[Federal Register Volume 61, Number 210 (Tuesday, October 29, 1996)]
[Rules and Regulations]
[Pages 55748-55750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27600]


-----------------------------------------------------------------------


DEPARTMENT OF THE INTERIOR
30 CFR Part 935

[OH-237; Amendment Number 71]


Ohio Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

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 inspections. The amendment is 
intended to make the Ohio program consistent with the corresponding 
Federal regulations.

EFFECTIVE DATE: October 29, 1996.

FOR FURTHER INFORMATION CONTACT:
George Rieger, Field Branch Chief, Appalachian Regional Coordinating 
Center, Office of Surface Mining Reclamation and Enforcement, 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 approval can be found in the August 10, 1982, Federal 
Register (47 FR 34688). Subsequent actions concerning conditions of 
approval and program amendments can be found at 30 CFR 935.11, 935.15, 
and 935.16.

II. Submission of the Proposed Amendment

    By letter dated May 17, 1996, (Administrative Record No. OH-2165-
00) Ohio submitted a proposed amendment to its program pursuant to 
SMCRA at its own initiative. Ohio proposed to revise Ohio 
Administrative Code (OAC) section 1501:13-14-01 by deleting that 
portion of the rule pertaining to bond reduction; adding language to 
treat portions of operations as inactive where reclamation phase II is 
performed; and to delete a reference to permits other than permanent 
program ``D'' permits. In a subsequent letter dated September 3, 1996,

[[Page 55749]]

(Administrative Record No. OH-2165-06) Ohio withdrew its proposal to 
add language at OAC 1501:13-14-01(A)(2), that would allow portions of 
operations to be considered as inactive for inspection purposes.
    OSM announced receipt of the proposed amendment in the June 11, 
1996, Federal Register (61 FR 29504), 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 11, 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.

OAC 1501:13-14-01 Inspections

    (A)(2)(b) Ohio is proposing to amend its regulations pertaining to 
inspections to change the definition of ``inactive coal mining and 
reclamation operation''. Currently, one of the ways for an Ohio coal 
mining operation to be deemed ``inactive'' is for the entire operation 
to have achieved Phase II reclamation standards and that release of 
phase II bond liability has occurred. Ohio is proposing to delete the 
requirement that actual release from phase II bond liability must occur 
before a site is considered inactive so that the operation must only 
meet phase II reclamation standards to be considered inactive. The 
amendment has nearly identical wording to 30 CFR 842.11(c)(2)(iii)(B) 
(the rule applying to OSM when it is the regulatory authority). 
Although 30 CFR 842.11(c)(2)(iii)(B) is nearly identical to the Ohio 
amendment, 30 CFR 840.11(f)(2) (the rule applying to states when they 
are the regulatory authority), contains language nearly identical to 
Ohio's existing regulation. However, as discussed below, it is clear 
from the 1982 federal rule preamble, the OSM intended the rules for OSM 
and the states to be the same and only to require that Phase II 
reclamation be accomplished.
    This 1982 federal final rule, was originally proposed by OSM on 
December 1, 1981 (46 FR 58464). OSM suggested a change to 30 CFR 
842.11(c)(2), but did not propose a change to 30 CFR 840.11. Then, in 
the 1982 final rule regarding 30 CFR 840.11, four commenters ``wrote 
that the same policy considerations of efficiency in Federal programs 
[should] apply to State programs.'' 47 FR 35620, 35621 (August 16, 
1982). OSM agreed with the commenters and stated that:

    The final rule allows States to distinguish between active and 
inactive mines in the same manner as was proposed and is being 
adopted for OSM when acting as the regulatory authority. This is 
accomplished through * * * new paragraph (f), discussed above. A 
discussion of the comments addressing the question of active and 
inactive mines is found below, under the discussion of 
Sec. 842.11(c).

    Id. OSM, in its discussion of 30 CFR 842.11 responded to commenters 
that wanted the requirement for Phase II bond release deleted because 
it could cause ``OSM to continue monthly inspections long after Phase 
II reclamation is completed.'' 47 FR at 35627 (August 16, 1982).

    OSM agrees. In view of the broad discretion granted to OSM in 
releasing a portion of the performance bond following completion of 
Reclamation Phases I and II, the determination of a mine's status as 
active or inactive should be based solely on the completion of 
Reclamation Phase II. Id. (Emphasis added).

    The Director finds Ohio's proposed deletion consistent with the 
intent of 30 CFR 840.11(f)(2) and therefore, no less effective.
    (A)(2)(c) Ohio is proposing to delete this section pertaining to 
other than permanent program ``D'' permits. Since Ohio no longer has 
any active permits except permanent program permits, and permits 
pertaining to exploration are not subject to the specific inspection 
frequencies, the Director finds that Ohio's proposed rule is consistent 
with 30 CFR 701.1, which requires a permanent regulatory program to 
include subchapter L, which includes Part 840.

IV. Summary and Disposition of Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. Comments were received 
from one Environmental Group in a letter dated July 11. OSM carefully 
considered the comments. Essentially, the commenter opposed the 
amendment on the basis that it would legitimize an already deficient 
inspection frequency in Ohio, and cause additional safety and 
environmental hazards for the public. OSM recognizes the comment, 
however the commenter's concern about inspection frequency is really 
directed toward Ohio's implementation of its approved program, which is 
not the subject of this amendment. The Director notes that recently, 
OSM received a request, pursuant to 30 CFR 733.12(a)(2)(``733 
request''), to evaluate some of the same issues that are raised by the 
commenter. In response to the 733 request, OSM is in the process of 
reviewing the matter.
    The subject of this amendment primarily deals with whether Ohio's 
revised definition of ``inactive coal mining and reclamation 
operation'' is no less effective than the applicable federal 
definition. Ohio's revised definition of ``inactive coal mining 
operations'' requires that Phase II reclamation be completed. For a 
more complete discussion of this amendment, see the Director's 
Findings. The commenter also was concerned that the amendment ``would 
weaken Ohio's ability to adequately monitor surface mining.'' The 
Director disagrees because, even though more mines may be defined as 
inactive, ``OSM has found that, in general, inactive mines present 
fewer problems than active mines, and consequently do not require the 
same frequency of inspections as active mines.'' 47 FR 35620, 35627 
(August 16, 1982). Thus, the amendment would allow the inspection staff 
to devote more resources to active sites that pose a higher risk for 
impacts to the environment.
    Because no one requested an opportunity to speak at a public 
hearing, no hearing was held.

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. No comments 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.). 
None of the revisions that Ohio proposed to make in this amendment 
pertain to air or water quality standards. Therefore, OSM did not 
request EPA's concurrence.

 V. Director's Decision

    Based on the above finding(s), the Director approves the proposed 
amendment as submitted by Ohio on May 17, 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

[[Page 55750]]

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 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.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: September 27, 1996.
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 of part 935 continues to read as follows:

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

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


Sec. 935.15  Approval of regulatory program amendments.

* * * * *
    (cccc) The following rules, as submitted to OSM on May 17, 1996, 
are approved effective October 29, 1996:

OAC 1501:13-14-01(A)(2)(b) (Deleted Portion) Definition of Inactive 
coal mining and reclamation operation
OAC 1501:13-14-01(A)(2)(c) (Deletion) Same

[FR Doc. 96-27600 Filed 10-28-96; 8:45 am]
BILLING CODE 4310-05-M