[Federal Register Volume 60, Number 91 (Thursday, May 11, 1995)]
[Rules and Regulations]
[Pages 25140-25143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11649]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-232; Combined Program Amendments Numbers 25R and 56R]


Ohio Regulatory Program Amendment

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing the approval of a proposed amendment to the 
Ohio regulatory program (hereinafter referred to as the Ohio program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The proposed amendment is intended to revise Ohio's ``Guidelines for 
Evaluating Revegetation Success'' to be consistent with the 
corresponding Federal regulations. These guidelines describe the 
sampling methods which Ohio proposes to use to evaluate revegetation 
success prior to bond release on areas with different postmining land 
uses.

EFFECTIVE DATE: May 11, 1995.

FOR FURTHER INFORMATION CONTACT:
Mr. 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. Discussion of the Proposed Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments. [[Page 25141]] 
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. Information on the general background of the 
Ohio program, including the Secretary's findings, the disposition of 
comments, and a detailed explanation of the conditions of approval of 
the Ohio program, 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, 935.15, and 
935.16.

II. Discussion of the Proposed Amendment

    On October 21, 1993 (Administrative Record No. OH-1944), the Ohio 
Department of Natural Resources, Division of Reclamation (Ohio) 
submitted a final combined version of two previous program amendments, 
Program Amendments Numbers 25R and 56R (PA 25R and PA 56R). In this 
combined submission, Ohio proposed to revise parts of the Ohio 
Administrative Code (OAC) pertaining to land use and revegetation 
success standards. Ohio also submitted ``Guidelines for Evaluating 
Revegetation Success'' establishing the sampling methods for measuring 
vegetative ground cover, tree and shrub stocking, and crop and pasture 
productivity.
    In the May 2, 1994, Federal Register (59 FR 22507), the Acting 
Assistant Director of OSM announced his decision approving combined PA 
25R and 56R with certain exceptions. In that decision, the Assistant 
Director required Ohio to submit a proposed amendment to modify its 
``Guidelines for Evaluating Revegetation Success'' to require that 
species diversity, erosion control, and other applicable requirements 
of OAC 1501:13-9-15 (B) and (C) be evaluated at the time of final bond 
release. The Assistant Director also required that Ohio revise the 
formula for determining the sample size for evaluating tree and shrub 
success and provide documentation of concurrence by other agencies with 
specific portions of Ohio's evaluation methods.
    By letter dated July 19, 1994 (Ohio Administrative Record OH-2032), 
Ohio resubmitted revised ``Guidelines for Evaluating Revegetation 
Success'' which were intended to address the Assistant Director's 
requirements in his May 2, 1994, decision on PA 25R and 56R. OSM 
announced its receipt of the revised guidelines in the Federal Register 
(59 FR 38576) on July 29, 1994. The public comment period ended on 
August 29, 1994.
    By letter dated October 21, 1994, (Administrative Record No. OH-
2066), OSM provided its questions and comments to Ohio on the July 19, 
1994, submission of Ohio's revised guidelines. These questions and 
comments required further changes to the guidelines in addition to the 
changes required as part of the May 2, 1994, decision by the Assistant 
Director of OSM.
    By letter dated December 20, 1994 (Administrative Record OH-2075), 
Ohio resubmitted further revisions to the guidelines which were 
intended to address the questions and comments in OSM's October 21, 
1994, letter. OSM announced its receipt of the revised guidelines in 
the Federal Register (60 FR 3184) on January 13, 1995. The public 
comment period ended on February 13, 1995.

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.
    All of the proposed changes in this Ohio program amendment concern 
Ohio's ``Guidelines for Evaluation of Revegetation Success.'' None of 
the proposed changes modify Ohio's statutes in the Ohio Revised Code or 
rules in the Ohio Administrative Code (OAC). Only substantive changes 
to Ohio's guidelines are discussed below. Revisions which are not 
discussed below concern editorial or nonsubstantive wording changes 
intended to improve the clarity and readability of the guidelines.
    Ohio's proposed guidelines govern reclamation of surface mining 
activities and the surface effects of underground mining activities. 
The Federal counterparts are 30 CFR part 816 for surface mining 
activities and 30 CFR part 817 for underground mining activities. With 
a few exceptions, 30 CFR parts 816 and part 817 are substantively 
identical. OSM will discuss the proposed changes to Ohio's guidelines 
in relation to the Federal rules governing surface mining activities at 
30 CFR part 816 with the understanding that such discussion also 
applies to the Federal rules governing underground mining activities at 
30 CFR part 817. Any exceptions will be discussed separately.

