[Federal Register Volume 63, Number 188 (Tuesday, September 29, 1998)]
[Rules and Regulations]
[Pages 51829-51833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25980]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-218-FOR; Amendment Number 61]


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 an amendment to the Ohio regulatory program 
(hereinafter referred to as the ``Ohio program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). This amendment 
provides that areas reclaimed following the removal of temporary 
structures that are part of the sediment control system, such as 
sedimentation ponds and diversions, are not subject to a revegetation 
responsibility period and bond liability period separate from that of 
the permit area or increment thereof served by such facilities. The 
amendment also authorizes as a husbandry practice, the repair of damage 
to land and/or established permanent vegetation that has been 
unavoidably disturbed, that does not restart the revegetation 
responsibility period. The amendment is intended to improve operational 
efficiency of the Ohio program.

EFFECTIVE DATE: September 29, 1998.

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

[[Page 51830]]

amendments can be found at 30 CFR 935.11, 935.15, and 935.16.

II. Submission of the Proposed Amendment

    By letter dated February 11, 1993 (Administrative Record No. OH-
1831), Ohio submitted proposed Program Amendment Number 61 concerning 
augmentative practices. OSM announced receipt of this amendment in the 
April 1, 1993, Federal Register (58 FR 17173) and, in the same notice, 
opened the public comment period and provided opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on May 3, 1993. Since no one requested an opportunity to 
provide testimony at a public hearing, no hearing was held.
    By letter dated June 11, 1993 (Administrative Record No. OH-1888), 
Ohio submitted additional revisions to this proposed amendment 
(ProgramAmendment Number 61R). OSM announced receipt of the revised 
amendment in the July 6, 1993, Federal Register (58 FR 36177), and, in 
the same notice, reopened the public comment period and again provided 
an opportunity for a public hearing. The public comment period closed 
on July 21, 1993. On August 16, 1993 (58 FR 43261), OSM approved most 
of the proposed amendment, but deferred decision on Ohio Administrative 
Code (OAC) 1501:13-9-15(F)(5), (6), and (7) concerning nonaugmentative 
practices.
    OSM reopened a public comment period on September 15, 1993 (58 FR 
48333) for the provisions OAC 1501:13-9-15(F)(6) and (7) as originally 
submitted on February 11, 1993, and revised on June 11, 1993, with 
regard to removal of sedimentation ponds and associated areas. The 
comment period closed on October 15, 1993. This notice also included 
similar proposed revisions to the Kentucky and Illinois regulations as 
well as a discussion of OSM's proposed policy concerning restart of the 
revegetation responsibility period upon removal of required sedimentary 
control structures. Subsequently, in the May 29, 1996, Federal Register 
(61 FR 26792), and in the October 22, 1997 Federal Register (62 FR 
54765) OSM approved similar proposed revisions to the Colorado and 
Illinois regulations (respectively), based on the adoption of the 
proposed OSM policy published on September 15, 1993 (58 FR 48333).
    By letter dated April 14, 1998 (Administrative Record Number OH-
2175-00), Ohio submitted revised language of the Program Amendment # 
61R. Subsection OAC 1501:13-9-15(F)(4)(c) provides for practices that 
will not be considered augmentative when the practice and the rate of 
application is an accepted local practice for comparable unmined lands 
that can be expected to continue as a postmining practice. Subsection 
(F)(5) provides for the nonaugmentative repair of areas that held 
required sediment control structures. Subsection (F)(6) provides the 
minimum time that vegetation established or reestablished under 
subsections (F)(4)(c) and (F)(5) must have been seeded prior to a 
request for Phase III bond release.
    On April 29, 1998 (63 FR 23405), OSM reopened the public comment 
period and solicited comments on the proposed provisions submitted on 
April 14, 1998. The comment period closed on May 29, 1998. No one 
requested an opportunity to testify at a public hearing, so none was 
held.

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 amendments.

