Ohio Regulatory Program Amendment

DEPARTMENT OF THE INTERIOR

30 CFR Part 935

Ohio Regulatory Program Amendment

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

Interior.

ACTION: Proposed rule; reopening and extension of public comment

period.

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

SUMMARY: OSM is reopening the public comment period for proposed

Program Amendment Number 62 Revised (PA 62R) to the Ohio permanent

regulatory program (hereinafter referred to as the Ohio program) under

the Surface Mining Control and Reclamation Act of 1977. The amendment

was initiated by Ohio and is intended to make the Ohio program as

effective as the corresponding Federal regulations. The amendment

concerns the removal of siltation structures prior to two years after

the last augmented seeding upon a demonstration that alternative

measures are the best technology currently available for sediment

control.

This document sets forth the times and locations that the Ohio

program and proposed amendment to that program will be available for

public inspection, the dates and times of the reopened comment period

during which interested persons may submit written comments on the

proposed amendment, and the procedures that will be followed regarding

the public hearing, if one is requested.

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

14, 1994. If requested, a public hearing on the proposed amendment will

be held at 1 p.m. on April 11, 1994. Requests to present oral testimony

at the hearing must be received on or before 4 p.m. on April 6, 1994.

Any disabled individual who has need for a special accommodation to

attend a public hearing should contact the individual listed under FOR

FURTHER INFORMATION CONTACT.

ADDRESSES: Written comments and requests to testify at the hearing

should be mailed or hand delivered to Richard J. Seibel, Director,

Columbus Field Office, at the address listed below. Copies of the Ohio

program, the proposed amendment, 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, free of charge,

one copy of the proposed amendment by contacting OSM's Columbus Field

Office.

Office of Surface Mining Reclamation and Enforcement, Columbus Field

Office, 4480 Refugee Road, suite 201, Columbus, Ohio 43232, Telephone:

(614) 866-0578.

Ohio Department of Natural Resources, Division of Reclamation, 1855

Fountain Square Court, Building H-3, Columbus, Ohio 43224, Telephone:

(614) 265-6675.

FOR FURTHER INFORMATION CONTACT:

Richard J. Seibel, Director, Columbus Field Office, Telephone: (614)

866-0578.

SUPPLEMENTARY INFORMATION:

I. Background

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 a

detailed explanation of the conditions of approval, can be found in the

August 10, 1982, Federal Register (47 FR 34688). Subsequent actions

concerning the conditions of approval and program amendments are

identified at 30 CFR 935.11, 935.12, 935.15, and 935.16.

II. Discussion of the Proposed Amendment

By letter dated March 4, 1993 (Administrative Record No. OH-1841),

the Ohio Department of Natural Resources, Division of Reclamation

(Ohio) submitted proposed Program Amendment Number 62 (PA 62). In this

amendment, Ohio proposed to revise three rules in the Ohio

Administrative Code (OAC) to authorize the removal of siltation

structures prior to two years after the last augmented seeding upon a

demonstration that alternative measures are the best technology

currently available for sediment control. Ohio proposed that this

demonstration must be specific and be contained in or amended into the

permit, and will be reviewed on a case-by-case basis by the Chief of

the Ohio Department of Natural Resources, Division of Reclamation (the

Chief). As part of and in support of PA 62, Ohio also submitted

Administrative Record information discussing Ohio's intended

implementation of this proposal.

OSM announced its receipt of proposed PA 62 in the Federal Register

(58 FR 17372) on April 2, 1993. The public comment period ended on May

3, 1993. The public hearing scheduled for April 27, 1993, was not held

because no one requested an opportunity to testify.

By letter dated September 20, 1993, (Administrative Record No. OH-

1931), OSM provided its comments to Ohio on the March, 4, 1993,

submission of PA 62. OSM found that, in order for OSM to approve PA 62,

Ohio must demonstrate that vegetation established earlier than the end

of the first two years will control sediment no less effectively than a

siltation structure. Further, Ohio must supply the policy or review

criteria by which the State will review proposals from permittees that

certain erosion-control methods other than siltation structures are the

best technology currently available.

By letter dated October 20, 1993 (Administrative Record No. OH-

1943), Ohio provided its initial response to OSM's September 20, 1993,

comments on PA 62. Ohio requested additional time to develop the

required information and requested technical assistance from OSM in

developing that information. Ohio and OSM staff met on February 11,

1994, (Administrative Record No. OH-1988) to discuss the available

information on pond removal and erosion control.