(a) Verification That the Soil Surface is Stabilized From Erosion

    Ohio is revising the first paragraph in Section A of its guidelines 
to require Ohio inspectors to verify, at the time of the final bond 
release inspection, that the vegetative cover is successfully 
stabilizing the soil surface from erosion. This verification enforces 
one of the general requirements for revegetation at OAC section 
1501:13-9-15(B)(4), the State counterpart to 30 CFR 816.111(a)(4). The 
Director therefore finds that this revision to the Ohio guidelines 
brings those guidelines into conformity with other provisions of the 
Ohio program and is no less effective than the corresponding Federal 
rule at 30 CFR 816.111(a)(4).

(B) Evaluation of Vegetative Species Composition and Diversity

    Ohio is revising the first paragraph in Section A of its guidelines 
to require Ohio inspectors to evaluate vegetative species composition 
and diversity at the time of the final bond release inspection. The 
inspector's evaluation will be based primarily on visual observations 
in the field and will be documented using a new diversity checklist, 
included as Attachment 4 to the guidelines. Ohio is also adding a new 
Section A.VI to the guidelines explaining the concept of species 
diversity and the use of the new diversity checklist.
    This evaluation of species diversity enforces one of the general 
requirements for revegetation at OAC section 1501:13-9-15(b) (1) and 
(2), the State counterparts to 30 CFR 816.111(a) (1) and (2). The 
Director therefore finds that this revision to the Ohio guidelines 
brings those guidelines into conformity with other provisions of the 
Ohio program and is no less effective than the corresponding Federal 
rules at 30 CFR 816.111(a) (1) and (2).
    As part of his May 2, 1994, decision approving combined PA 25R and 
56R, the Assistant Director of OSM also required Ohio to submit 
documentation that it has consulted with and obtained the approval from 
the responsible agency for the methods which Ohio will use to evaluate 
species diversity. As part of its July 19, 1994, submission of PA 25R 
and 56R, Ohio submitted a memorandum dated July 19, 1994 
(Administrative Record OH-2039), from the Acting Chief of the Division 
of Natural Areas and Preserves (DNAP), Ohio Department of Natural 
Resources. In this memorandum, DNAP discussed its participation in 
developing the diversity checklist and approved Ohio's use of that 
checklist in evaluating revegetation success. This concurrence by DNAP 
satisfies the Assistant Director's requirement.
[[Page 25142]]

(C) Proper Handling and Planting of Trees and Shrubs

    Ohio is revising section B.2 of its guidelines to clarify the 
procedures to be used to protect tree seedlings and shrubs during 
planting. Ohio is adding a statement that tree plantings in stream 
buffer zones must comply with Ohio Policy/Procedure Directive 
Regulatory 94-1. Ohio is adding a statement establishing the seasonal 
time period for planting of willow or other stakes or posts. Ohio is 
clarifying the approved methods of carrying seedlings during planting. 
Ohio is adding a specific provision that roots cannot be exposed once a 
seedling is planted. Finally, Ohio is adding a provision that stakes 
and posts shall be planted so that at least 40 to 50 percent of their 
total length is beneath the soil surface. The Director finds that these 
revisions to the Ohio guidelines clarify and improve those guidelines 
and are consistent with the corresponding Federal rules at 30 CFR 
816.111 and 816.116.

(D) Sampling Methods

    (1) Formulas for Sampling Adequacy: Ohio is revising section B.1.IV 
and Attachment 7 of its guidelines to correct three errors in the 
formulas for determining the size of the samples needed to evaluate the 
success of tree and shrub plantings. Ohio is also revising section 
C.1.IV and Attachment 11 of its guidelines to make corresponding 
corrections to the formulas for determining the size of the samples 
needed to evaluate the productivity of pasture, grazing land, and 
cropland.
    (2) Procedure for evaluating ground cover using less than 100 
samples: Ohio is revising sections A.1.II and A.1.IV and is deleting 
old Attachment 4 in its guidelines in order to require a minimum of 100 
samples to evaluate ground cover.
    (3) Reference to ``subsamples, for hay'': Ohio is deleting the 
reference in section C.1.V of the guidelines to ``subsamples, for 
hay.''
    The Director finds that, with these three revisions, the Ohio 
guidelines are consistent with the corresponding Federal rules at 30 
CFR 816.111 and 816.116.