OAC 1501:13-9-15(F)(4)

    Existing subsections OAC 1501:13-9-15(F)(4)(c) and (d) have been 
redesignated subsections (d) and (e), respectively, and new subsection 
(c) has been added to read as follows.

    (c) Reseeding and adding soil amendments when necessary to 
repair damage to land and/or established permanent vegetation, that 
is unavoidably disturbed in order to meet the reclamation standards 
of this chapter, provided that:
    (I) The damage is not caused by a lack of planning, design, or 
implementation of the mining and reclamation plan, inappropriate 
reclamation practices on the part of the permittee, or the lack of 
established permanent vegetation; and
    (II) The total acreage of repaired areas under paragraphs 
(F)(4)(b) & (c) of this rule does not exceed ten percent of the 
total land affected, with no individual area exceeding three acres.

    As amended, subsection 1501:13-9-15(F)(4)(c) authorizes as a 
husbandry practice that does not restart the revegetation 
responsibility period, the repair of damage to land and/or established 
permanent vegetation that has been unavoidably disturbed. The Federal 
regulations at 30 CFR 816.116(c)(4) provide for the approval of such 
husbandry practices provided that such practices can be expected to 
continue as part of the postmining land use, or if discontinuance of 
the practices after the liability period expires will not reduce the 
probability of permanent revegetation success.
    In its submittal of this amendment, Ohio asserted that if land is 
damaged for any reason, careful management of that land would dictate 
that the damage is repaired. Repair of most damage to land involves a 
disturbance to established vegetation or ground cover. Once vegetation 
or ground cover is disturbed or destroyed, normal maintenance practice 
would be to replace the established vegetation through seeding, 
sodding, or some other practice necessary to reestablish the damaged 
vegetation.
    Ohio further stated that it has been its experience that many 
reclaimed sites will experience some type of damage to established 
vegetation at some point during the period of extended responsibility 
period. Examples of such damage would include erosion, small slips, 
channel erosion, unauthorized access, landowner tillage, and 
settlement. This damage is not normally a result of failure of 
vegetation or inadequate vegetation practices, and the degree of damage 
varies from site to site. In fact, the proposed amendment requires that 
the damage not be caused by a lack of planning, design, or 
implementation of the mining and reclamation plan, inappropriate 
reclamation practices on the part of the permittee, or the lack of 
established permanent vegetation. Further, Ohio asserted that it is 
proposing reasonable size limitations on the repairs that can be made 
that will not restart the revegetation responsibility period. In 
addition, all vegetation cover and productivity standards must be met, 
and any repaired areas must meet a maintenance period of at least one 
year after repaired areas are seeded before final bond release. These 
additional standards, the State asserts, will ensure that all 
vegetation is successful prior to bond release.
    The Director agrees that, considering the limitations provided for 
by Ohio as to cause of the damage to land and size, the proposed 
husbandry practice is reasonable, and that repair of the damage as 
explained by the State is a normal husbandry practice in Ohio. The 
Director also concurs with the State's assertion that to achieve bond 
release, all the Ohio program's vegetation cover and productivity 
standards must be met. Therefore, the Director finds that proposed OAC 
1501:13-9-15(F)(4) is not inconsistent with SMCRA section 515(b)(20)(A) 
and no less effective than the Federal regulations at 30 CFR 
816.116(c).

OAC 1501:13-9-15(F)(5)

    Subsection OAC 1501:13-9-15(F)(5) has been amended to provide that

[[Page 51831]]