By letter dated March 1, 1994 (Administrative Record No. OH-1994),

Ohio resubmitted Program Amendment Number 62 Revised (PA 62R) which is

intended to resolve the two requirements in OSM's September 20, 1993,

letter. Ohio submitted additional documents in support of PA 62R by

letter dated March 10, 1994 (Administrative Record No. OH-1994). In

total, PA 62R consists of new proposed revisions to two Ohio rules,

revisions to an existing Ohio Policy/Procedure Directive, and five

technical study articles intended to correlate vegetative ground cover

with runoff and soil loss. Each of these three parts of PA 62R is

discussed briefly below:

A. Rule Revisions

(1) OAC 1501:13-4-05 paragraph (E)(1)(g) and 13-4-14 paragraph

(E)(1)(f): Ohio is further revising these two paragraphs to provide

that the plan in each permit application for protection of the

hydrologic balance shall describe the measures to be taken to prevent,

to the extent possible using the best technology currently available,

additional contributions of suspended solids to streamflow, or runoff

outside the permit area. The Chief may determine that vegetation is the

best technology currently available for this prevention upon a

demonstration by the permittee that vegetation is established and that

drainage from the area meets effluent limitations and does not

contribute suspended solids to streamflow. If the applicant proposes to

make such a demonstration after vegetation is established and to remove

siltation structures sooner than two years after the last augmented

seeding of a drainage area, the applicant shall state such intentions

in the timetable and plans for removal of sediment control structures

required by paragraphs (H)(1)(b)(iv) or (H)(1)(c)(iv) of OAC 1501:13-4-

05 or OAC 1501:13-4-14.

(2) OAC 1501:13-4-05 and 13-4-14 paragraph (H)(1)(b)(iv): Ohio is

further revising these two paragraphs to provide that the detailed

design plans for impoundment structures that meet or exceed size or

other criteria of MSHA shall describe the timetable and plans to remove

each structure, if appropriate. The applicant must include a statement

of intent if the applicant proposes to demonstrate that vegetation is

the best technology currently available and proposes to remove

siltation structures sooner than two years after the last augmented

seeding of the drainage area.

(3) OAC 1501:13-4-05 and 13-4-14 paragraph (H)(1)(c)(iv): Ohio is

further revising these two paragraphs to insert the same proposed

language as quoted above for paragraph (H)(1)(b)(iv) in order that the

language also apply to the detailed design plans for impoundment

structures that do not meet the size or other criteria of MSHA.

B. Revisions to Ohio Policy/Procedure Directive

As part of and in support of PA 62R, Ohio is proposing to revise

its existing Inspection and Enforcement Policy/Procedure Directive

Number 93-4 entitled ``Removal of Siltation Structures and Termination

of NPDES Monitoring.'' The proposed revisions to the Policy/Procedure

Directive concern the content of revised OAC 1501:13-9-04 paragraph

(G)(2)(e), the requirements for timing of augmented seeding, the

methods to be used to evaluate success of ground cover, and the use of

the form for requesting removal of siltation structures.

C. Supporting Study Articles

As part of and in support of PA 62R, Ohio has also submitted five

technical study articles intended to correlate vegetative ground cover

with runoff and soil loss:

(1) Hofmann, L., R.E. Ries, and J.E. Gilley. ``Relationship of

Runoff and Soil Loss to Ground Cover of Native and Reclaimed Grazing

Land.'' Agronomy Journal, Vol. 75, July-August 1983, P. 599-602.

(2) Hofmann, L. and R.E. Ries. ``Relationship of soil and plant

characteristics to erosion and runoff on pasture and range.'' Journal

of Soil and Water Conservation, Vol 46, Number 2, March-April 1991, p.

143-147.

(3) Ries, R.E. and L. Hofmann. ``Relationship of Ground Cover of

Short and Midgrass Communities to Soil Loss.'' North Dakota Farm

Research, Vol. 44, Number 2, September-October 1986, p. 29-31.

(4) USDA, Agricultural Research Service and The Ohio State

University, Ohio Agricultural Research and Development Center. ``Final

Report: Research on the Hydrology and Water Quality of Watersheds

Subjected to Surface Mining.'' USDI, Bureau of Mines Contract Report

Nos. J0166054 and J0166055, January 1984, 35 p.

(5) USDA, Agricultural Research Service and The Ohio State

University, Ohio Agricultural Research and Development Center.

``Postmining Results in Muskingum County, Ohio: Research on the

Hydrology and Water Quality of Watersheds Subjected to Surface

Mining.'' USDI, Bureau of Mines Contract Report Nos. J0166054 and

J0166055, April 1983, 196 p.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Ohio program

amendment to provide the public an opportunity to reconsider the

adequacy of the proposed amendment in light of the additional materials

submitted. In accordance with the provisions of 30 CFR 732.17(h), OSM

is now seeking comment on whether the amendment proposed by Ohio

satisfies the applicable program approval criteria of 30 CFR 732.15. If

the amendment is deemed adequate, it will become part of the Ohio

program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Columbus Field Office will

not necessarily be considered in the final rulemaking or included in

the Administrative Record.

Public Hearing

Persons wishing to comment at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. on April

6, 1994. The location and time of the hearing will be arranged with

those persons requesting the hearing. If no one requests an opportunity

to testify at the public hearing, 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 responses and appropriate questions.

The public hearing will continue on the specified date until all

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

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

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

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

comment have been heard.

Public Meeting

If only one person requests an opportunity to comment at a hearing,

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

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings shall be open to the

public and, if possible, notices of the 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 proposed/final rule is exempted from review by the Office of

Management and Budget under Executive Order 12866.

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 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 the Office of Management and Budget 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.

List of Subjects in 30 CFR Part 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 23, 1994.

Robert J. Biggi,

Acting Assistant Director, Eastern Support Center.

[FR. Doc. 94-7499 Filed 3-29-94; 8:45 am]

BILLING CODE 4310-05-M