(E) State Agency Concurrence on Stocking Standard for Commercial Forest

    In his May 2, 1994, decision approving combined PA 25R and 56R, the 
Acting Assistant Director of OSM also required Ohio to provide 
documentation that Ohio has obtained approval from the Division of 
Forestry (DOF), Ohio Department of Natural Resources, for the standard 
regarding the maximum percentage of non-commercial trees planted on 
areas with commercial forest as the proposed postmining land use. As 
part of its July 19, 1994, submission of PA 25R and 56R (Administrative 
Record OH-2032), Ohio submitted a memorandum dated July 11, 1994, from 
the Chief of DOF. In this memorandum, DOF agreed with Ohio's standard 
that a maximum of 25 percent of the trees planted on lands reclaimed to 
commercial forest may be non-commercial trees and stated that this 
standard is appropriate and desirable. This concurrence by DPF 
satisfies the Assistance Director's requirement.

(F) Prime Farmland Crop Productivity

    In Its October 21, 1994, letter to Ohio (Administrative Record No. 
OH-2066), OSM recommended that Ohio should revise its guidelines to 
clarify that the first year of crop production cannot be included in 
determining revegetation success of reclaimed prime farmland. As 
suggested by OSM, Ohio is revising the third paragraph of Part C of the 
guidelines to exclude the first year's yields from consideration in 
meeting prime farmland crop productivity.
    The Director finds that, with this revision, the Ohio guidelines 
are no less effective than the corresponding Federal rules at 30 CFR 
810.11 regarding prime farmland and 30 CFR 816.116(c)(2) regarding 
revegetation success.
    For the reasons discussed above in Sections III.A.B, and D, the 
Director is removing the requirement at 30 CFR 935.16(a) that Ohio 
revise its ``Guidelines for Evaluating Revegetation Success.''

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 on July 29, 1994, and 
January 13, 1995. No public comments were received. No public hearings 
were held as no one requested the opportunity to provide testimony.

Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from the Regional Administrator of 
the U.S. Environmental Protection Agency (EPA); the U.S. Department of 
Agriculture, Soil Conservation Service (SCS); and the heads of three 
other Federal agencies with an actual or potential interest in the Ohio 
program. Nonsubstantive comments were received from SCS and from the 
Mine Safety and Health Administration. No other comments were received.
    The Director also solicited comments on the proposed amendment from 
the Ohio Historic Preservation Office (OHPO). OHPO commented that, in 
areas where historic properties have been avoided using a buffer zone 
during mining operations, the reclamation of the strip mine area around 
the buffer zone should be consistent with the protected area within the 
buffer zone. The Director concurs with this comment. OAC sections 
1501:13-9-15(C)(1) (a) and (d) require that reestablished plant species 
must be compatible with the approved postmining land use and with the 
plant and animal species of the surrounding area. This surrounding area 
would include protected areas within buffer zones. The Director finds 
that these existing Ohio rules adequately provide for compatible 
reclamation around buffer zones and that nothing in the proposed 
amendment negatively affects the effectiveness of these existing rules.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Ohio on July 19, 1994, and revised on 
December 20, 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.

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 a State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved programs. In the oversight 
of the Ohio program, the Director will recognize only the approved 
program, together with any consistent implementing policies, 
directives, and other materials, and will require the enforcement by 
Ohio of such provisions. [[Page 25143]] 

VI. Procedural Determinations

Executive Order 12866

    This final 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 other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S. 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: May 4, 1995.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal regulations is amended as set forth 
below:

PART 935--OHIO

    1. The authority citation for Part 935 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 935.15 is amended by adding new paragraph (vvv) to read 
as follows:


Sec. 935.15  Approval of regulatory program amendments.

* * * * *
    (vvv) The following amendment (Combined Program Amendments 25R and 
56R) pertaining to the Ohio regulatory program, as submitted to OSM on 
July 19, 1994, and revised on December 20, 1994, is approved, effective 
May 11, 1995: Ohio Guidelines for Evaluating Revegetation Success


Sec. 935.16  [Removed and reserved]

    3. In Sec. 935.16, paragraph (a) is removed and reserved.
[FR Doc. 95-11649 Filed 5-10-95; 8:45 am]
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