reseeding of areas that have been unavoidably disturbed in the course 
of gaining access for removal of structures that are part of the 
sediment control system or initial seeding of areas upon which the 
sediment control system was located and subsequently removed will not 
restart the period of extended responsibility for revegetation success.
    In the past, OSM has either disapproved or taken no action on 
proposed State program amendment provisions that would have specified 
that areas reclaimed following the removal of siltation structures and 
associated diversions are not subject to a revegetation responsibility 
period and bond liability period separate from that of the permit area 
or increment thereof served by such facilities. In response to this 
program amendment and similar recent program amendments from other 
States, and to concerns raised by other parties, OSM has reconsidered 
its position on this issue.
a. OSM's Policy Concerning the Term of Liability for Reclamation of 
Temporary Sediment Control Facilities
    Section 515(b)(20) of SMCRA provides that the revegetation 
responsibility period shall commence ``after the last year of augmented 
seeding, fertilizing, irrigation, or other work'' needed to assure 
revegetation success. In the absence of any indication of Congressional 
intent in the legislative history, OSM interprets this requirement as 
applying to the increment or permit area as a whole, not individually 
to those lands within the permit area upon which revegetation is 
delayed solely because of their use in support of the reclamation 
effort on the planted area.
    As implied in the preamble discussion of 30 CFR 816.46(b)(5), which 
prohibits the removal of ponds or other siltation structures until 2 
years after the last augmented seeding, planting of the sites from 
which such structures are removed need not itself be considered an 
augmented seeding necessitating an extended or separate liability 
period (48 FR 44038-44039; September 26, 1983). Indeed, given the 
Federal regulation that prohibits removal of sediment ponds until two 
years after the last augmented seeding, restarting the five year 
responsibility period when a sediment pond is removed would result in 
the responsibility period being a minimum of seven years in all cases. 
This is clearly not consistent with the five year minimum period 
mandated by SMCRA at section 515(b)(20)(A).
    The purpose of the revegetation responsibility period is to ensure 
that the mined area has been reclaimed to a condition capable of 
supporting the desired permanent vegetation. Achievement of this 
purpose will not be adversely affected by this interpretation of 
section 515(b)(20) of SMCRA since (1) the lands involved are small in 
size and widely dispersed and (2) the delay in establishing 
revegetation on these sites is due not to reclamation deficiencies or 
the facilitation of mining, but rather to the regulatory requirement 
that ponds and diversions be retained and maintained to control runoff 
from the planted area until the revegetation is sufficiently 
established to render such structures unnecessary for the protection of 
water quality.
    In addition, the areas affected likely would be no larger than 
those which could be reseeded (without restarting the revegetation 
period) in the course of performing normal husbandry practices, as that 
term is defined in 30 CFR 816.116(c)(4) and explained in the preamble 
to that rule (53 FR 34636, 34641; September 7, 1988; 52 FR 28012, 
28016; July 27, 1987). Areas this small would have a negligible impact 
on any evaluation of the permit area as a whole. Most importantly, this 
interpretation is unlikely to adversely affect the regulatory 
authority's ability to make a statistically valid determination as to 
whether a diverse, effective permanent vegetative cover has been 
successfully established in accordance with the appropriate 
revegetation success standards. From a practical standpoint, it is 
usually difficult to identify precisely where such areas are located in 
the field once revegetation is established in accordance with the 
approved reclamation plan.
    The above discussion of the rules in 30 CFR Part 816, which applies 
to surface mining activities, also pertains to similarly or identically 
constructed section in 30 CFR Part 817, which applies to underground 
mining activities.
b. Comparison of Ohio's Proposed Provision OAC 1501:13-9-15(F)(5) with 
OSM's Policy Clarification
    Ohio proposes to allow, as a nonaugmentative practice, the 
reseeding of areas that have been unavoidably disturbed in the course 
of gaining access for removal of structures that are part of the 
sediment control system or for initial seeding of areas upon which the 
sediment control system was located and subsequently removed. Ohio's 
reference to areas that have been unavoidably disturbed in the course 
of gaining access for removal of sediment control structures is 
interpreted by OSM to include those roads necessary for maintenance of 
sediment ponds, diversions, and reclamation areas. However, such roads 
would not include haul roads or other primary roads which should either 
have been removed upon completion of mining or approved to be retained 
for an approved postmining land use.
    Since the Ohio provision is limited to sediment control structures 
and to areas unavoidably disturbed to gain access to those sediment 
control structures this provision is consistent with the OSM policy 
stated above. As interpreted in the policy statement above, the removal 
of sediment ponds and related structures is a nonaugmentative practice 
that does not restart the five-year responsibility period. Therefore, 
the Director finds that proposed OAC 1501:13-9-15(F)(5) is not 
inconsistent with SMCRA section 515(b)(20)(A) and no less effective 
than the Federal regulations at 30 CFR 816.116(c).

