[Federal Register Volume 59, Number 169 (Thursday, September 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21583]


[[Page Unknown]]

[Federal Register: September 1, 1994]


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DEPARTMENT OF THE INTERIOR
30 CFR Part 935

 

Ohio Regulatory Program

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

ACTION: Final rule; partial approval and deferral of amendment.

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SUMMARY: OSM is approving in part and deferring in part proposed 
Program Amendment Number 63 to the Ohio permanent regulatory and 
Abandoned Mined Land reclamation programs (hereinafter referred to as 
the Ohio programs) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The amendment was initiated by Ohio and is intended to 
reduce and reorganize the staffing of the Ohio programs in response to 
recent drops in Ohio coal production. The amendment would abolish 28 
Ohio staff positions and would reorganize the remaining staff positions 
to assume the existing job duties. Program Amendment Number 63 does not 
propose any revisions to Ohio's coal mining law or rules.

EFFECTIVE DATE: September 1, 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 March 15, 1993 (Administration Record No. OH-1845), 
the Ohio Department of Natural Resources, Division of Reclamation 
(Ohio), submitted proposed Program Amendment Number 63 (PA 63). In that 
submission, Ohio proposed to reduce the staff of the Ohio programs by 
abolishing 28 existing positions. Ohio also proposed to reorganize the 
remaining staff positions to assume the existing job duties.
    PA 63 included seven attachments intended to describe Ohio's 
proposal for the staffing reduction and reorganization and to provide 
the rationale for those actions. The amendment contained no proposed 
revisions to Ohio's coal mining law in the Ohio Revised Code or coal 
mining rules in the Ohio Administrative Code. The seven attachments are 
summarized briefly below:
    (1) December 29, 1992, Proposed reorganization of the Ohio 
Department of Natural Resources, Division of Reclamation. This document 
describes a 14-percent drop in Ohio coal production between 1987 and 
1992 and describes the resultant 20-percent drop in the number of 
active Ohio mining permits, 57-percent drop in the number of permit 
applications processed, and 18-percent drop in the number of required 
mine inspections. The document also describes corresponding reductions 
in incoming revenues to the Ohio programs from mine permit fees, coal 
severance taxes, and Abandoned Mine Land (AML) grants.
    To offset these reductions in workload and funding, Ohio proposed a 
four-part reorganization of its permanent regulatory and AML programs:

    (a) Decentralization of the bond forfeiture program;
    (b) Streamlining of engineering design work for Federally funded 
AML reclamation projects;
    (c) Abolishment of 22 positions, including two construction 
project specialists, two project engineers, one environmental 
engineer, one project engineer intern, two design specialists, one 
geologist, two environmental specialists, four reclamation 
inspectors, five environmental technicians, one natural resource 
administrator, one computer operator; and
    (d) Creation of a Computer Services Section.

