long as

application for proposed implementation of research and demonstration

projects is made to OSM prior to using funds for such projects.

3. Section 4.5.3--Project Selection

Ohio proposed to revise the project selection process to include

AMD projects under certain conditions such as AMD set-aside, AMD

associated with other high priority projects, and AMD associated with

general welfare. Projects will be evaluated and approved based on an

AMD abatement and treatment plan. The plan will provide for the

comprehensive abatement of the causes and treatment of the effects of

AMD within qualified hydrologic units affected by coal mining

practices. The plan will identify the qualified hydrologic unit and the

sources and effect of AMD within the unit. It will also identify

projects and treatment and abatement measures, as well as cost and

sources of funding. An analysis of the cost-effectiveness and

environmental benefits of the treatment and abatement measures is also

required. Ohio defined ``qualified hydrologic unit'' as a unit in which

the water quality has been significantly affected by AMD from coal

mining practices in a manner which adversely impacts biological

resources and which contains lands and waters that meet certain,

specified eligibility requirements.

Ohio proposed to fund AMD projects associated with ``general

welfare'' according to specified guidelines. Ohio defined ``general

welfare'' (as used in establishing the priority of AMD projects) as

meaning an adverse impact, including an economic impact, on either a

residential area, or community resulting from the mine drainage

problem.

The Director finds that the project selection process as specified

in section 4.5.3, State 4, is consistent with the plan content

requirements at 30 CFR 876.13 (a)-(g) and the eligibility requirements

found at 30 CFR 874.12. Further, the definition of ``qualified

hydrologic unit'' is substantively identical to the Federal definition

found at 30 CFR 870.5.

Summary and Disposition of Comments

Public 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. Two public comments were received. One commenter stated that

ongoing coordination with the Ohio Historical Society is necessary to

address preservation concerns. The Director notes that all abandoned

mine land projects, including those negotiated with adjacent mine

operators, are reviewed by the State Historic

[[Page 14310]]

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.

Another commenter had two concerns: (1) That the proposed revisions

were unclear as whether Ohio's intention was to elevate the priority of

AMD problems or to eliminate AMD problems as a component of high

priority reclamation, and (2) that the issue of who assumes liability

for remining operations is unclear. With respect to the first issue,

the Director notes that the intent of the ``general welfare'' provision

is to allow the use of Federal AML funds for AMD abatement projects

that are not necessarily part of an approved hydrologic unit under the

AMD set-aside program. This is accomplished by elevating the priority

when the general welfare requirements are met. With respect to the

second issue, The Director notes that the remining provisions were

deleted in Ohio's December 20, 1996, revisions to the original

amendment.

Federal Agency Comments

Pursuant to 884.14(a)(2) and 884.15(a), the Director solicited

comments on the proposed amendment from various other Federal agencies

with an actual or potential interest in the Ohio plan. The U.S.

Department of the Army, Army Corps of Engineers, and the U.S.

Department of Labor, Mine Safety and Health Administration, concurred

without comment.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), the Director solicited the

written concurrence of the Administrator of the EPA with respect to

those proposed plan amendment which relate to air or water quality

standards promulgated under the authority of the Clean Air Act (42

U.S.C. 7401 et seq.) or the Clean Water Act (33 U.S.C. 1252 et seq.).

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.

V. Director's Decision

Based on the above findings, the Director approves the proposed

plan amendment as submitted by Ohio on March 19, 1996, and revised on

December 6, 1996, and December 20, 1996.

The Federal regulations at 30 CFR Part 935, codifying decisions

concerning the Ohio plan, are being amended to implement this decision.

This final rule is being made effective immediately to expedite the

State plan amendment process and to encourage States to bring their

plans 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 proposed 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 and Tribal abandoned mine land reclamation plans and revisions

thereof since each such plan is drafted and promulgated by a specific

State or Tribal, not by OSM. Decisions on proposed abandoned mine land

reclamation plans and revisions thereof submitted by a State or Tribe

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR

Parts 884 and 888.

National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed State and Tribal abandoned mine land

reclamation plans and revisions thereof are categorically excluded from

compliance with the National Environmental Policy Act (42 U.S.C. 4332)

by the Manual of the Department of the Interior (516 DM 6, appendix 8,

paragraph 8.4B(29)).

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 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. In making the

determination as to whether this rule would have a significant economic

impact, the Department relied upon the data and assumptions in the

analyses 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: March 5, 1997.

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 935.25 is amended in the table by adding a new entry in

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

follows:

Sec. 935.25 Approval of Ohio abandoned mine land reclamation plan

amendments.

* * * * *

[[Page 14311]]

------------------------------------------------------------------------

Original amendment submission Date of final

date publication Citation/Description

------------------------------------------------------------------------

* * * * * * *

March 19, 1996................ March 26, 1997... Revisions to the Ohio

Abandoned Mine Land

Reclamation Plan to

provide for the

reclamation of areas

causing acid mine

drainage AMD and to

revise the project

selection process.

------------------------------------------------------------------------

[FR Doc. 97-7536 Filed 3-25-97; 8:45 am]

BILLING CODE 4310-05-M