[Federal Register Volume 59, Number 143 (Wednesday, July 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18201]


[[Page Unknown]]

[Federal Register: July 27, 1994]


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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
 

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 proposed Program Amendment Number 67 to the 
Ohio permanent regulatory program (hereinafter referred to as the Ohio 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). The amendment was initiated by Ohio and is intended to make 
the Ohio program as effective as the corresponding Federal regulations 
concerning postmining land uses. Specifically, the amendment proposes 
to clearly identify postmining land use categories, to clarify the 
comparison of premining and postmining land uses, to clarify that 
``undeveloped land'' may be the designated postmining land use only if 
the premining land use is undeveloped land, to clarify that 
``forestland'' and ``fish and wildlife habitat'' are distinct 
postmining land uses, and to eliminate redundant provisions more 
stringent than the Federal regulations for notice and approval of 
alternative postmining land uses by other reviewing agencies and for 
the design of postmining land use plans by an engineer.

EFFECTIVE DATE: July 27, 1994.

FOR FURTHER INFORMATION CONTACT:
Richard J. Seibel, Director, Columbus Field Office, Office of Surface 
Mining Reclamation and Enforcement, 4480 Refugee Road, Suite 201, 
Columbus, Ohio 43232. Telephone: (614) 866-0578.

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 the conditions of 
approval and program amendments are identified at 30 CFR 935.11, 
935.12, 935.15, and 935.16.

II. Submission of the Proposed Amendment

    By letter dated May 17, 1994 (Administrative Record No. OH-2017), 
the Ohio Department of Natural Resources, Division of Reclamation 
(Ohio), submitted proposed Program Amendment Number 67. In this 
amendment, Ohio proposed to revise one rule at Ohio Administrative Code 
(OAC) 1501:13-9-17 to make the Ohio program as effective as 
corresponding Federal regulations concerning postmining land uses. OSM 
announced receipt of proposed Program Amendment Number 67 in the May 
26, 1994, Federal Register (59 FR 27255), and, in the same notice, 
opened the public comment period and provided an opportunity for a 
public hearing on the adequacy of the proposed amendment. The public 
comment period closed on June 27, 1994.