    (2) January 21, 1993, Addendum to the proposed reorganization. This 
document describes and explains six additional positions to be 
abolished as part of the reorganization of the Ohio programs:
    One environmental specialist, two reclamation inspectors, two word 
processing specialists, and one account clerk.
    (3) Updated tables of organization pursuant to the reorganization.
    (4) Tables of organization prior to the reoganization.
    (5) Position descriptions of 28 positions to be abolished.
    (6) Position description of 30 positions which will assume the 
duties of the abolished positions; and
    (7) Position descriptions of 51 positions retained pursuant to the 
reorganization.
    OSM announced receipt of the proposed amendment in the April 8, 
1993, Federal Register  (58 FR 18185), and in the same document 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 May 10, 1993.
    OSM and Ohio staff met on May 20, 1993, to discuss OSM's 
preliminary concerns and questions about PA 63. By letter dated June 
16, 1993 (Administrative Record No. OH-1890), Ohio submitted additional 
information in response to those OSM concerns and questions. Through an 
oversight, OSM did not reopen the public comment period at that time.
    Subsequently, by letter dated November 2, 1993 (Administrative 
Record No. OH-1948), OSM formally provided Ohio with its questions and 
comments on the March 15 and June 16, 1993, submissions of PA 63. OSM's 
questions and comments were listed under the following six headings: 
Streamlining of AML Designs; Engineering: Bond Forfeitures; 
Engineering: Inspection and Enforcement Issues; Position Descriptions; 
Bond Forfeiture Program; and SOAP.
    By letter dated December 6, 1993 (Administrative Record No. OH-
1971), Ohio provided its responses to OSM's November 2, 1993, questions 
and comments. In addition, Ohio included three attachments. The first 
attachment was a November 5, 1993, letter to OSM explaining 
organizational responsibilities within Ohio's engineering/geotechnical 
support group and AML program. The second attachment was a log of 
engineering inspection and enforcement activity. The third attachment 
was an example of the revised position description for Ohio's 
reclamation inspectors, dated April 5, 1993. In its December 6, 1993, 
Administrative Record information, Ohio noted that additional position 
descriptions for Ohio's engineering management staff were being revised 
but did not attach copies.
    OSM announced receipt of Ohio's additional Administrative Record 
information in the January 21, 1994, Federal Register  (59 FR 3325), 
and, in the same document 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 February 7, 1994.
    During its review of Ohio's December 6, 1993, response and 
attachments, OSM identified two concerns regarding engineering 
practices and engineering workload which OSM staff communicated to the 
State during a meeting held on April 20, 1994 (Administrative Record 
No. OH-2012). Ohio responded in a letter dated April 21, 1994 
(Administrative Record No. OH-2014) with additional information on both 
issues. OSM announced receipt of this additional information, along 
with the explanatory information submitted by Ohio on June 16, 1993, 
and reopened the comment period for PA 63 in the June 9, 1994, Federal 
Register  (59 FR 29748). The public comment period closed on June 24, 
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 Ohio 
PA 63. Section 503(a)(3) of SMCRA requires that a State regulatory 
authority must have sufficient administrative and technical personnel, 
as well as funding, to implement its approved programs. The Director's 
findings discussed below reflect his determinations as to whether, 
under the proposed reduction and reorganization of Ohio's staff, Ohio 
is able to continue to efficiently and effectively conduct its approved 
programs.
    Ohio's justification for the reduced staffing levels is based on 
the decline, over the past five years, in the issuance of new permits, 
the number of active permits, the number of inspections and enforcement 
actions, and in overall Ohio coal production. The Director concurs that 
this decline has occurred and that this mining industry downturn has 
had direct impact on Ohio's coal regulatory and AML programs. The 
Director also concurs that Ohio's goals of reducing and streamlining 
its programs are therefore appropriate. With the exception of the 
engineering portion of the amendment which the Director is deferring, 
the Director finds, in accordance with section 503 (a)(3) of SMCRA and 
30 CFR 732.17, that the proposed amendment meets the requirements of 
SMCRA and the Federal regulations in that Ohio has demonstrated that it 
has sufficient administrative and technical personnel and funding to 
continue to implement the approved Ohio programs.
    Eleven areas of the approved Ohio programs are affected by the 
proposed staffing reduction and reorganization. The Director's findings 
in each area are discussed below.

