[Federal Register Volume 60, Number 92 (Friday, May 12, 1995)]
[Rules and Regulations]
[Pages 25612-25615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11782]



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[[Page 25613]]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-231; Amendment Number 68R]


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 amendment was initiated by Ohio and is intended to make the Ohio 
program as effective as the corresponding Federal regulations 
concerning contemporaneous reclamation. Specifically, the amendment 
defines the terms ``area mining,'' ``auger mining,'' and ``contour 
mining''; specifies information required in permit operation plans and 
mining reclamation plans; establishes time and distance schedules for 
backfilling and grading for mining methods other than area and contour 
mining; and requires the contemporaneous commencement of augering.

EFFECTIVE DATE: May 12, 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.
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

    By letter dated May 17, 1994 (Administrative Record No. OH-2018), 
the Ohio Department of Natural Resources, Division of Reclamation 
(Ohio), submitted proposed Program Amendment Number 68 (PA 68). In this 
amendment, Ohio proposed to revise three rules in the Ohio 
Administrative Code (OAC) at 1501:13-1-02, 1501:13-4-05, and 1501:13-9-
13 to make the Ohio program as effective as the Federal regulations 
concerning contemporaneous reclamation. As part of and in support of 
proposed PA 68, Ohio also submitted a draft Policy/Procedure Directive 
(PPD) which provides additional clarification and guidance on the 
proposed Ohio rule requirements for contemporaneous reclamation.
    OSM announced receipt of the proposed amendment in the May 26, 
1994, Federal Register (59 FR 27253), 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.
    OSM and Ohio staff met on August 22, 1994, to discuss OSM's 
questions and concerns about PA 68 (Administrative Record No. OH-2093). 
In response to OSM's August 22, 1994, questions and comments, Ohio 
provided Revised Program Amendment Number 68 (PA 68R) by letter dated 
March 1, 1995 (Administrative Record No. OH-2094). In PA 68R, Ohio 
proposed further changes to the three rules and to the draft PPD. OSM 
announced its receipt of PA 68R in the March 17, 1995, Federal Register 
(60 FR 14400). The public comment period ended on April 3, 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. Only substantive changes to 
Ohio's rules and the new Ohio PPD are discussed below. Rule revisions 
which are not discussed below concern paragraph notations or editorial 
or nonsubstantive wording changes intended to improve the clarity and 
readability of the rules.

1. Area Mining

    Ohio is adding new OAC section 1501:13-1-02 paragraph (J) to define 
the term ``area mining'' to mean a method of surface coal mining that 
involves making a series of parallel mining cuts against the highwall 
created from the initial mining cut. Although there is no counterpart 
Federal definition for this term, the Director finds that the proposed 
definition is not inconsistent with the requirements of SMCRA and the 
Federal regulations.

2. Auger Mining

    Ohio is revising its definition of the term ``auger mining'' in OAC 
section 1501:13-1-02 paragraph (K) to mean drilling holes or cutting 
into an exposed coal seam at a highwall and transporting the coal to 
the surface along an auger bit, by conveyor, or by other means. The 
Director finds that this definition is no less effective than the 
corresponding Federal definition of ``auger mining'' at 30 CFR 701.5.

3. Contour Mining

    Ohio is adding new OAC section 1501:13-1-02 paragraph (CC) to 
define the term ``contour mining'' to mean a method of surface coal 
mining that involves making an initial mining cut along the contour of 
a hillside to the maximum highwall height and then making subsequent 
cuts along the same contour, placing the spoil in the preceding cut 
where the coal has been removed. Although there is no counterpart 
Federal definition for this term, the Director finds that the proposed 
definition is not inconsistent with the requirements of SMCRA and the 
Federal regulations.

4. Permit Operation Plan

    Ohio is adding new OAC section 1501:13-4-05 paragraphs (A)(2)(a) 
(i) through (iv) to require that the mining operation plan in permit 
applications shall, at a minimum, identify the mining method to be 
used, the maximum extent of cover to be mined, the locations where 
mining will begin and end, and the direction of mining. For mining 
methods other than area or contour mining, the mining operation plan 
shall also include other information that demonstrates the orderly and 
reasonable progression of mining. Such information shall include, but 
not be limited to, spoil placement plans, proposed locations of haul 
roads, and the intended timing of the mining operation. Mining 
operation plans shall specify how the mining operation will meet the 
time and distance requirements for contemporaneous reclamation 
established in OAC section 1501:13-9-13.
    Ohio's existing rule at OAC section 1501:13-4-05 paragraph 
(A)(2)(a) is substantively identical to the corresponding Federal 
regulation at 30 CFR 780.11(a) concerning the general 
[[Page 25614]] requirements for mining operation plans. Although there 
are no corresponding Federal regulations to the new requirements 
proposed in OAC section 1501:13-4-05 paragraphs (A)(2)(a) (i) through 
(iv), the Director finds that these new requirements are reasonable and 
are not inconsistent with the Federal regulations at 30 CFR 780.11(a) 
and with the revisions which Ohio is making elsewhere in this rule and 
in other rules.

