[Federal Register Volume 63, Number 233 (Friday, December 4, 1998)]
[Rules and Regulations]
[Pages 66987-66989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32349]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-243-FOR, #76]


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 (Ohio program) under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA). Ohio proposed revisions to its rules pertaining to 
permitting requirements, bond release, and performance standards to be 
consistent with the corresponding Federal regulations.

EFFECTIVE DATE: December 4, 1998.

FOR FURTHER INFORMATION CONTACT: George Rieger, Manager, Pittsburgh 
Oversight and Inspection Office, Appalachian Regional Coordinating 
Center, OSM, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: (412) 
937-2153. Internet: [email protected].

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. You can find background information on the 
Ohio program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval in the August 10, 1982, 
Federal Register (47 FR 34668). You can find later actions on 
conditions of approval and program amendments at 30 CFR 935.11, 935.12, 
935.15, and 935.16.

II. Submission of the Proposed Amendment

    By letter dated December 30, 1997 (Administrative Record No. OH-
2174-05), Ohio submitted a proposed amendment to its program in 
accordance with SMCRA and 30 CFR 732.17(c). Ohio proposes to revise the 
Ohio Administrative Code (OAC) at sections:

1501.13-4-05--Permit Application Requirements
1501.13-4-12--Special Categories of Mining
1501.13-4-14--Underground Permit Application Requirements
1501.13-7-05--Release of Performance Bond
1601.13-9-04--Performance Standards

    We announced receipt of the proposed amendment in the January 23, 
1998, Federal Register (63 FR 3507), invited public comment, and 
provided an opportunity for a public hearing on the adequacy of the 
proposed amendment. The public comment period closed on February 23, 
1998.
    During our review of the amendment, we identified concerns with 
Ohio's rules at OAC 1501 at subsections 13-4-12, 13-4-05, 13-4-14, and 
13-9-04. We notified Ohio of our concerns via electronic mail on May 5, 
1998 (Administrative Record No. OH-2174-11). By letter dated June 2, 
1998 (Administrative Record No. OH-2174-12), Ohio submitted revisions 
at OAC 1501 at subsections:

13-4-05 (H)(1)(c), (H)(2)(c), (H)(6)
13-4-14 (H)(1)(c), (H)(2)(c), (H)(6)
13-9-04 (H)(1)(c)(ii), (H)(1)(d)

to reference the criteria in Natural Resources Conservation Service's 
Technical Release No. 60 (TR 60), ``Earth Dams and Reservoirs,'' 
relating to the provisions of 1513.13(E) (1) and (2).
    During a conference call on July 16, 1998 (Administrative Record 
No. OH-2174-13), we informed Ohio that one issue remained at OAC 
1501:13-4-12. On September 4, 1998, Ohio telefaxed us revisions to 
subsection 13-4-12(F) (Administrative Record No. OH-2174-16).
    Based on these revisions, we reopened the public comment period in 
the October 6, 1998, Federal Register (63 FR 53618). The comment period 
closed on October 21, 1998.

III. Director's Findings

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, are our findings concerning the proposed amendment.
    Any revisions that we do not specifically discuss below concern 
nonsubstantive wording changes or revised cross-references and 
paragraph notations to reflect organizational changes that result from 
this amendment.

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

    The proposed State regulations listed in the table below contain 
language that is the same or similar to the

[[Page 66988]]

corresponding sections of the Federal regulations. Any differences 
between the proposed State regulations and the Federal regulations are 
nonsubstantive.

