[Federal Register Volume 61, Number 172 (Wednesday, September 4, 1996)]
[Rules and Regulations]
[Pages 46548-46550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22447]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-238-FOR, #72]


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 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). Ohio 
proposed revisions to rules pertaining to underground mining. The 
amendment is intended to revise the Ohio program to be consistent with 
the corresponding Federal regulations.

EFFECTIVE DATE: September 4, 1996.

FOR FURTHER INFORMATION CONTACT: George Rieger, Field Branch Chief, 
Appalachian Regional Coordinating Center, OSM, 3 Parkway Center, 
Pittsburgh, PA 15220, Telephone: (412) 937-2153.

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

[[Page 46549]]

approval can be found in the August 10, 1982, Federal Register (42 FR 
34668). Subsequent actions concerning conditions of approval and 
program amendments can be found at 30 CFR 935.11, 935.12, 935.15, and 
935.16.

II. Submission of the Proposed Amendment

    By letter dated May 23, 1996, (Administrative Record No. OH-2166-
00) Ohio submitted a proposed amendment to its program pursuant to 
SMCRA at its own initiative. Ohio proposed to revise the Ohio 
Administrative Code (OAC) at sections 1501:13-4-12(G)(3)(d) and 
4(f),(I)--Requirements for Special Categories of Mining; 1501:13-9-
08(A),(B)--Protection of Underground Mining; and 1501:13-13-01--
Concurrent Surface and Underground Mining.
    OSM announced receipt of the proposed amendment in the June 24, 
1996, Federal Register (61 FR 32382), 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 July 24, 1996.

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.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes, or revised cross-references and paragraph notations to 
reflect organizational changes resulting from this amendment.

A. Revisions to Ohio's Regulations That Are Substantively Identical to 
the Corresponding Provisions of the Federal Regulations

----------------------------------------------------------------------------------------------------------------
            State regulation                       Subject                       Federal counterpart            
----------------------------------------------------------------------------------------------------------------
OAC 1501:13-4-12(G)(3)(d)..............  Variances.................  30 CFR 785.18(b)(4)                        
OAC 1501:13-4-12(G)(4)(f)..............  Permit Issuance...........  30 CFR 785.18(c)(6)                        
OAC 1501:13-4-12(G)(4)(i)..............  Permit Issuance...........  30 CFR 785.18(c)(9)(iii)                   
OAC 1501:13-9-08(A)(1).................  Protection of Underground   30 CFR 816.79(b)                           
                                          Mining.                                                               
----------------------------------------------------------------------------------------------------------------

    Because the above proposed revisions are identical in meaning to 
the corresponding Federal regulations, the Director finds that Ohio's 
proposed rules are no less effective than the Federal rules.

B. Revisions to Ohio's Regulations With No Corresponding Federal 
Regulations

    Ohio proposed to delete OAC 1501:13-9-08(B) which required that 
surface mining operations be designed to protect disturbed surface 
areas, including spoil disposal sites, so as not to endanger any 
present or future coal mining operation. There is no corresponding 
Federal requirement to this provision. Therefore, the Director finds 
that the proposed deletion will not render the State program less 
effective than the Federal regulations.
    Ohio proposed to delete OAC 1501:13-13-01 which specifies 
performance standards for concurrent surface and underground mining 
activities operating under a variance from contemporaneous reclamation 
requirements. These provisions have no corresponding Federal 
requirements. Ohio's provisions for variances in contemporaneous 
reclamation appear in OAC 1501:13-4-12(G). The Director finds that the 
proposed deletion will not render the State program less effective than 
the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. Two public comments 
were received. Because no one requested an opportunity to speak at a 
public hearing, no hearing was held.
    One commenter stated that by rescinding OAC 1501:13-13-01, 
underground and surface coal reserves will be sterilized needlessly. 
The commenter suggests that this provision provides a degree of 
flexibility and that the 500 foot barrier was meant for underground and 
surface mines in the same seam. The Director notes that the changes 
proposed by Ohio simplify its rule structure by eliminating OAC 
1501:13-13-01 which duplicates requirements found under 1501:13-4-12(G) 
(contemporaneous reclamation) and 1501:13-9-08 (concurrence). The 
revisions are not intended to create the loss of any flexibility nor 
cause any impact that would sterilize or impact the ability to mine 
certain reserves beyond those that currently exist in the Ohio program 
and do not render the program less effective than the Federal 
regulations.
    The second commenter, the Ohio Historic Preservation Office (OHPO), 
expressed several concerns. OHPO feels that proposed rule changes 
pertaining to surface mining operations are not routinely sent to OHPO 
for review. OHPO is particularly concerned that there is no basis for 
selecting the 500 foot distance requirement specified in OAC 1501:13-9-
08. If feels this could create situations where there are adverse 
effects to a property eligible for inclusion in the National Register 
of Historic Places (NRHP). OHPO is also concerned that the proposed 
changes could result in an acceleration of surface affectment actions 
with increased risks for adverse effects to properties that may be 
eligible for inclusion in the NRHP. The Director acknowledges that all 
requirements of coordination and consultation between agencies 
responsible for implementing the National Historic Preservation Act 
(NHPA) must be met. However, the changes proposed by Ohio do not impact 
compliance with NHPS and the OHPA comments are, therefore, outside the 
scope of this amendment. The Director notes that the referenced 500 
foot distance concerns the amount of barrier that may be necessary to 
ensure the protection of underground coal miners and is consistent with 
Federal requirements. The barrier is a hydrologic and structural 
consideration and not considered as a direct limitation on surface 
impacts as OHPA suggests. The Director concludes that none of the 
changes proposed by Ohio create barriers to compliance with the NHPA.

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. None were 
received.

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.).

[[Page 46550]]

    None of the revisions Ohio proposed to make in its amendment 
pertains to air or water quality standards. Nevertheless, OSM requested 
EPA's concurrence with the proposed amendment. EPA did not respond to 
OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Ohio on May 23, 1996.
    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.

VI. Procedural Determinations

Executive Order 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 extend 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.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.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 19, 1996.
Tim L. Dieringer,
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 paragraph (bbbb) to read as 
follows:


Sec. 935.15  Approval of regulatory program amendments.

* * * * *
    (bbbb) The following rules, as submitted to OSM on May 23, 1996 are 
approved effective September 4, 1996.

OAC 1501:13-4-12(G)(3)(d)--Variance
OAC 1501:13-4-12(G)(4)(f),(i)--Permit Issuance
OAC 1501:13-9-08(A)(1)--Protection of Underground Mining
OAC 1501:13-9-08(B) (Deletion)--Protection of Underground Mining
OAC 1501:13-13-01 (Deletion)--Concurrent Surface and Underground Mining

[FR Doc. 96-22447 Filed 9-3-96; 8:45 am]
BILLING CODE 4310-05-M