Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-218-FOR; Amendment Number 61]

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 an 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 and 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, the repair of damage

to land and/or established permanent vegetation that has been

unavoidably disturbed, that does not restart the revegetation

responsibility period. The amendment is intended to improve operational

efficiency of the Ohio program.

EFFECTIVE DATE: September 29, 1998.

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

[[Page 51830]]

amendments can be found at 30 CFR 935.11, 935.15, and 935.16.

II. Submission 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, no hearing was held.

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

Ohio submitted additional revisions to this proposed amendment

(ProgramAmendment Number 61R). 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 period upon removal of required sedimentary

control structures. Subsequently, in the May 29, 1996, Federal Register

(61 FR 26792), and in the October 22, 1997 Federal Register (62 FR

54765) OSM approved similar proposed revisions to the Colorado and

Illinois regulations (respectively), based on the adoption of the

proposed OSM policy published on September 15, 1993 (58 FR 48333).

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

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

61R. Subsection OAC 1501:13-9-15(F)(4)(c) provides for practices that

will not be considered augmentative when the practice and the rate of

application 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.

On April 29, 1998 (63 FR 23405), OSM reopened the public comment

period and solicited comments on the proposed provisions submitted on

April 14, 1998. The comment period closed on May 29, 1998. No one

requested an opportunity to testify at a public hearing, so none was

held.

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.

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

Existing subsections OAC 1501:13-9-15(F)(4)(c) and (d) have been

redesignated subsections (d) and (e), respectively, and new subsection

(c) has been added to read as follows.

(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

implementation 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.

As amended, subsection 1501:13-9-15(F)(4)(c) authorizes as a

husbandry practice that does not restart the revegetation

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

permanent vegetation that has been unavoidably disturbed. The Federal

regulations at 30 CFR 816.116(c)(4) provide for the approval of such

husbandry practices provided that such practices can be expected to

continue as part of the postmining land use, or if discontinuance of

the practices after the liability period expires will not reduce the

probability of permanent revegetation success.

In its submittal of this amendment, Ohio asserted that if land is

damaged for any reason, careful management of that land would dictate

that the damage is repaired. Repair of most damage to land involves a

disturbance to established vegetation or ground cover. Once vegetation

or ground cover is disturbed or destroyed, normal maintenance practice

would be to replace the established vegetation through seeding,

sodding, or some other practice necessary to reestablish the damaged

vegetation.

Ohio further stated that it has been its experience that many

reclaimed sites will experience some type of damage to established

vegetation at some point during the period of extended responsibility

period. Examples of such damage would include erosion, small slips,

channel erosion, unauthorized access, landowner tillage, and

settlement. This damage is not normally a result of failure of

vegetation or inadequate vegetation practices, and the degree of damage

varies from site to site. In fact, the proposed amendment requires that

the damage not be caused by a lack of planning, design, or

implementation of the mining and reclamation plan, inappropriate

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

established permanent vegetation. Further, Ohio asserted that it is

proposing reasonable size limitations on the repairs that can be made

that will not restart the revegetation responsibility period. In

addition, all vegetation cover and productivity standards must be met,

and any repaired areas must meet a maintenance period of at least one

year after repaired areas are seeded before final bond release. These

additional standards, the State asserts, will ensure that all

vegetation is successful prior to bond release.

The Director agrees that, considering the limitations provided for

by Ohio as to cause of the damage to land and size, the proposed

husbandry practice is reasonable, and that repair of the damage as

explained by the State is a normal husbandry practice in Ohio. The

Director also concurs with the State's assertion that to achieve bond

release, all the Ohio program's vegetation cover and productivity

standards must be met. Therefore, the Director finds that proposed OAC

1501:13-9-15(F)(4) is not inconsistent with SMCRA section 515(b)(20)(A)

and no less effective than the Federal regulations at 30 CFR

816.116(c).

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

Subsection OAC 1501:13-9-15(F)(5) has been amended to provide that

[[Page 51831]]

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.

In the past, OSM has either disapproved or taken no action on

proposed State program amendment provisions that would have specified

that areas reclaimed following the removal of siltation structures and

associated 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. In response to this

program amendment and similar recent program amendments from other

States, and to concerns raised by other parties, OSM has reconsidered

its position on this issue.

a. OSM's Policy Concerning the Term of Liability for Reclamation of

Temporary Sediment Control Facilities

Section 515(b)(20) of SMCRA provides that the revegetation

responsibility period shall commence ``after the last year of augmented

seeding, fertilizing, irrigation, or other work'' needed to assure

revegetation success. In the absence of any indication of Congressional

intent in the legislative history, OSM interprets this requirement as

applying to the increment or permit area as a whole, not individually

to those lands within the permit area upon which revegetation is

delayed solely because of their use in support of the reclamation

effort on the planted area.

