[Federal Register Volume 59, Number 219 (Tuesday, November 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28120]


[[Page Unknown]]

[Federal Register: November 15, 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 with one exception, proposed Program 
Amendment Number 62 Revised 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. The amendment concerns the 
removal of siltation structures prior to two years after the last 
augmented seeding upon a demonstration that revegetation is the best 
technology currently available for sediment control.

EFFECTIVE DATE: November 15, 1994.

FOR FURTHER INFORMATION CONTACT:
Robert H. Mooney, Acting 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 
submission, 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 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 revegetation is the best technology currently 
available (BTCA) for sediment control. As part of and in support of the 
amendment, Ohio also submitted Administrative Record information 
discussing Ohio's intended implementation of this proposal.
    OSM announced receipt of proposed PA 62 in the April 2, 1993, 
Federal Register (58 FR 17372), 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 May 3, 1993.
    By letter dated September 20, 1993 (Administrative Record No. OH-
1931), OSM provided Ohio with its comments on the March 4, 1993, 
submission of PA 62.
    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 
information required by OSM's September 20, 1994, letter 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). As part 
of and in support of PA 62R, Ohio submitted a draft Policy/Procedure 
Directive entitled ``Removal of Siltation Structures and Termination of 
NPDES Monitoring'' and accompanying form ``Request to Remove Siltation 
Structure and Termination of Two Year Period.'' Ohio also submitted 
additional documents in support of PA 62R by letter dated March 10, 
1994 (Administrative Record No. OH-1996). In total, PA 62R consists of 
new proposed revisions to three 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.
    OSM reopened the public comment period for proposed PA 62R in the 
March 30, 1994, Federal Register (59 FR 14812) and provided an 
opportunity for a public hearing on the adequacy of the revised 
amendment. The public comment period closed on April 14, 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.
    1. OCA 1501:13-4-05 paragraph (E)(1)(g) and 13-4-14 paragraph 
(E)(1)(f). Ohio is 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 BTCA, additional contributions of suspended 
solids to streamflow, or runoff outside the permit area. The Chief may 
determine that vegetation is BTCA 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 Paragraphs (H)(1)(b)(iv). Ohio is 
revising these two paragraphs to provide that the detailed design plans 
for impoundment structures that meet or exceed size or other criteria 
of the Mine Safety and Health administration (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 BTCA 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 Paragraphs (H)(1)(c)(iv). Ohio is 
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.
    4. OAC 1501:13-9-04 Paragraph (B)(1). Ohio is revising this 
paragraph to provide that all surface drainage from the disturbed area 
shall be passed through a sedimentation pond before leaving the permit 
area until vegetation is established, at which time vegetation of the 
area may be BTCA, provided that drainage from the area:
    (a) Meets effluent limitations; and
    (b) Does not contribute suspended solids to streamflow.
    5. OAC 1501:13-9-04 Paragraph (G)(2)(e). Ohio is revising this 
paragraph to provide that in no case shall a siltation structure be 
removed sooner than two years after the last augmented seeding unless, 
after vegetation is established, the operator demonstrates and the 
Chief approves the Administrative Code alternative methods of sediment 
control as BTCA under paragraph (E)(1)(g) of OAC 1501:13-4-05 or 
paragraph (E)(1)(f) of OAC 1501:13-4-14.
    The previously described additions to the Ohio rules have no direct 
Federal counterparts. These changes are in response to a remand of the 
Federal rules found at 30 CFR 816/817.46(b)(2). In re: Permanent 
Surface Mining Regulation Litigation (III) 620 F.Supp. 1519 (D.D.C. 
1985). These Federal rules were remanded by the District Court because 
the preamble to the regulations failed to provide a sufficient 
rationale for requiring siltation structures in every instance. 
Subsequently, OSM suspended these rules on November 26, 1986 (51 FR 
41957).
    The effect of this suspension is that State regulatory authorities 
must determine on a case by case basis what is BTCA rather than 
requiring, in every situation, that drainage be passed through 
siltation structures. The use of BTCA is required by sections 
515(b)(10)(B) and 516(b)(9)(B) of SMCRA. These statutory sections 
require that surface coal mining operations be conducted ``so as 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, but in no event shall contributions 
be in excess of requirements set by applicable State or Federal law.'' 
This suspension also affects 30 CFR 816/817.46(b)(5). Subsection (b)(5) 
required that siltation structures remain in place at least two years 
after the last augmented seeding. Nonetheless, now that BTCA is 
required for sediment control rather than siltation structures, these 
siltation structures may be removed sooner than two years after the 
last augmented seeding provided the replacement is BTCA.
    The additions to the Ohio rules allow the removal of siltation 
structures sooner than two years after the last augmented seeding 
provided that the revegetation is determined by Ohio to be BTCA and the 
drainage meets the effluent limitations and is not contributing 
suspended solids to the streamflow. These revisions are consistent with 
the remand of the Federal rules and the effects of the rules' 
suspension. Therefore, the Director finds that the amendments to the 
Ohio rules, which were previously described, are in accordance with 
515(b)(1)(B) and 516(b)(9)(B) of SMCRA.
    Ohio is also revising its Policy/Procedure Directive, Inspection 
and Enforcement 93-4, entitled ``Removal of Siltation Structures and 
Termination of NPDES Monitoring.'' The purpose of this policy directive 
is to provide standard criteria for use by Ohio's Inspection and 
Enforcement Section to review the permittee's request for the removal 
of siltation structures on ``D'' permits and to terminate NPDES 
monitoring and sediment storage requirements. Under the directive, a 
permittee will be required to complete the attached form ``Request to 
Remove Siltation Structure and Termination of Two Year Period.'' In 
order for Ohio to approve each request for vegetation as BTCA, there 
must have been no augmented seeding of the disturbed area for at least 
one year and vegetative ground cover must equal or exceed 90 percent.
    This Policy/Procedure Directive and its accompanying form implement 
the proposed regulations. Therefore, except as noted below, the 
revisions to the Policy/Procedure Directive and the accompanying form 
are in accordance with 515(b)(10)(B) and 516(b)(9)(B) of SMCRA. OSM is 
deferring its decision on the portion of the revised policy directive 
which states: ``NOTE: Temporary ponds must be reclaimed at least 90 
days prior to approval of the Phrase III release.'' This language is 
related to Ohio Program Amendment Number 61R (PA 61R), which was 
approved on August 16, 1993 (59 FR 43261), with the exception of OAC 
1501:13-9-15 (F)(5), (6) and (7). OSM deferred its decision on OAC 
1501:13-9-15 (F) (5), (6) and (7).