A. Administration Section

    Ohio's Administration Section includes the Fiscal and 
Administrative Service Section, Human Resources Section, Computer and 
Information Services Section, Special Programs Section, and the Office 
of the Chief of the Division of Reclamation, Ohio Department of Natural 
Resources (the Chief). These sections provide guidance on program 
policy and procedures, address personnel issues, provide training, 
develop new programs and initiatives, propose legislation and rules, as 
needed, and provide information to the industry and public on Ohio's 
activities. The Special Programs Section handles remining initiatives 
and emergency AML reclamation as well as program policy and research.
1. Office of the Chief
    Ohio is proposing to abolish one natural resources administrator 
who is responsible for statewide policy and coal issues in the Chief's 
office. The duties of the abolished position will be absorbed by four 
technical positions in the Special Programs Section and by the Chief's 
secretary. Ohio indicates that these technical positions can more 
efficiently review special issues and problems, as well as develop and 
implement policies resulting from those reviews.
2. Fiscal and Administrative Services Section
    The Fiscal and Administrative Services Section processes all grant 
applications, invoices, equipment purchasing, and contracts and 
administers budget preparation. Ohio maintains that, through improved 
accounting software and the implementation of a central accounting 
system and because of a decrease in fiscal workload from the downturn 
in the coal mining industry, this section has had less need for all of 
the accounting staff and clerical support for its daily operations.
    Therefore, Ohio is proposing to abolish one account clerk position 
and one word processing specialist position. The duties of the account 
clerk will be assumed by four remaining account clerks in the Fiscal 
and Bonding Sections. The duties of the word processing specialist will 
be assumed by a secretary and two word processing specialists in the 
AML, Bonding, and Administrative Sections.
3. Computer and Information Services Section
    In an effort to consolidate its computer management, Ohio is 
creating a Computer and Information Services Section. This 
consolidation is part of an ongoing effort to standardize computer 
purchasing, utilization, and maintenance. Ohio indicated in its 
submission that these consolidated computer systems will allow the 
State to manage its mining and reclamation information more efficiently 
thereby responding to inquiries more quickly and accurately. To this 
end, software packages ranging from word processing to computer-aided 
design are assisting Ohio personnel in storing, manipulating, and 
reporting this information. The Computer and Information Services 
Section will consist of a section supervisor and management analyst 
transferred from the Special Studies Section of the AML Section and a 
new program specialist position. Ohio is proposing to abolish one 
computer operator position in the Special Studies Section. This 
position was solely responsible for entering data into and consulting 
with the National Applicant Violator System (AVS). As the major user, 
the Permitting Section will now be responsible for the AVS. The duties 
of the abolished position will be performed by two word processing 
specialists in the Permitting Section.
    Administration section findings. The Director finds that the 
updated information systems, including the networking of computers an 
the decrease in workload, will allow Ohio to operate more efficiently 
so that the proposed staff reduction and reorganization in the 
Administration Section will not render the Ohio program unable to 
regulate surface coal mining and reclamation operations or to conduct 
AML reclamation in accordance with the requirements of SMCRA.

 B. Permitting

    The Permitting Section is responsible for the review of all permit 
applications for surface and underground coal mining operations. This 
section also reviews all proposals to modify or revise a permit, to 
transfer ownership, or to extend or renew permits. In addition, this 
section conducts public hearings on proposed mining operations and 
evaluates petitions for areas to be declared unsuitable for mining.
    The number of incidental boundary revisions (IBR), adjacent area 
permits, and permit applications in Ohio has steadily decreased between 
1987 and 1992. The majority of the permitting staff workload is in 
these three areas. Between 1987 and 1992, there has been a 62-percent 
decrease in the number of IBR's, a 37-percent decrease in the number of 
adjacent area permits, and a 67-percent decrease in the number of 
permit applications processed. The number of applications to revise a 
permit (ARP's) has also decreased from a high of 894 in 1989 to 706 in 
1992 (Administrative Record No. OH-2048).
    As a result of this decline in the number of permitting actions, 
Ohio stated that it has more staff than is needed to process the number 
of permit-related applications received. Ohio is, therefore, proposing 
to abolish one geologist and two environmental specialist positions and 
to transfer one geologist to the Industrial Minerals Program. The 
duties of the abolished geologist position will be absorbed by two 
remaining geologists. The duties of one environmental specialist will 
be taken over by four remaining environmental specialists. The duties 
of the second environmental specialist will be absorbed by two 
remaining environmental specialists and by Ohio's 24 reclamation 
inspectors.
    Permitting section findings. With the overall decline in permit-
related applications, the Director finds that Ohio's proposal to 
eliminate three permitting positions is reasonable and is not expected 
to reduce the quality or the timeliness of the permitting staff's 
review of permits, which includes new permits, incidental boundary 
revisions, permit revisions, and modifications. This decrease in 
staffing will not diminish Ohio's ability to conduct hearings on 
proposed permits or to evaluate petitions requesting that an area be 
declared unsuitable for mining.