5. Mining Reclamation Plan

    Ohio is revising OAC section 1501:13-4-05 paragraph (D)(2)(a) to 
require that reclamation plans in permit applications shall contain a 
detailed timetable for the completion of each major step of the 
reclamation plan specific to the described mining method and addressing 
the contemporaneous reclamation requirements of OAC section 1501:13-9-
13.
    Ohio's existing rule at OAC section 1501:13-4-05 paragraph 
(D)(2)(a) is substantively identical to the corresponding Federal 
regulation at 30 CFR 780.18(b)(1) concerning the timetable for 
completion of each major step in the reclamation plan. Although there 
are no corresponding Federal regulations to the new requirements 
proposed in OAC section 1501:13-4-05 paragraph (D)(2)(a), the Director 
finds that these new requirements are reasonable and are not 
inconsistent with the Federal regulations at 30 CFR 780.18(b)(1) and 
with the revisions which Ohio is making elsewhere in this rule and in 
other rules.

6. Contemporaneous Reclamation

    A. Ohio is revising OAC section 1501:13-9-13 paragraphs (A), 
(A)(1), and (A)(2) and is adding new paragraphs (A)(3) and (A)(4) to 
clarify the rule language, to specify minimum time and distance 
requirements for backfilling and grading for mining methods other than 
contour or area mining, and to require the contemporaneous commencement 
of augering after the creation of the highwall to be augered.
    B. Ohio is adding new OAC section 1501:13-9-13 paragraph (A)(7) to 
clarify that areas that are backfilled and rough graded shall closely 
resemble the final ground surface configuration approved in the mining 
and reclamation plan but that these areas are not necessarily ready for 
resoiling or eligible for Phase I bond release.
    C. Ohio is supplementing the requirements of OAC section 1501:13-9-
13 with proposed Policy/Procedure Directive (PPD) Regulatory 94-3, 
``Contemporaneous Reclamation.'' This PPD provides clarification and 
guidance on the requirements in the OAC for contemporaneous 
reclamation.
    The Federal regulations at 30 CFR 816/817.100 provide that 
reclamation efforts shall occur as contemporaneously as practicable 
(except where a variance for concurrent surface and underground mining 
is issued under 30 CFR 785.18). However, the Federal regulations have 
no counterpart to the specific time and distance requirements for 
contemporaneous reclamation proposed by Ohio in OAC section 1501:13-9-
13 and in the accompanying PPD. On July 31, 1992 (57 FR 33876), OSM 
suspended in full its specific backfilling and grading time and 
distance requirements at 30 CFR 816.101. In that notice of suspension, 
OSM stated that mining operations would continue to be subject to the 
State-specific contemporaneous reclamation regulations of State and 
Federal programs which were then in effect. OSM agreed that regulatory 
authorities could set these State-specific time and distance schedules 
based on local conditions.
    Therefore, there are no corresponding Federal regulations to the 
new requirements which Ohio has proposed in OAC section 1501:13-9-13 
and in the new PPD. The Director finds that Ohio's new contemporaneous 
reclamation requirements are reasonable and are not inconsistent with 
the Federal regulations at 30 CFR 816/817.100 and with the revisions 
which Ohio is making elsewhere in other rules.

IV. Summary and Disposition of Comments

Public Comments

    On May 26, 1994, and March 17, 1995, the Director solicited public 
comments and provided an opportunity for a public hearing on the 
proposed amendment. OSM received comments on the amendment from the 
Ohio Mining and Reclamation Association (OMRA) by letter dated April 1, 
1995 (Administrative Record No. OH-2106). OMRA made several objections 
to the amendment:
    (1) Ohio has not held a hearing on the proposed rule changes. The 
Director believes that this comment is not immediately relevant to his 
decision on this amendment. The public hearing mentioned in the comment 
is part of Ohio's internal rule-filing process. If further rule changes 
become necessary as a result of comments received during Ohio's rule 
filing, Ohio will resubmit those proposed changes to OSM for review 
under the program amendment process.
    (2) The proposed rule changes do not employ normal common sense 
relative to contemporaneous reclamation in the areas of weather, 
equipment failure, and multiple seam mining. The time constraints are 
too restrictive and could result in Ohio issuing violations to mine 
operators. The Director does not agree with this comment. As discussed 
above, the Director has reviewed Ohio's proposed reclamation schedules 
and found them to be reasonable and not inconsistent with the Federal 
regulations at 30 CFR 816/817.100.
    (3) The amendment seems to have eliminated the difference between 
rough and final grading. The Director does not agree with this comment. 
The proposed changes in the amendment concerning backfilling and rough 
grading are not inconsistent with the Federal regulations at 30 CFR 
816/817.100.
    (4) The amendment reflects continued overregulation and 
unreasonable demands by the Federal government. The Director does not 
agree with this comment. As discussed above, OSM has deliberately 
placed the responsibility for developing contemporaneous reclamation 
standards with the State regulatory authorities most familiar with the 
mining practices in their areas.
    No other 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 Director of the 
U.S. Environmental Protection Agency (EPA) and the heads of four other 
Federal agencies and one State agency with an actual or potential 
interest in the Ohio program. Nonsubstantive comments were received 
from the EPA, the Soil Conservation Service, and the Mine Safety and 
Health Administration. No other agency comments were received.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Ohio on May 17, 1994, and revised on March 1, 
1995.
    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. [[Page 25615]] 

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.

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 on 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.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: May 5, 1995.
Ronald C. Recker,
Acting 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 (www) to read 
as follows:


Sec. 935.15  Approval of regulatory program amendments.

* * * * *
    (www) The following amendment (Program Amendment 68R) pertaining to 
the Ohio regulatory program, as submitted to OSM on May 17, 1994, and 
revised on March 1, 1995, is approved, effective May 12, 1995: 
Contemporaneous Reclamation.

[FR Doc. 95-11782 Filed 5-11-95; 8:45 am]
BILLING CODE 4310-05-M