Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-218-FOR; Amendment Number 61R]

Ohio Regulatory Program

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

Interior.

ACTION: Proposed rule; reopening of public comment period.

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SUMMARY: OSM is reopening the public comment period on 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). This amendment provides that areas reclaimed

following the removal of temporary structures that are part of the

sediment control system, such as sedimentation ponds, roads, and small

diversions, are not subject to a revegetation responsibility period and

bond liability period separate from that of the permit area or

increment thereof served by such facilities. The amendment also

authorizes as a husbandry practice that not restart the revegetation

responsibility period, the repair of damage to land and/or established

permanent vegetation that has been unavoidably disturbed. The amendment

is intended to improve operational efficiency of the Ohio program.

DATES: Written comments must be received on or before 4:00 p.m. on May

29, 1998. If requested, a public hearing on the proposed amendments

will be held on May 26, 1998. Requests to present oral testimony at the

hearing must be received on or before 4:00 p.m. on May 14, 1998.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or delivered to George Rieger, Field Branch Chief,

Appalachian Regional Coordinating Center, at the address listed below.

Copies of the Ohio program, the proposed amendment, a listing of

any scheduled public hearings, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

Friday, excluding holidays. Each requester may receive one free copy of

the proposed amendment by contacting the OSM Field Branch, Appalachian

Regional Coordinating Center.

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.

Ohio Division of Mines and Reclamation, 1855 Fountain Square Court,

Columbus, Ohio 43224, Telephone: (614) 265-1076.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Field Branch Chief, Appalachian Regional Coordinating

Center, Telephone: (412) 937-2153.

SUPPLEMENTARY INFORMATION:

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. Description of the Proposed Amendment

By letter dated February 11, 1993 (Administrative Record No. OH-

1831), Ohio submitted proposed Program Amendment Number 61 concerning

augmentative practices. OSM announced receipt of this amendment in the

April 1, 1993, Federal Register (58 FR 17173) 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 closed on May 3, 1993. Since no one requested an opportunity to

provide testimony at a public hearing, the scheduled hearing was

canceled.

By letter dated June 11, 1993 (administrative Record No. OH-1888),

Ohio submitted additional revisions to this proposed amendment. OSM

announced receipt of the revised amendment in the July 6, 1993, Federal

Register (58 FR 36177), and, in the same notice, reopened the public

comment period and again provided an opportunity for a public hearing.

The public comment period closed on July 21, 1993. On August 16, 1993

(58 FR 43261), OSM approved most of the proposed amendment, but

deferred decision on Ohio Administrative Code (OAC) 1501:13-9-15(F)

(5), (6), and (7) concerning nonaugmentative practices.

OSM reopened a public comment period on September 15, 1993 (58 FR

48333) for the provisions OAC 1501:13-9-15(F) (6) and (7) as originally

submitted on February 11, 1993, and revised on June 11, 1993, with

regard to removal of sedimentation ponds and associated areas. The

comment period closed on October 15, 1993. This notice also included

similar proposed revisions to the Kentucky and Illinois regulations as

well as a discussion of OSM's proposed policy concerning restart of the

revegetation responsibility

[[Page 23406]]

period upon the removal of required sedimentary control structures.

By letter dated April 14, 1998 (Administrative Record Number OH-

2175-00), Ohio submitted revised language of the Program Amendment #

61R. Subsection (f)(4) provides for practices that will not be

considered augmentative when the practice and the rate of applecation

is an accepted local practice for comparable unmined lands that can be

expected to continue as a postmining practice. Subsection (F)(5)

provides for the nonaugmentative repair of areas that held required

sediment control structures. Subsection (F)(6) provides the minimum

time that vegetation established or reestablished under subsections

(F)(4)(c) and (F)(5) must have been seeded prior to a request for Phase

III bond release. The proposed language is as follows.

OAC 1501:13-9-15(F)(4)

(c) Reseeding and adding soil amendments when necessary to repair

damage to land and/or established permanent vegetation, that is

unavoidably disturbed in order to meet the reclamation standards of

this chapter, provided that:

(I) The damage is not caused by a lack of planning, design, or

implemention of the mining and reclamation plan, inappropriate

reclamation practices on the part of the permittee, or the lack of

established permanent vegetation; and

(II) The total acreage of repaired areas under paragraphs (F)(4)

(b) & (c) of this rule does not exceed ten percent of the total land

affected, with no individual area exceeding three acres.

OAC 1501:13-9-15(F)(5)

Reseeding of areas that have been unavoidably disturbed in the

course of gaining access for removal of structures that are part of the

sediment control system or initial seeding of areas upon which the

sediment control system was located and subsequently removed will not

restart the period of extended responsibility for revegetation success.

OAC 1501:13-9-15(F)(6)

For the purposes of paragraphs (F)(4)(c) and (F)(5) of this rule,

permanent vegetation that is established or reestablished on these

areas must have been seeded a minimum of twelve months prior to the

request for Phase III bond release.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is now

seeking comments on the proposed amendments. Comments should address

whether the amendments satisfy the applicable program approval criteria

of 30 CFR 732.15. If the amendments are deemed adequate, they will

become part of the Ohio program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this notice and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Appalachian Regional

Coordinating Center will not necessarily be considered in the final

rulemaking or included in the Administrative Record.

Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by the close of

business on May 14, 1998. If no one requests an opportunity to testify

at the public hearing by that date, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate remarks and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those scheduled. The hearing will end after all persons

scheduled to testify and persons present in the audience who wish to

testify have been heard.

Public Meeting

If only one person or group requests to testify at a hearing, a

public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the amendments may

request a meeting by contacting the person listed under FOR FURTHER

INFORMATION CONTACT.

All such meetings will be open to the public and, if possible,

notices of meetings will be posted in advance at the locations listed

under ADDRESSES. A written summary of each public meeting will be made

a part of the Administrative Record.

IV. 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.

[[Page 23407]]

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: April 21, 1998.

Michael K. Robinson,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 98-11281 Filed 4-28-98; 8:45 am]

BILLING CODE 4310-05-M