C. Inspection and Enforcement Section

    The Inspection and Enforcement Section is responsible for the 
inspection of all coal mining operations in Ohio and for enforcement of 
the Ohio Coal Mining and Reclamation Law in Chapter 1513 of the Ohio 
Revised Code. This section also collects, monitors, and releases all 
reclamation performance bonds, conducts hearings and conferences, and 
investigates complaints from the public.
    Over the last five calendar years, the number of active mining 
permits in Ohio has declined by 20 percent for 1,094 to 880. During 
this period, the number of mine site inspections per year by Ohio staff 
has declined by 18 percent from 10,266 to 8,500. Because of these 
declines, Ohio is proposing to eliminate six of its 30 reclamation 
inspector positions and all five environmental technician positions, 
leaving 24 reclamation inspectors to perform the work with the 
assistance of five clerk/secretary positions.
    In its Evaluation Year 1993 report on the Ohio program 
(Administrative Record No. OH-2045), OSM reported recent evaluation 
year totals for the number of surface, underground, and mine facility 
permits (``inspectable units'') in Ohio. In Evaluation Years 1991 and 
1992 (before Ohio's staff reorganization), Ohio had a total of 906 and 
900 inspectable units, respectively. These figures yield an average of 
30 inspectable units per Ohio inspector for those evaluation years.
    At the end of Evaluation Year 1993 (after Ohio's staff 
reorganization), the number of inspectable units had fallen to 858. 
Dividing this inspection workload across Ohio's 24 remaining 
inspectors, Ohio's proposed staff reorganization would result in an 
average of 36 inspectable units per inspector. In comparison to other 
States, Ohio, at 36, would remain second behind West Virginia with 37 
inspectable units per inspector (Administrative Record No. OH-2046). 
The next highest States are Pennsylvania with 27 and Maryland with 26. 
In addition, many Ohio permits are close to Phase III bond release 
which will continue the decline in the number of inspectable units in 
Ohio. Ohio and OSM do not anticipate an increase in the number of 
permit-related applications in the foreseeable future.
    As discussed in Section F, Ohio is also proposing to increase the 
bond forfeiture reclamation responsibilities of its inspection staff. 
This action will result in some added workload for the inspectors to 
address reclamation of forfeited sites. However, these sites are 
already part of the inspectable unit inventory and should not impose a 
significant additional workload considering that all enforcement 
actions should have been taken and the sites should be proceeding to 
final reclamation in a short time. In addition, because of the 
inspection staff's detailed knowledge and familiarity with these sites, 
shifting the bond forfeiture responsibility to the Inspection and 
Enforcement Section will not affect the efficiency and speed at which 
these permits are reclaimed. The five-year liability period will not 
apply to reclaimed forfeiture sites thereby lessening the length of 
time the site will have to be inspected.
    Inspection and enforcement section findings. The Director finds 
that the duties of the environmental technician positions, which are 
administrative in nature, will be easily assumed by the remaining 
staff. The Director finds that the State has shown that an increase of 
six inspectable units per inspector and the addition of reclamation 
forfeiture responsibilities should not have a negative impact on the 
Ohio program. In its Evaluation Year 1993 report, OSM found no 
unresolved deficiencies in Ohio's inspection frequency (Administrative 
Record No. OH-2045). The Director anticipates that Ohio will continue 
to meet the required inspection frequency with the remaining staff of 
24 reclamation inspectors and with support assistance from five clerk/
secretary positions.

D. Civil Penalty Assessment Section

    Part of the responsibility of the Inspection and Enforcement 
Section is to initiate enforcement actions for violations of the law 
and to assess civil penalties (``assessment actions''). Assessment 
actions are the result of the issuance of Notices of Violations (NOV's) 
and Cessation Orders (CO's). The number of assessment actions is not 
proportionate to the number of enforcement actions because there are 
more assessment actions taken than there are enforcement actions since 
one enforcement action may result in more than one assessment action. 
For example, for two enforcement actions issued, as many as eleven 
assessment actions could result. Typically, only one enforcement action 
is taken for a nonremedial violation or a penalty amount of $500.00 or 
less and two enforcement actions are taken if the violation requires 
remedial action. Two environmental specialists called ``assessment 
officers'' have been responsible for reviewing these violations, 
determining whether a civil penalty will be assessed, and conducting 
informal conference hearings.
    Ohio is proposing to abolish one assessment officer position. Ohio 
has documented that the number of assessments has declined. Through 
normal oversight, OSM reviewed Ohio's monthly inspection and 
enforcement reports for the years 1989 through 1992 (Administrative 
Records No. OH-2048). Ohio issued a total of 1,369 NOV's and CO's in 
1989 compared with only 596 in 1992, a decline of 56 percent. In 1989 
there were 2,436 assessment actions compared to only 524 in 1992. The 
number of assessment conferences decreased by 43 percent from 163 in 
1989 to 92 in 1992. There were 20 show cause hearings each year in 
1989, 1991, and 1992 and 21 hearings in 1990. Likewise the figures for 
bond release hearings remained fairly constant from 1990 through 1992 
(11 each in 1991 and 1992, 15 in 1990).
    Civil penalty assessment section findings. The Director finds that 
the decline in the number of Ohio enforcement actions and assessment 
conferences is adequate justification for the elimination of one 
position. The decreased workload of approximately 50 percent justifies 
a 50-percent decrease in the number of positions performing these 
functions. The Director finds that, with the reduction of the civil 
penalty staff, Ohio will continue to be able to review all violations 
for assessment and to assess penalties using the proper criteria and 
procedures.

