Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-246-FOR]

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 is proposing revisions to section 1501:13-1-

04 of the Ohio Administrative Code (OAC) as it relates to exemptions

for coal extraction incidental to government-financed highway or other

construction. The amendment is intended to revise the Ohio program to

include counterparts to the recently promulgated ``AML Enhancement

Rule,'' which revised the Federal regulations at 30 CFR 707.5 and added

a new provision, at 30 CFR 874.17.

EFFECTIVE DATE: November 22, 1999.

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. 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 34688). You can find later actions on

conditions of approval and program amendments at 30 CFR 935.11, 935.15,

and 935.16.

II. Submission of the Proposed Amendment

By letter dated March 16, 1999 (Administrative Record No. OH-2178-

00) Ohio submitted a proposed amendment to its program concerning

exemptions for coal extraction incidental to government-financed

highway or other construction. Ohio submitted the proposed amendment at

its own initiative, in order to incorporate into its program the

expanded exemption recently promulgated in the Federal regulations at

30 CFR 707.5, as part of the ``AML Enhancement Rule.'' Under this rule,

approved Title IV abandoned mine land (AML) projects under SMCRA which

involve incidental coal extraction and are less than 50 percent

government financed may qualify for exemption. Projects which qualify

for this expanded exemption must also meet the newly promulgated

requirements contained in 30 CFR 874.17. (64 FR 7470, February 12,

1999). The proposed amendment was announced in the April 16, 1999,

Federal Register (64 FR 18857). The initial comment period closed on

May 17, 1999.

By letter dated July 9, 1999 (Administrative Record No. OH-2178-

06), Ohio submitted a revised and final version of the proposed

amendment. Ohio made this more recent submittal in response to an OSM,

July 1, 1999, issue letter (Administrative Record No. OH-2178-05). In

the letter, OSM had requested that the amendment clearly restrict

exemptions to projects that are AML eligible, and clearly require that

the exempted reclamation project be conducted in accordance with the

provisions of 30 CFR Subchapter R.

III. Director's Findings

The following are changes to OAC Section 1501:13-1-04 made in the

final submission of the proposed amendment. Revisions concerning

nonsubstantive wording, format, or organizational changes will not be

described in this notice.

OAC 1501:13-1-04 Exemption for coal extraction incidental to

government financed highway or other construction.

[[Page 63689]]

(a) The following sentence has been added to Subsection (A) (3):

``Funding at less than 50 percent may qualify if the project is

eligible under 1513:37 of the revised code and the construction is

undertaken as an approved reclamation project under Section 1513.30 or

1513.37 of the Revised Code.''

(b) New Subsection (C) is added and reads as follows:

(C) Requirements for approved reclamation projects under section

1513.30 and 1513.37 of the Revised Code with less than 50 percent

government financing.

(1) Determinations. The Division of Mines and Reclamation shall

determine:

(i) The likelihood of the coal being mined under a permit issued

under Section 1513.07 of the Revised Code considering the coal reserves

from existing mine maps or other sources, the existing environmental

conditions, all prior mining activity on or adjacent to the site,

current and historic coal production in the area, and any known or

anticipated interest in mining the site;

(ii) The likelihood that nearby or adjacent mining activities might

create new environmental problems or adversely affect existing

environmental problems at the site; and

(iii) The likelihood that reclamation activities at the site might

adversely affect nearby or adjacent mining activities.

(2) Concurrence. The regulatory program coordinator and the abandoned

mine lands program coordinator must concur on determinations of the

limits on any coal refuse, coal waste, or other coal deposits which can

be extracted under this exemption and in the delineation of the

boundaries of the AML project.

(3) Documentation. The AML case file must include the determinations

made under paragraph (1) and (2) of this rule, the information taken

into account in making these determinations, and the names of the

parties making the determinations.

(4) Special Requirements. For each exempt project the division must:

(i) Characterize the site in terms of mine drainage, active slides

and slide-prone areas, erosion and sedimentation, vegetation, toxic

materials, and hydrologic balance;

(ii) Ensure that the reclamation project is conducted in accordance

with the provisions of the AML program and procedures as approved by

the U.S. Secretary of Interior under 30 CFR Subchapter R;

(iii) Develop site-specific reclamation requirements, including

performance bonds when appropriate in accordance with approved AML

procedures; and

(iv) Require the contractor conducting the reclamation to provide

prior to the time reclamation begins applicable documents that clearly

authorize the extraction of coal and payment of royalties.

(5) Limitations. If the reclamation contractor extracts coal beyond the

limits of the incidental coal specified in paragraph (C)(2) of this

rule, the contractor must obtain a permit under section 1513.07 of the

Revised Code for such coal.

The changes described above revise the OAC to correspond with

revisions to the Code of Federal Regulations at 30 CFR 707 and 874 as

published in the February 12, 1999, Federal Register, 64 FR 7470. The

Director finds that the revisions do not render OAC section 1501:13-1-

04 inconsistent with section 528 (2) of SMCRA (30 U.S.C. 1278), and

that they are substantively identical to the changes to the Federal

regulatory definition of ``government-financed construction'' at 30 CFR

707.5 and to the Federal provision at 30 CFR 874.17, both of which were

promulgated on February 12, 1999. 64 FR 6470.

IV. 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. No comments were received.

Ohio Historical Preservation Office (OHPO)

Pursuant to 30 CFR 732.17(h)(4), the Director solicited comments on

the proposed amendment from the OHPO with respect to actual or

potential effects of the amendment on historic and cultural properties

in the state. In accordance with the National Historic Preservation Act

(NHPA), as amended (16 U.S.C. 470), the OHPO recommended the addition

of language to the amendment to ensure the review determinations

include the completion of coordination with the OHPO prior to

initiation of the excavation and/or reclamation activities

(Administrative Record No. OH-2178-04).

In response, we note that the consultation requirements of the NHPA

will apply if the approval of a reclamation project involving

incidental coal extraction constitutes a ``Federal undertaking,'' as

that term is defined at 36 CFR 800.2(o). Therefore, we do not believe

the additional language recommended by the OHPA is necessary. Moreover,

as discussed in the Finding above, the proposed amendment is

substantively identical to its Federal counterparts at 30 CFR 707.5 and

874.17.

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. The Department of

the Army, Army Corps of Engineers, concurred without comment

(Administrative Record No. OH-2178-02). No other comments were

received.

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 comments on the proposed amendment. EPA had no comments to offer

(Administrative Record OH-2178-03).

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as revised on July 9, 1999.

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).

[[Page 63690]]

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

counterpart 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 counterpart Federal regulations.

Unfunded Mandates

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 Part 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 8, 1999.

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 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 Date of final publication Citation/description

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March 16, 1999........................... November 22, 1999........... OAC 1501:13-1-04

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[FR Doc. 99-30356 Filed 11-19-99; 8:45 am]

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