As implied in the preamble discussion of 30 CFR 816.46(b)(5), which

prohibits the removal of ponds or other siltation structures until 2

years after the last augmented seeding, planting of the sites from

which such structures are removed need not itself be considered an

augmented seeding necessitating an extended or separate liability

period (48 FR 44038-44039; September 26, 1983). Indeed, given the

Federal regulation that prohibits removal of sediment ponds until two

years after the last augmented seeding, restarting the five year

responsibility period when a sediment pond is removed would result in

the responsibility period being a minimum of seven years in all cases.

This is clearly not consistent with the five year minimum period

mandated by SMCRA at section 515(b)(20)(A).

The purpose of the revegetation responsibility period is to ensure

that the mined area has been reclaimed to a condition capable of

supporting the desired permanent vegetation. Achievement of this

purpose will not be adversely affected by this interpretation of

section 515(b)(20) of SMCRA since (1) the lands involved are small in

size and widely dispersed and (2) the delay in establishing

revegetation on these sites is due not to reclamation deficiencies or

the facilitation of mining, but rather to the regulatory requirement

that ponds and diversions be retained and maintained to control runoff

from the planted area until the revegetation is sufficiently

established to render such structures unnecessary for the protection of

water quality.

In addition, the areas affected likely would be no larger than

those which could be reseeded (without restarting the revegetation

period) in the course of performing normal husbandry practices, as that

term is defined in 30 CFR 816.116(c)(4) and explained in the preamble

to that rule (53 FR 34636, 34641; September 7, 1988; 52 FR 28012,

28016; July 27, 1987). Areas this small would have a negligible impact

on any evaluation of the permit area as a whole. Most importantly, this

interpretation is unlikely to adversely affect the regulatory

authority's ability to make a statistically valid determination as to

whether a diverse, effective permanent vegetative cover has been

successfully established in accordance with the appropriate

revegetation success standards. From a practical standpoint, it is

usually difficult to identify precisely where such areas are located in

the field once revegetation is established in accordance with the

approved reclamation plan.

The above discussion of the rules in 30 CFR Part 816, which applies

to surface mining activities, also pertains to similarly or identically

constructed section in 30 CFR Part 817, which applies to underground

mining activities.

b. Comparison of Ohio's Proposed Provision OAC 1501:13-9-15(F)(5) with

OSM's Policy Clarification

Ohio proposes to allow, as a nonaugmentative practice, the

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 for initial seeding of areas upon which the

sediment control system was located and subsequently removed. Ohio's

reference to areas that have been unavoidably disturbed in the course

of gaining access for removal of sediment control structures is

interpreted by OSM to include those roads necessary for maintenance of

sediment ponds, diversions, and reclamation areas. However, such roads

would not include haul roads or other primary roads which should either

have been removed upon completion of mining or approved to be retained

for an approved postmining land use.

Since the Ohio provision is limited to sediment control structures

and to areas unavoidably disturbed to gain access to those sediment

control structures this provision is consistent with the OSM policy

stated above. As interpreted in the policy statement above, the removal

of sediment ponds and related structures is a nonaugmentative practice

that does not restart the five-year responsibility period. Therefore,

the Director finds that proposed OAC 1501:13-9-15(F)(5) is not

inconsistent with SMCRA section 515(b)(20)(A) and no less effective

than the Federal regulations at 30 CFR 816.116(c).

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

Subsection OAC 1501:13-9-15(F)(6) has been amended to provide that

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.

As discussed above, the Federal regulations provide that sediment

ponds and diversions be retained and maintained to control runoff from

the planted area until the revegetation is sufficiently established to

render such structures unnecessary for the protection of water quality.

Therefore, when the sediment control structures are removed, the

surrounding drainage area has already been effectively revegetated.

Following this, the entire revegetated area (or increment thereof),

including the reclaimed area where the sediment control structure was

located, is subject to the full Ohio program requirements concerning

final inspection for bond release. The same is true for areas that have

been repaired under approved husbandry practices. That is, the proposed

12-month criterion in no way reduces or eliminates any of Ohio's

standards for reclamation success for bond release. The Director

believes that the 12-month criterion should be sufficient to establish

a permanent and diverse vegetative cover as is required by SMCRA

section 515(b)(19), especially since the lands typically involved will

be small in size, widely dispersed, and surrounded by revegetated

lands.

Therefore, the Director finds that the proposed provision at OAC

1501:13-9-15(F)(6), as it pertains to OAC 1501:13-

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9-15(F)(4)(c) and (F)(5) is not inconsistent with SMCRA section

515(b)(19) and can be approved.

IV. Summary and Disposition of Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment and OSM's proposed

policy.

Comments were received from the Kentucky Coal Association, the

North Dakota Public Service Commission, the Ohio Mining and Reclamation

Association, the Buckeye Industrial Mining Co., the R&F Coal Company,

the Lignite Energy Council, the National Coal Association, the Kentucky

Resources Council, and the Ohio Department of Natural Resources. Except

for the Kentucky Resources Council, all of the commenters were in favor

of the policy.