E. Technical Section

    The Technical Section is responsible for investigating citizen 
complaints concerning blasting activities and mining impacts upon water 
supplies. The Technical Section also conducts the Ohio Blaster 
Certification Program and processes citizen requests for preblast 
surveys. Ohio states that the decline in the mining industry has 
resulted in less blasting and, therefore, fewer complaints. Ohio cited 
that the number of complaints in FY 1992 was 57, down from 86 in FY 
1991. The number of blasting plans to be reviewed decreased from 119 in 
FY 1991 to 81 in FY 1992, and the number of preblast surveys conducted 
declined from 447 to 324.
    Citing the reduction in the amount of work for the Technical 
Section to handle, Ohio is proposing to abolish one of two word 
processing specialists. The duties of this position will be assumed by 
the remaining word processing specialist.
    Summary technical section findings. The Director finds that Ohio's 
documentation of a decline in blasting activities and its related 
reviews and surveys is adequate to support its decision to abolish one 
word processing specialist position in the Technical Section. The 
Director finds that the remaining word processing specialist will be 
capable of performing his/her duties in a timely fashion.

F. Abandoned Mined Land Reclamation Program

    The Abandoned Mined Land (AML) reclamation program is responsible 
for reclaiming mined lands which have been abandoned and for which 
there is no responsible mine operator and for reclaiming permitted 
areas which have been forfeited. AML projects are funded by both State 
and Federal AML funds, and the forfeitures are reclaimed with forfeited 
performance bond funds augmented by mineral severance tax money.
    Forfeiture section reorganization. The Forfeiture Section reviews 
the permit sites, develops reclamation plans, and designs and inspects 
the reclamation of the permit. The Inspection and Enforcement Section 
is responsible for processing the permit forfeiture and assuring that 
the requirements of the Ohio Revised Code Chapter 1513 are met. It is 
Ohio's intent to return the forfeiture reclamation duties to the 
Inspection and Enforcement Section where the reclamation inspection 
staff would be responsible for assuring that forfeited permits are 
reclaimed. Since the inspectors are already geographically located in 
the field, the management of the bond forfeiture projects will be more 
efficient. Also, the AML Section will continue to provide contracting 
and monitoring assistance to the Inspection and Enforcement Section. 
Because of this reorganization, Ohio is proposing to abolish three 
positions, i.e., two construction project specialists and one project 
engineer. Ohio's 24 reclamation inspectors will take over the 
responsibilities of the two construction project specialists.
    Forfeiture section findings. Since the duties of the Forfeiture 
Section are being delegated elsewhere, the Director finds that the 
proposed reorganization and the proposed abolishment of the two 
construction project specialists will not adversely impact Ohio's 
forfeiture reclamation program. The Director's Finding on the 
abolishment of the project engineer position is discussed below in 
Section G.3.