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 amendment to the Ohio program. Revisions not specifically 
addressed below concern nonsubstantive wording changes, or revised 
cross-references and paragraph notations to reflect organizational 
changes resulting from this amendment.
    1. OAC 1501:13-9-17(C) (1) through (11), Postmining land use 
categories. Ohio is revising paragraphs (C) (1) through (11) to clarify 
the titles of the eleven approved postmining land use categories. Since 
these are nonsubstantive changes, the Director finds that the revised 
State rules are no less effective than their Federal counterparts at 30 
CFR 701.5.
    2. OAC 1501:13-9-17(B)(1), Mining prior to April 10, 1972. Ohio is 
revising paragraph (B)(1) to clarify that the postmining land use for 
land that was mined pursuant to a license issued prior to April 10, 
1972, shall be judged on the basis of the highest and best use that can 
be achieved which is compatible with surrounding areas and does not 
require the disturbance of areas previously unaffected by mining. The 
State's proposed language is consistent with the counterpart Federal 
regulations at 30 CFR 816/817/133(b). The Director, therefore, finds 
that the revised State rule is no less effective than its Federal 
counterpart.
    3. OAC 1501:13-9-17(B)(2), Comparison of postmining and premining 
land uses. Ohio is deleting the existing requirement in paragraph 
(B)(2) that, if the premining land use was changed within five years of 
the beginning of mining, the postmining land use shall be compared to 
the historic use of the land as well as its use immediately before 
mining. There are no Federal counterparts at 30 CFR 816/817.133. 
However, the State rule at 1501:13-4-04(I)(1)(a) requires information 
on historical land use in permit applications if the land use changed 
within five years before mining. This corresponds to the Federal 
regulations at 30 CFR 780.23(a)(1) and 784.15(a)(1). Since the State 
rule at OAC 1501:13-9-17(B) states that ``[t]he premining uses of land 
to which the postmining land uses are compared shall be those which the 
land previously supported * * *'' this would include historical land 
uses if the land use changed within five years before mining. 
Therefore, the Director finds that the deletion of former paragraph 
(B)(2) will not render the Ohio program less effective than the Federal 
regulations.
    4. OAC 1501:13-9-17(B)(2), Undeveloped land use. Ohio is adding a 
new requirement in paragraph (B)(2) that land may be returned to the 
undeveloped postmining land use category only if the land was 
categorized as undeveloped prior to mining. Ohio's proposed rule 
clarifies that undeveloped land may be the designated postmining land 
use only if the premining land use is undeveloped land. The Director 
finds that the proposed rule is not inconsistent with and is no less 
effective than the Federal regulations at 30 CFR 816/817.133(b) and 30 
CFR 701.5.
    5. OAC 1501:13-9-17(C), Undeveloped land use. Ohio is revising 
paragraph (C) to require that all proposed changes of land use, 
including changes from undeveloped land to forestland or fish and 
wildlife habitat, shall be considered an alternative land use change 
subject to approval by the Chief of the Ohio Department of Natural 
Resources, Division of Reclamation (the Chief). The Director finds that 
Ohio's proposed rule is not inconsistent with and is not less effective 
than the Federal regulations at 30 CFR 816/817.133 and the Federal 
definition of ``land use'' at 30 CFR 701.5.
    6. OAC 1501:13-9-17(D)(8), Undeveloped land use. Ohio is deleting 
the existing requirement in paragraph (D)(8) that plans to change the 
postmining land use to undeveloped land from some other land use 
category must treat the land as if the postmining land use were in the 
forestland/fish and wildlife habitat category. The proposed deletion of 
this paragraph is consistent with revised paragraphs (B)(2) and (C) 
which clarify that undeveloped land may be the designated postmining 
land use only if the premining land use is undeveloped land. Therefore, 
the Director finds that the proposed deletion of paragraph (D)(8) will 
not render the Ohio rule less effective than the Federal regulations.
    7. OAC 1501:13-9-17(C) (9) and (10), Forestland and Fish and 
Wildlife Habitat. Ohio is revising paragraphs (C)(9) and (C)(10) to 
clarify that ``forestland'' and ``fish and wildlife habitat'' are 
distinct postmining land uses. The ``forest'' category includes land 
used for commercial or noncommercial production of wood or wood 
products. The Director finds that the revised rules are no less 
effective than the Federal regulations at 30 CFR 816/817.133 and the 
corresponding Federal definitions at 30 CFR 701.5.
    8. OAC 1501:13-9-17(D)(1), Agency review of postmining land uses. 
Ohio is deleting the existing requirement in paragraph (D)(1) that 
requests for alternative postmining land use must contain a written 
statement of views from the authorities having statutory 
responsibilities for land use policies and plans. Ohio is also deleting 
the requirement in paragraph (D)(1) that the operator must obtain any 
required approval of the final land use from local, State, or Federal 
land management agencies, including any necessary zoning or other 
required changes. The counterpart Federal regulations at 30 CFR 816/
817.133(c) impose no similar requirements. Therefore, the Director 
finds that the deletion of these requirements will not render the Ohio 
program less effective than the Federal regulations.
    9. OAC 1501:13-9-17(D)(6), Agency review of postmining land uses. 
Ohio is revising paragraph (D)(6) to clarify that, for approval by the 
Chief, proposed alternative postmining land uses must identify measures 
to prevent or mitigate adverse effects on fish and wild not render the 
Ohio program less effective than the Federal regulations.
    9. OAC 1501:13-9-17(D)(6), Agency review of postmining land uses. 
Ohio is revising paragraph (D)(6) to clarify that, for approval by the 
Chief, proposed alternative postmining land uses must identify measures 
to prevent or mitigate adverse effects on fish and wildlife and on 
threatened or endangered plants or animals or their critical habitats 
and must demonstrate that an opportunity to comment has been provided 
in accordance with OAC section 1501:13-9-11 to appropriate State and 
Federal fish and wildlife management agencies. There are no Federal 
counterparts at 30-CFR 816/817.133. Therefore, the Director finds that 
the revisions do not render the Ohio program less effective than the 
Federal regulations.
    10. OAC 1501:13-9-17(D)(9), Agency review of postmining land use. 
Ohio is deleting the existing requirement in paragraph (D)(9) that 
alternative postmining land use plans must demonstrate that the 
operator has provided written notice of the proposed land use to 
appropriate State and Federal agencies with instructions for those 
agencies to provide any comments on the proposed land use to the Chief. 
The Federal requirements at 30 CFR 816/817.133 do not impose a similar 
requirement. Therefore, the Director finds that the deletion of this 
requirement will not render the Ohio program less effective than the 
Federal regulations.
    11. OAC 1501:13-9-17(D)(2), Design of postmining land use plans by 
an engineer. Ohio is deleting the existing requirement at paragraph 
(D)(2) that postmining land use plans must be designed under the 
general supervision of a registered engineer or other appropriate 
professional. There are no similar Federal requirements at 30 CFR 816/
817.133. The Director, therefore, finds that the deletion of paragraph 
(D)(2) will not render the Ohio program less effective that the Federal 
regulations.

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. No public comments were 
received, and because no one requested an opportunity to testify at a 
public hearing, no hearing was held.

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 U.S. Department of Agriculture, Soil Conservation Service, 
stated that it does not recommend that any forestland be grazed as 
indicated in paragraph (C)(3) of OAC 1501:13-9-17. The only change 
proposed by Ohio at paragraph (C)(3) was to clarify the title of the 
approved postmining land use. Therefore, the Director will not address 
this comment.
    No other comments were received.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the EPA with respect to any provisions of a 
State program amendment that relate to air or water quality standards 
promulgated under the authority of the Clean Air Act (42 U.S.C. 7401 et 
seq.) or the Clean Water Act (33 U.S.C. 1251 et seq.). None of the 
revisions that Ohio proposed to make in this amendment pertain to air 
or water quality standards. Therefore, OSM did not request EPA's 
concurrence.
    Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (Administrative Record No. OH-1993). The 
EPA responded on June 20, 1994 (Administrative Record No. OH-2030), 
that it reviewed the proposed amendment but had no comments.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
program amendment as submitted by Ohio on May 17, 1994.
    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 
conform their programs with the Federal standards without undue delay. 
Consistency of State and Federal standards is required by SMCRA.

VI. Procedural Determinations

Executive Order No. 12866

    This final rule is exempted from review by the Office of Management 
and Budget under Executive Order 12866 (Management Planning and 
Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 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 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 
which require approval by the Office of Management and Budget under 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. Hence, 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.

List of Subjects in 30 CFR Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 20, 1994.
Patricia P. Acker,
Acting Assistant Director, Eastern Support 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 by adding paragraph (rrr) to read as 
follows:


Sec. 935.15  Approval of regulatory program amendment.

* * * * *
    (rrr) The following rules, as submitted to OSM on May 17, 1994, are 
approved effective July 27, 1994: Program Amendment Number 67 which 
consists of revisions to the Ohio Administrative Code (OAC) at 1501:13-
9-17 concerning postmining use of land.

[FR Doc. 94-18201 Filed 7-26-94; 8:45 am]
BILLING CODE 4310-05-M