Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-243-FOR, #76]

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 (Ohio program) under the Surface Mining Control and Reclamation

Act of 1977 (SMCRA). Ohio proposed revisions to its rules pertaining to

permitting requirements, bond release, and performance standards to be

consistent with the corresponding Federal regulations.

EFFECTIVE DATE: December 4, 1998.

FOR FURTHER INFORMATION CONTACT: George Rieger, Manager, Pittsburgh

Oversight and Inspection Office, Appalachian Regional Coordinating

Center, OSM, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: (412)

937-2153. Internet: [email protected].

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. You can find background information on the

Ohio program, including the Secretary's findings, the disposition of

comments, and the conditions of approval in the August 10, 1982,

Federal Register (47 FR 34668). You can find later actions on

conditions of approval and program amendments at 30 CFR 935.11, 935.12,

935.15, and 935.16.

II. Submission of the Proposed Amendment

By letter dated December 30, 1997 (Administrative Record No. OH-

2174-05), Ohio submitted a proposed amendment to its program in

accordance with SMCRA and 30 CFR 732.17(c). Ohio proposes to revise the

Ohio Administrative Code (OAC) at sections:

1501.13-4-05--Permit Application Requirements

1501.13-4-12--Special Categories of Mining

1501.13-4-14--Underground Permit Application Requirements

1501.13-7-05--Release of Performance Bond

1601.13-9-04--Performance Standards

We announced receipt of the proposed amendment in the January 23,

1998, Federal Register (63 FR 3507), invited public comment, and

provided an opportunity for a public hearing on the adequacy of the

proposed amendment. The public comment period closed on February 23,

1998.

During our review of the amendment, we identified concerns with

Ohio's rules at OAC 1501 at subsections 13-4-12, 13-4-05, 13-4-14, and

13-9-04. We notified Ohio of our concerns via electronic mail on May 5,

1998 (Administrative Record No. OH-2174-11). By letter dated June 2,

1998 (Administrative Record No. OH-2174-12), Ohio submitted revisions

at OAC 1501 at subsections:

13-4-05 (H)(1)(c), (H)(2)(c), (H)(6)

13-4-14 (H)(1)(c), (H)(2)(c), (H)(6)

13-9-04 (H)(1)(c)(ii), (H)(1)(d)

to reference the criteria in Natural Resources Conservation Service's

Technical Release No. 60 (TR 60), ``Earth Dams and Reservoirs,''

relating to the provisions of 1513.13(E) (1) and (2).

During a conference call on July 16, 1998 (Administrative Record

No. OH-2174-13), we informed Ohio that one issue remained at OAC

1501:13-4-12. On September 4, 1998, Ohio telefaxed us revisions to

subsection 13-4-12(F) (Administrative Record No. OH-2174-16).

Based on these revisions, we reopened the public comment period in

the October 6, 1998, Federal Register (63 FR 53618). The comment period

closed on October 21, 1998.

III. Director's Findings

Following, according to SMCRA and the Federal regulations at 30 CFR

732.15 and 732.17, are our findings concerning the proposed amendment.

Any revisions that we do not specifically discuss below concern

nonsubstantive wording changes or revised cross-references and

paragraph notations to reflect organizational changes that result from

this amendment.

A. Revisions to Ohio's Regulations That Are Substantively Identical to

the Corresponding Provisions of the Federal Regulations

The proposed State regulations listed in the table below contain

language that is the same or similar to the

[[Page 66988]]

corresponding sections of the Federal regulations. Any differences

between the proposed State regulations and the Federal regulations are

nonsubstantive.

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Topic State regulation (OAC) Federal counterpart (30 CFR)

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Permit Application Requirements 1501:13-4-05(H)(1)(a)..................... 780.25(a)

Permit Application Requirements 1501.13-4-05(H)(1)(b)..................... 780.25(a)(2)

Permit Application Requirements 1501:13-4-05(H)(1)(c)..................... 780.25(a)(3)

Permit Application Requirements 1501:13-4-05(H)(2)(c)..................... 780.25(c)(3)

Permit Application Requirements 1501:13-4-05(H)(3)(a)..................... 780.25(c)

Permit Application Requirements 1501:13-4-05(H)(3)(c)..................... 780.25(c)(2)

Permit Application Requirements 1501:13-4-05(H)(6)........................ 780.25(f)

Permit Application Requirements 1501:13-4-12(E)........................... 785.16(a)

Requirements for Special 1501:13-4(H)(1)(a)........................ 784.16(a)

Categories Underground Mining.

Permit Application Underground 150:13-4-14(H)(1)(b)...................... 784.16(a)(2)

Mining.

Permit Application Underground 1501:13-4-14(H)(1)(c)..................... 784.16(a)(3)

Mining.

Permit Application Requirements 1501:13-4-14(H)(2)(c)..................... 784.16(c)(3)

Underground Mining.

Permit Application Requirements 1501:13-4-14(H)(3)(a)..................... 784.16(c)

Underground Mining.

Permit Application Requirements 1501:13-4-14(H)(3)(c)..................... 784.16(c)(2)

Underground Mining.