In response to the Director's proposed clarification of OSM policy,

the Kentucky Resources Council initiates its comments with the premise

that OSM has proposed to treat the initial seeding and restoration of

areas disturbed by diversions, roads and sedimentation ponds as

``normal husbandry practices.'' It then argues that the initial seeding

of such areas is not normal husbandry practice, and any revegetation

other than ``husbandry practices'' as defined by 30 CFR 816.116(c)(4)

constitutes ``augmented seeding'' and would therefore require extension

of the full liability period for the establishment of permanent

vegetation. First, the Director did not base not restarting the

liability period on the contention that revegetation of such areas is a

normal husbandry practice. Second, the Director does not agree that any

revegetation other than ``normal husbandry practices'' constitutes

``augmented seeding.'' The legislative history of the Act reveals no

specific Congressional intent in the use of the term ``augmented

seeding.'' Accordingly, OSM's interpretation of augmented seeding is

given deference so long as it has a rational basis. OSM would not

consider the seeding of small areas, such as ponds and their associated

diversions and roads, as augmented seeding. However, only the

reclamation and reseeding of ancillary roads and not haul roads would

be considered nonaugmentative. For further discussion of such

rationale, see the Director's Finding above. Areas reclaimed following

removal of temporary sediment control, and associated structures such

as diversions, disposal and storage areas for accumulated sediments and

sediment pond embankment material, and ancillary roads used to access

such areas would not be subject to a separate or extended bond

liability period apart from the applicable permit area served by such

structures. The seeding of sedimentation ponds and their associated

diversions and roads is not the result of reclamation failure, but

because 30 CFR 816.46(b)(5) prohibits the removal of temporary

sedimentation ponds until two years after the last augmented seeding.

The Kentucky Resources Council overlooks the fact that for the vast

majority of the reclaimed area the revegetation responsibility period

will be at least five years. Neither Congressional history nor the

language of the statute distinguishes between initial overall

reclamation of a mined area and the subsequent restoration of temporary

structures like sedimentation ponds and their associated areas. In the

absence of such distinction, the Secretary is delegated discretion to

determine whether a proposed state amendment is no less effective than

the Act and consistent with the counterpart Federal regulation. The

Director's stated interpretation of Section 515(b)(20) is that the

period of revegetation responsibility applies ``to the increment or

permit area as a whole, not individually to those lands within that

area upon which revegetation is delayed solely because of their use in

support of the reclamation effort of the planted area.'' See 58 FR

48333-48335, September 15, 1993.

OSM has taken a consistent position in approving an amendment to

the Colorado (61 FR 26792, May 29, 1996) and Illinois (62 FR 54765,

October 22, 1997) surface mining programs which provided that reclaimed

temporary drainage control facilities shall not be subject to the

extended liability period for revegetative success or the related bond

release criteria. The Director, therefore, does not agree with the

commenter's interpretation of Section 515(b)(20) of SMCRA.

The Kentucky Resources Council also asserts that OSM's position

violates 30 CFR 816.133. Section 816.133 requires that disturbed areas

be restored in a timely manner to the premining uses of land or higher

or better uses. In response, the Director notes that the Ohio amendment

does not eliminate this requirement.

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. Comments were

received from the U.S. Forest Service and the U.S. Bureau of Mines. The

U.S. Forest Service commented that it had reviewed OSM's proposed rule

to clarify its policy towards revegetation success and agreed with the

proposed rule.

The U.S. Bureau of Mines suggested that OSM consider the

significant differences in the reclamation of sediment structures and

roads, since sediment structures generally possess characteristics

necessary for successful reclamation, while roads generally require

significant initial work to develop a necessary growth environment. OSM

agrees with the commenter. OSM's policy and Ohio's regulations require

that when such structures are removed, the land on which they were

located must be regraded and revegetated in accordance with approved

plans and the requirements of 30 CFR 816.111 through 816.116, or State

counterparts. Because the Ohio program amendment limits the reclamation

and reseeding to small areas (those areas that have been unavoidably

disturbed in the course of gaining access for removal of sediment

control structures) roads posing significant potential for reclamation

problems will be excluded.

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.). The

proposed Ohio amendment does not pertain to air or water quality

standards and, therefore, EPA's concurrence is not required.

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

proposed amendment from the EPA. The EPA responded and concurred

without comment on October 18, 1993 (Administrative Record No. KY-1246)

.

V. Director's Decision

Based on the above findings, the Director approves Ohio's

regulations at OAC 1501:13-9-15(F)(4)(c), (F)(5), and (F6).

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.

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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 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 16, 1998.

Ronald C. Recker,

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.

* * * * *

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

Original amendment submission Date of final

date publication Citation/description

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

* * * *

* * *

February 11, 1993............. September 29, OAC 1501:13-9-

1998. 15(F)(4)(c), (F)(5),

and (F)(6).

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[FR Doc. 98-25980 Filed 9-28-98; 8:45 am]

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