OAC 1501:13-9-15(F)(6)

    Subsection OAC 1501:13-9-15(F)(6) has been amended to provide that 
for the purposes of paragraphs (F)(4)(c) and (F)(5) of this rule, 
permanent vegetation that is established or reestablished on these 
areas must have been seeded a minimum of twelve months prior to the 
request for Phase III bond release.
    As discussed above, the Federal regulations provide that sediment 
ponds and diversions be retained and maintained to control runoff from 
the planted area until the revegetation is sufficiently established to 
render such structures unnecessary for the protection of water quality. 
Therefore, when the sediment control structures are removed, the 
surrounding drainage area has already been effectively revegetated. 
Following this, the entire revegetated area (or increment thereof), 
including the reclaimed area where the sediment control structure was 
located, is subject to the full Ohio program requirements concerning 
final inspection for bond release. The same is true for areas that have 
been repaired under approved husbandry practices. That is, the proposed 
12-month criterion in no way reduces or eliminates any of Ohio's 
standards for reclamation success for bond release. The Director 
believes that the 12-month criterion should be sufficient to establish 
a permanent and diverse vegetative cover as is required by SMCRA 
section 515(b)(19), especially since the lands typically involved will 
be small in size, widely dispersed, and surrounded by revegetated 
lands.
    Therefore, the Director finds that the proposed provision at OAC 
1501:13-9-15(F)(6), as it pertains to OAC 1501:13-

[[Page 51832]]

9-15(F)(4)(c) and (F)(5) is not inconsistent with SMCRA section 
515(b)(19) and can be approved.