Permit Application Requirements 1501:13-4-14(H)(6)........................ 784.16(f)

Underground Mining.

Permit Application Requirements 1501:13-7-05(A)(2)(a)(iv)................. 800.40(a)(3)

Bond Release.

Protection of Hydrologic System 1501:13-9-04(H)(1)(a)..................... 816/817.49(a)(1)

Protection of Hydrologic System 1501:13-9-04(H)(1)(c)(i).................. 816/817.49(a)(4)(i)

Protection of Hydrologic System 1501:13-9-04(H)(1)(c)(ii)................. 816/817.49(a)(4)(ii)

Protection of Hydrologic System 1501:13-9-04(H)(1)(d)..................... 816/817.49(a)(5)

Protection of Hydrologic System 1501:13-9-04(H)(1)(e)(i).................. 816/817.49(a)(6)(i)

Protection of Hydrologic System 1501:13-9-04(H)(1)(h)(iii)................ 816/817.49(a)(ii)(A)

Protection of Hydrologic System 1501:13-9-04(H)(1)(k)..................... 816/817.49(a)(12)

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B. Regulations That Ohio Removed From the Ohio Administrative Code

(OAC)

Ohio proposed to remove OAC 1501:13-9-04(G)(3)(b)--Sedimentation

Ponds. We are approving the deletion because Ohio addresses these

requirements at OAC 1501:13-9-04(H)(1)(h). We find that this change

does not make the Ohio program less effective than the Federal

regulations.

C. Revisions to Ohio's Regulations That Are Not Substantively Identical

to the Corresponding Provisions of the Federal Regulations

Ohio proposed to add section OAC 1501:13-4-12(F)(4)(e) to prohibit

a decrease in the aggregate total prime farmland acreage from that

which existed prior to mining. Any constructed permanent water bodies

must be located within the post-reclamation non-prime farmland portions

of the permit area. If the prime farmland acreage is to be restored in

a location other than the premining location, Ohio must approve the

relocation. The permittee must obtain the consent of all affected

landowners. We approve the provisions of this section because they are

no less effective than 30 CFR 785.17(e)(5).

Ohio proposed to revise OAC 1501:13-7-05(A)(2)(c)(ii) to require

that the request for the approval of reclamation phase III includes

yield data for those acres reclaimed as pasture or grazing land, if

appropriate. While the Federal regulations at 30 CFR 800.40 do not

include this specific requirement, we are approving the revision as it

is not inconsistent with the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

We 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 requested a copy of the

specific language being proposed at OAC 1501:13-4-12(E). He also

suggested that OAC 1501:13-9-4(H) include a notification of MSHA

provision. We note that the Federal regulations at 30 816/817.49(a)(9)

do not have this requirement. The second commenter questioned the 15-

day comment period. She thought 30 days was required. We note that the

shorter comment period appeared in the second Federal Register notice

which re-opened the comment period. 30 CFR 732.17(h)(3) provides for a

15-day comment period under certain circumstances. The commenter also

submitted a list of questions which generally addressed the effects of

the proposed amendment on the landowner, industry, and the community at

large. We note that amendments are reviewed based on consistency with

the Federal regulations and accordance with the provisions of SMCRA. As

discussed in Section V above, Ohio's proposed amendment is approved

because it meets those standards.

Federal Agency Comments

According to 30 CFR 732.17(h)(11)(i), we solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Ohio program. The Department of Labor, Mine

Safety and Health Administration, and the Department of the Army, Army

Corps of Engineers, both concurred without comment.

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.).

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 to

OSM's request.

V. Director's Decision

Based on the above findings, we approve the proposed amendment as

submitted by Ohio on December 30, 1997 and revised on June 2, 1998 and

[[Page 66989]]

September 4, 1998. We approve the rules that Ohio proposed with the

provision that they be fully placed in force in identical form to the

rules submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations

at 30 CFR Part 935 which codifies decisions concerning the Ohio

program. We are making this final rule effective immediately to

expedite the State program amendment process and to encourage Ohio to

bring its program 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 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

We have analyzed this rule in accordance with the criteria of the

National Environmental Policy Act and 526DM. This rule does not

constitute a major Federal action significantly affecting the quality

of the human environment.

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 Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501

et seq.), this rule will not produce a Federal mandate of $100 million

or greater in any year, i.e., it is not a ``significant regulatory

action'' under the Unfunded Mandates Reform Act.

List of Subjects in 30 CFR 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 13, 1998.

Allen D. Klein,

Assistant Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 935--OHIO

1. The authority citation for Part 935 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 935.15 is amended in the table by adding a new entry in

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

follows:

Sec. 935.15 Approval of Ohio regulatory program amendments.

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Original amendment submission Date of final

date publication Citation/description

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* * * * * * *

December 30, 1997............. December 4, 1998. OAC 1501:13-4-05, 1501:13-4-12, 1501:13-4-14, 1501: 13-7-05, 1501:13-9-04.

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[FR Doc. 98-32349 Filed 12-3-98; 8:45 am]

BILLING CODE 4310-05-P