G. Reorganization of Engineering Staff

1. Inspection and Enforcement: Regulatory Engineering
    Ohio has stated that the decrease in the number of active mine 
permits over the last five years has also meant a corresponding 
decrease in engineering workload in the Inspection and Enforcement 
Section. This engineering workload includes reviews of mine plans, pond 
designs, and general engineering assistance to inspectors. As a result 
of this workload decrease, Ohio proposed in the March 15, June 16, and 
December 6, 1993, submissions of PA 63 to abolish one Project Engineer 
position and one Environmental Engineer position.
    In an April 21, 1994, letter to OSM (Administrative Record No. OH-
2014), Ohio has indicated that its reorganization of engineering 
resources is still underway. The changes to its engineering staff 
proposed by Ohio in the 1993 submissions of PA 63 no longer accurately 
reflect Ohio's proposed engineering structure. Ohio is still analyzing 
the workload and functions of the engineering staff (Administrative 
Record No. OH-2038).
    Therefore, Ohio has stated that it will resubmit the engineering 
portion of the amendment to OSM on a future date.
    Since Ohio is still reorganizing its engineering staff, the 
Director is deferring his decision on this portion of PA 63 until after 
Ohio has completed the reorganization and resubmitted the final staff 
configuration to OSM (Administrative Record No. OH-2038).
2. Federal AML Project Engineering
    The Federal AML Section is responsible for reclaiming mined lands 
which were abandoned prior to August 3, 1977, and which are causing 
danger to the public's health and safety. The section is responsible 
for project selection, development, design, and construction 
monitoring. Because of decreases in the amount of design work performed 
by the section over the last five years, Ohio has proposed to abolish 
two design specialist positions and one project engineering intern 
position within the section.
    As discussed above, Ohio has indicated that its reorganization of 
engineering resources is still underway. Therefore, the Director is 
deferring his decision on this portion of PA 63 until after Ohio has 
completed the reorganization and resubmitted the final staff 
configuration to OSM.
3. Bond Forfeiture Engineering
    As discussed above in Section F, Ohio is proposing to abolish one 
project engineer position in the forfeiture section of the AML 
reclamation program. Because Ohio is still reorganizing its engineering 
structure, the Director is deferring his decision on this portion of PA 
63.

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. One commenter requested 
a public hearing, but that request was later withdrawn and so no 
hearing was held.
    The Ohio Civil Service Employees Association (OCSEA) submitted 
substantive comments which are discussed below.
    1. OCSEA requested a regulatory impact analysis and regulatory 
review of PA 63. OSM has a program-wide exemption for program 
amendments from these two types of reviews. OSM's own amendment review 
process adequately considers impacts of program amendments on 
regulatory programs. Under Executive Order No. 12866, PA 63 is not 
subject to review by the Office of Management and Budget because it is 
not a significant regulatory action. With regard to the regulatory 
impact analysis, OSM has determined that PA 63 will not have a 
significant economic impact on a substantial number of small entities.
    2. OCSEA noted that some of the position descriptions in the 
amendment are out of date. The Director acknowledges this fact. 
However, Ohio's inclusion of these position descriptions was intended 
to give OSM general information about Ohio staff capability. The 
Director believes that OSM can review this overall capability without 
requiring Ohio to update all position descriptions as of the date of 
the amendment submission.
    3. OCSEA commented that staffing reductions must be based on 
workload and not on income to the Ohio programs or on statewide coal 
production alone. The Director agrees with this comment. Consequently, 