IV. Summary and Disposition of Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment and OSM's proposed 
policy.
    Comments were received from the Kentucky Coal Association, the 
North Dakota Public Service Commission, the Ohio Mining and Reclamation 
Association, the Buckeye Industrial Mining Co., the R&F Coal Company, 
the Lignite Energy Council, the National Coal Association, the Kentucky 
Resources Council, and the Ohio Department of Natural Resources. Except 
for the Kentucky Resources Council, all of the commenters were in favor 
of the policy.
    In response to the Director's proposed clarification of OSM policy, 
the Kentucky Resources Council initiates its comments with the premise 
that OSM has proposed to treat the initial seeding and restoration of 
areas disturbed by diversions, roads and sedimentation ponds as 
``normal husbandry practices.'' It then argues that the initial seeding 
of such areas is not normal husbandry practice, and any revegetation 
other than ``husbandry practices'' as defined by 30 CFR 816.116(c)(4) 
constitutes ``augmented seeding'' and would therefore require extension 
of the full liability period for the establishment of permanent 
vegetation. First, the Director did not base not restarting the 
liability period on the contention that revegetation of such areas is a 
normal husbandry practice. Second, the Director does not agree that any 
revegetation other than ``normal husbandry practices'' constitutes 
``augmented seeding.'' The legislative history of the Act reveals no 
specific Congressional intent in the use of the term ``augmented 
seeding.'' Accordingly, OSM's interpretation of augmented seeding is 
given deference so long as it has a rational basis. OSM would not 
consider the seeding of small areas, such as ponds and their associated 
diversions and roads, as augmented seeding. However, only the 
reclamation and reseeding of ancillary roads and not haul roads would 
be considered nonaugmentative. For further discussion of such 
rationale, see the Director's Finding above. Areas reclaimed following 
removal of temporary sediment control, and associated structures such 
as diversions, disposal and storage areas for accumulated sediments and 
sediment pond embankment material, and ancillary roads used to access 
such areas would not be subject to a separate or extended bond 
liability period apart from the applicable permit area served by such 
structures. The seeding of sedimentation ponds and their associated 
diversions and roads is not the result of reclamation failure, but 
because 30 CFR 816.46(b)(5) prohibits the removal of temporary 
sedimentation ponds until two years after the last augmented seeding.
    The Kentucky Resources Council overlooks the fact that for the vast 
majority of the reclaimed area the revegetation responsibility period 
will be at least five years. Neither Congressional history nor the 
language of the statute distinguishes between initial overall 
reclamation of a mined area and the subsequent restoration of temporary 
structures like sedimentation ponds and their associated areas. In the 
absence of such distinction, the Secretary is delegated discretion to 
determine whether a proposed state amendment is no less effective than 
the Act and consistent with the counterpart Federal regulation. The 
Director's stated interpretation of Section 515(b)(20) is that the 
period of revegetation responsibility applies ``to the increment or 
permit area as a whole, not individually to those lands within that 
area upon which revegetation is delayed solely because of their use in 
support of the reclamation effort of the planted area.'' See 58 FR 
48333-48335, September 15, 1993.
    OSM has taken a consistent position in approving an amendment to 
the Colorado (61 FR 26792, May 29, 1996) and Illinois (62 FR 54765, 
October 22, 1997) surface mining programs which provided that reclaimed 
temporary drainage control facilities shall not be subject to the 
extended liability period for revegetative success or the related bond 
release criteria. The Director, therefore, does not agree with the 
commenter's interpretation of Section 515(b)(20) of SMCRA.
    The Kentucky Resources Council also asserts that OSM's position 
violates 30 CFR 816.133. Section 816.133 requires that disturbed areas 
be restored in a timely manner to the premining uses of land or higher 
or better uses. In response, the Director notes that the Ohio amendment 
does not eliminate this requirement.

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. Comments were 
received from the U.S. Forest Service and the U.S. Bureau of Mines. The 
U.S. Forest Service commented that it had reviewed OSM's proposed rule 
to clarify its policy towards revegetation success and agreed with the 
proposed rule.
    The U.S. Bureau of Mines suggested that OSM consider the 
significant differences in the reclamation of sediment structures and 
roads, since sediment structures generally possess characteristics 
necessary for successful reclamation, while roads generally require 
significant initial work to develop a necessary growth environment. OSM 
agrees with the commenter. OSM's policy and Ohio's regulations require 
that when such structures are removed, the land on which they were 
located must be regraded and revegetated in accordance with approved 
plans and the requirements of 30 CFR 816.111 through 816.116, or State 
counterparts. Because the Ohio program amendment limits the reclamation 
and reseeding to small areas (those areas that have been unavoidably 
disturbed in the course of gaining access for removal of sediment 
control structures) roads posing significant potential for reclamation 
problems will be excluded.

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.). The 
proposed Ohio amendment does not pertain to air or water quality 
standards and, therefore, EPA's concurrence is not required.
    Pursuant to 732.17(h)(11)(I), OSM solicited comments on the 
proposed amendment from the EPA. The EPA responded and concurred 
without comment on October 18, 1993 (Administrative Record No. KY-1246) 
.

V. Director's Decision

    Based on the above findings, the Director approves Ohio's 
regulations at OAC 1501:13-9-15(F)(4)(c), (F)(5), and (F6).
    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.

[[Page 51833]]

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 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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.

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 Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 16, 1998.
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 in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 935.15  Approval of Ohio regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
*                  *                  *                  *
                  *                  *                  *
February 11, 1993.............  September 29,      OAC 1501:13-9-
                                 1998.              15(F)(4)(c), (F)(5),
                                                    and (F)(6).
------------------------------------------------------------------------

[FR Doc. 98-25980 Filed 9-28-98; 8:45 am]
BILLING CODE 4310-05-P