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. The National Coal Association supported the amendment.

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; and the U.S. Army 
Corps of Engineers responded that they had no comments. The U.S. 
Department of Labor, MSHA, commented that although MSHA requires as 
part of an abandonment plan for all impoundments, a timetable and plans 
for the removal of any impoundments, the proposed amendment did not 
conflict with MSHA regulations. MSHA also commented that nothing in 
this proposed amendment should be interpreted or construed as providing 
relief or exemption from the Mine Safety and Health Act. In response, 
the Director notes that with respect to impoundments, both the State 
and Federal rules specifically incorporate MSHA rules by reference. The 
Director notes that the Ohio rules cannot be construed as superseding, 
amending or repealing MSHA because such activities are prohibited under 
section 702 of SMCRA.

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.).
    On March 16, 1993, OSM solicited EPA's concurrence with the 
proposed amendment (Administrative Record No. OH-1843). On May 11, 
1993, EPA gave its written concurrence (Administrative Record No. OH-
1883).

V. Director's Decision

    Based on the above findings, the Director approves with one 
exception, the proposed program amendment as submitted by Ohio on March 
4, 1993, and revised on March 1, 1994, and March 10, 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 rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory 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. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the corresponding Federal regulations.

List of Subjects in 30 CFR Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 4, 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. In Sec. 935.15, a new paragraph (uuu) is added to read as 
follows:


Sec. 935.15  Approval of regulatory program amendments.

* * * * *
    (uuu) The following amendment to the Ohio regulatory program, as 
submitted to OSM on March 4, 1993, and revised on March 1, 1994, and 
March 10, 1994, is approved with one exception noted below effective 
November 15, 1994: Revised Amendment Number 62 which consists of:
    (1) Revisions to the Ohio Administrative Code (OAC) at 1501:13-4-
05(E)(1)(g), (H)(1)(b)(iv), (H)(1)(c)(iv); 1501:13-4-14(E)(1)(f), 
(H)(1)(b)(iv), (H)(1)(c)(iv); and 1501:13-9-04(B)(1) (a) and (b), and 
(G)(2)(e) concerning the removal of siltation structures prior to two 
years after the last augmented seeding upon a demonstration that 
revegetation is the best technology currently available for sediment 
control.
    (2) Revisions to Ohio's Policy/Procedure Directive, Inspection and 
Enforcement 93-4, entitled ``Removal of Siltation Structures and 
Termination of NPDES Monitoring'' with its attached form, except for 
that portion concerning the reclamation of a temporary pond which is 
deferred until such time as final action is taken on Program Amendment 
Number 61.

[FR Doc. 94-28120 Filed 11-14-94; 8:45 am]
BILLING CODE 4310-05-M