the Director has not based his review of the staffing reductions and 
reorganizations on projected income or funding to the Ohio program nor 
simply on coal production figures. The Director's review has considered 
Ohio's ability to meet the requirements of its approved program. The 
abolishment of existing positions must be explained and justified by an 
absence of work for those positions. That absence of work can be 
created either by a decrease in Ohio's overall workload or an increase 
in the efficiency of the Ohio program in accomplishing that work. The 
Director does not agree with the comment that Ohio has failed to prove 
its ability to perform its inspection duties pursuant to Ohio 
Administrative Code section 1501:13-14-01. As discussed above in 
Section C, the Director has found that Ohio's proposed average of 36 
inspectable units per inspector is within the range of averages from 
other States with approved programs. In addition, OSM has found no 
significant unresolved deficiencies in Ohio's past inspection 
performance. The proposed enforcement staff reductions are commensurate 
with the measured reduction in workload. The Director, therefore, finds 
that the Ohio program meets the inspection and enforcement requirements 
of its program.
    4. OCSEA noted that Ohio has implemented the amendment prior to OSM 
approval. The Director agrees with the commenter that Ohio should have 
submitted the proposed amendment to OSM with sufficient time for OSM to 
act on the amendment prior to its implementation. OSM will discuss this 
aspect of PA 63 in its annual oversight evaluation report on the Ohio 
program. OSM will also work with Ohio to prevent the recurrence of 
delayed amendment submission. However, Ohio's delayed submission of the 
amendment does not negate the amendment. OSM must still review and 
issue a decision on the amendment.
    5. OCSEA provided several comments on engineering workload and 
reassignment of engineering resources. As discussed above, the Director 
is deferring his decision on the engineering portion of PA 63 until 
Ohio has concluded its reorganization. The Director will respond to the 
commenter's remarks on engineering issues in the final rule on the 
deferred engineering portion of PA 63.
    6. OCSEA commented that Ohio has not addressed impacts of PA 63 on 
the OSM-Ohio Cooperative Agreement. The Director disagrees. The 
information in PA 63, including the information on inspectable units, 
covers Federal lands which are in Ohio's jurisdiction for surface 
mining activities. Therefore, the impact on Federal lands has been 
addressed by Ohio. The Director has determined that, excluding the 
deferred issues, the proposed changes to Ohio's staffing do not make 
the Ohio program incapable of meeting the requirements of its approved 
program. No revisions to the OSM-Ohio Cooperative Agreement are 
therefore necessary.
    7. OCSEA identified a variety of unresolved program issues raised 
in past OSM oversight reports on the Ohio program. These unresolved 
issues concerned required enforcement actions, alternative enforcement, 
alternative bonding systems, AVS checks and permit blocking, 
exploration operations and notices of intent to explore, and extensions 
and abatement actions. The Director concurs that recent annual 
oversight reports have indicated some unresolved issues with the Ohio 
program. However, the Director finds that the causes of these 
unresolved issues are not related to staff shortage. The Director, 
therefore, finds that approval of PA 63 will not exacerbate unresolved 
issues which OSM is now addressing through normal program oversight. 
The Director does not agree with the commenter that recall of the 
abolished positions is essential to accomplish adequate program 
enforcement of Ohio's mining law since the Director has concluded that 
even with the staff reductions, Ohio will be able to implement, 
administer, and enforce its approved program.
    8. OCSEA noted several program areas which it believes are 
interrelated with or will be impacted by PA 63. These areas include:

