[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
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State regulation Subject Federal counterpart
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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.
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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]
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