--AML's Waste Tire Disposal. Ohio has not submitted this initiative 
to OSM as an amendment. Therefore, it is premature to discuss this 
initiative at this time.
--Inspection frequency. Inspection frequency is discussed in 
Director's Finding C.
--Added inspection responsibilities from the decentralization of 
bond forfeitures. These added inspection responsibilities are 
discussed in Director's Finding F.
--Ohio's ability to complete all bond forfeitures in a timely 
manner. This issue is not related to staff shortage. Ohio's ability 
to implement, administer, and enforce its program is discussed by 
the Director in comment No. 7 above.
--Adequate public service and costs of moving and relocation. OCSEA 
has acknowledged that these are not current problems.
--Increases in management staff. OSM does not have information to 
confirm OCSEA's allegation. As long as Ohio has adequate staff to 
support its program, Ohio has the flexibility to increase its 
management staff.

    OCSEA also noted that Ohio initiatives such as ``Let's See Trees,'' 
``Pro H2O,'' and ``Be Kind, Remine'' may have taken needed 
resources away from regulatory, permitting, and AML needs. Although 
Ohio's rules provide for authorization to conduct coal mining on 
previously mined areas, Ohio has not approved any remining 
applications. The Director has no reason to believe that Ohio's 
initiatives negatively impact on its program. OSM's annual reports have 
not found that diversion of program resources to these initiatives is a 
program deficiency.
    OCSEA has acknowledged that issues raised in OSM's annual report on 
the processing of exploration applications and notices of intent to 
explore were not related to staffing by its quote of Ohio's intent to 
revise and clarify existing policy. The Director agrees with OCSEA's 
characterization that these issues were not related to the reduction in 
Ohio's staff.
    9. OCSEA commented that OSM's Evaluation Year 1992 report states 
that Ohio demonstrated to OSM that no significant staff reductions were 
expected. The Director agrees with this statement and notes that at the 
time of the Evaluation Year 1992 report, Ohio did not anticipate major 
staffing changes. However, Ohio subsequently decided that reductions in 
its approved level of staffing were necessary. Under section 503(a)(3) 
a State regulatory authority can modify its approved level of staffing 
as long as it has sufficient administrative and technical personnel to 
regulate mining in accordance with the Act. The Director finds that the 
approval of PA 63 will not diminish Ohio's ability to continue to 
efficiently and effectively conduct its approved program.
    10. OCSEA commented that Ohio's staff reductions will cause 
implementation problems of OSM's REG-8 State Oversight Program. The 
Director disagrees with this comment. OSM's uses its Directives System 
to promulgate official policy and procedures to all OSM personnel. 
Specifically, REG-8 applies to all persons and OSM organizational units 
involved in oversight of State regulatory and State and Tribal 
Abandoned Mine Land Reclamation programs. Therefore, REG-8 is only 
binding on OSM and places no responsibilities on the Ohio program.
    11. OCSEA noted that the number of geologists used to review the 
hydrology portion of applications has been reduced by 50 percent. OCSEA 
has concerns with Ohio's meeting potential requirements of the Federal 
government as a result of hydrology oversight. As discussed in 
Director's Finding B, there has been a decrease in the number of 
permitting actions and an increase in the Industrial Minerals Section. 
The Director finds that the approval of PA 63 will not affect Ohio's 
ability to continue to efficiently and effectively conduct its approved 
program.
    12. OCSEA commented that OSM's Evaluation Year 1992 report 
indicated that Ohio's rate of citation of violations is a stated 
concern of OSM relative to Ohio's enforcement program. The Director 
agrees with the commenter that uncited violations continue to be a 
problem in Ohio. To address this problem, Ohio and OSM formed a joint 
team in 1993 (after Ohio's staff reorganization) to study the issue of 
uncited violations and to make recommendations in the first draft of 
the 1994 Annual Evaluation Report (Administrative Record No. OH-2047). 
The team did not find that a shortage of Ohio inspectors was a cause of 
the uncited violations. The team did recommend better time management 
by Ohio's 24 reclamation inspectors but did not find that additional 
inspectors must be hired. Therefore, the Director has concluded that 
OSM and Ohio can effectively resolve the issue of uncited violations 
under the staffing structure proposed by Ohio in PA 63.
    13. OCSEA noted that, even though the permitting statistics have 
dropped, the number of applications received is still comparable to the 
past 3 years. Information held by both OSM and Ohio does not support 
OCSEA's conclusion and OSM is unaware of any documentation to support 
this statement.
    Comments were also received from Howard R. Fauss, P.E. Mr. Fauss's 
comments concern the proposed abolishment and restructuring of the 
regulatory and AML engineering staff positions. Since the Director is 
deferring his decision on these portions of PA 63, Mr. Fauss's comments 
will not be discussed in this document but will be discussed in the 
final rule on the deferred engineering portions of the amendment.
    Comments were received from the Ohio Historic Preservation Office 
(OHPO). The OHPO did not object to the proposed amendment. Rather the 
OHPO was concerned that, due to the proposed reorganization and 
staffing reduction, the Division of Reclamation will be able to carry 
out its responsibilities under Sections 106 and 110 of the National 
Historic Preservation Act.

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 Labor, Mine Safety and Health Administration, responded 
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 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 Nos. OH-1849 and OH-
1975). By letter dated April 20, 1993 (Administrative Record No. OH-
1868), EPA commented that a decrease in staffing levels may possibly 
lead to adverse water quality impacts if there is a decrease in 
oversight of the regulated community. At this time, the Director is not 
aware that the water quality is affected by the staffing reductions. 
OSM through its normal oversight process will insure that Ohio is able 
to continue to efficiently and effectively conduct its approved 
programs.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Ohio on March 15, 1993, and as clarified on 
June 16, 1993, December 6, 1993, and April 21, 1994. The Director 
defers decision on the regulatory engineering portion of the amendment, 
as discussed above in the three findings in Section G.
    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.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the Ohio program, the Director will recognize only the 
statutes, regulations and other materials approved by OSM, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by Ohio of only such 
provisions.

VI. Procedural Determinations

Executive Order No. 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review). (See also Public Comments.)

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. (See also Public Comments.)

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. 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: August 18, 1994.
Tim L. Dieringer,
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 (sss) to read as 
follows:


Sec. 935.15  Approval of regulatory program amendments.

* * * * *
    (sss) The following amendment to the Ohio regulatory program, as 
submitted to OSM on March 15, 1993, and clarified on June 16, 1993, 
December 6, 1993, and April 21, 1994, is approved, effective September 
1, 1994: Program Amendment Number 63 which reduces and reorganizes 
approved staffing levels. Action is deferred on the engineering portion 
of the amendment until after Ohio has completed the reorganization and 
resubmitted the final staffing configuration to OSM.

[FR Doc. 94-21583 Filed 8-31-94; 8:45 am]
BILLING CODE 4310-05-M