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             Topic                         State regulation (OAC)                Federal counterpart (30 CFR)
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Permit Application Requirements  1501:13-4-05(H)(1)(a).....................  780.25(a)
Permit Application Requirements  1501.13-4-05(H)(1)(b).....................  780.25(a)(2)
Permit Application Requirements  1501:13-4-05(H)(1)(c).....................  780.25(a)(3)
Permit Application Requirements  1501:13-4-05(H)(2)(c).....................  780.25(c)(3)
Permit Application Requirements  1501:13-4-05(H)(3)(a).....................  780.25(c)
Permit Application Requirements  1501:13-4-05(H)(3)(c).....................  780.25(c)(2)
Permit Application Requirements  1501:13-4-05(H)(6)........................  780.25(f)
Permit Application Requirements  1501:13-4-12(E)...........................  785.16(a)
Requirements for Special         1501:13-4(H)(1)(a)........................  784.16(a)
 Categories Underground Mining.
Permit Application Underground   150:13-4-14(H)(1)(b)......................  784.16(a)(2)
 Mining.
Permit Application Underground   1501:13-4-14(H)(1)(c).....................  784.16(a)(3)
 Mining.
Permit Application Requirements  1501:13-4-14(H)(2)(c).....................  784.16(c)(3)
 Underground Mining.
Permit Application Requirements  1501:13-4-14(H)(3)(a).....................  784.16(c)
 Underground Mining.
Permit Application Requirements  1501:13-4-14(H)(3)(c).....................  784.16(c)(2)
 Underground Mining.
Permit Application Requirements  1501:13-4-14(H)(6)........................  784.16(f)
 Underground Mining.
Permit Application Requirements  1501:13-7-05(A)(2)(a)(iv).................  800.40(a)(3)
 Bond Release.
Protection of Hydrologic System  1501:13-9-04(H)(1)(a).....................  816/817.49(a)(1)
Protection of Hydrologic System  1501:13-9-04(H)(1)(c)(i)..................  816/817.49(a)(4)(i)
Protection of Hydrologic System  1501:13-9-04(H)(1)(c)(ii).................  816/817.49(a)(4)(ii)
Protection of Hydrologic System  1501:13-9-04(H)(1)(d).....................  816/817.49(a)(5)
Protection of Hydrologic System  1501:13-9-04(H)(1)(e)(i)..................  816/817.49(a)(6)(i)
Protection of Hydrologic System  1501:13-9-04(H)(1)(h)(iii)................  816/817.49(a)(ii)(A)
Protection of Hydrologic System  1501:13-9-04(H)(1)(k).....................  816/817.49(a)(12)
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B. Regulations That Ohio Removed From the Ohio Administrative Code 
(OAC)

    Ohio proposed to remove OAC 1501:13-9-04(G)(3)(b)--Sedimentation 
Ponds. We are approving the deletion because Ohio addresses these 
requirements at OAC 1501:13-9-04(H)(1)(h). We find that this change 
does not make the Ohio program less effective than the Federal 
regulations.

C. Revisions to Ohio's Regulations That Are Not Substantively Identical 
to the Corresponding Provisions of the Federal Regulations

    Ohio proposed to add section OAC 1501:13-4-12(F)(4)(e) to prohibit 
a decrease in the aggregate total prime farmland acreage from that 
which existed prior to mining. Any constructed permanent water bodies 
must be located within the post-reclamation non-prime farmland portions 
of the permit area. If the prime farmland acreage is to be restored in 
a location other than the premining location, Ohio must approve the 
relocation. The permittee must obtain the consent of all affected 
landowners. We approve the provisions of this section because they are 
no less effective than 30 CFR 785.17(e)(5).
    Ohio proposed to revise OAC 1501:13-7-05(A)(2)(c)(ii) to require 
that the request for the approval of reclamation phase III includes 
yield data for those acres reclaimed as pasture or grazing land, if 
appropriate. While the Federal regulations at 30 CFR 800.40 do not 
include this specific requirement, we are approving the revision as it 
is not inconsistent with the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    We solicited public comments and provided an opportunity for a 
public hearing on the proposed amendment. Because no one requested an 
opportunity to speak at a public hearing, no hearing was held. Two 
public comments were received. One commenter requested a copy of the 
specific language being proposed at OAC 1501:13-4-12(E). He also 
suggested that OAC 1501:13-9-4(H) include a notification of MSHA 
provision. We note that the Federal regulations at 30 816/817.49(a)(9) 
do not have this requirement. The second commenter questioned the 15-
day comment period. She thought 30 days was required. We note that the 
shorter comment period appeared in the second Federal Register notice 
which re-opened the comment period. 30 CFR 732.17(h)(3) provides for a 
15-day comment period under certain circumstances. The commenter also 
submitted a list of questions which generally addressed the effects of 
the proposed amendment on the landowner, industry, and the community at 
large. We note that amendments are reviewed based on consistency with 
the Federal regulations and accordance with the provisions of SMCRA. As 
discussed in Section V above, Ohio's proposed amendment is approved 
because it meets those standards.

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Ohio program. The Department of Labor, Mine 
Safety and Health Administration, and the Department of the Army, Army 
Corps of Engineers, both concurred without comment.

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 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, we approve the proposed amendment as 
submitted by Ohio on December 30, 1997 and revised on June 2, 1998 and

[[Page 66989]]

September 4, 1998. We approve the rules that Ohio proposed with the 
provision that they be fully placed in force in identical form to the 
rules submitted to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 935 which codifies decisions concerning the Ohio 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Ohio to 
bring its program 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 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

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act and 526DM. This rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment.

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 Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), this rule will not produce a Federal mandate of $100 million 
or greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

List of Subjects in 30 CFR 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 13, 1998.
Allen D. Klein,
Assistant 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.

* * * * *

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 Original amendment submission    Date of final
             date                  publication                                              Citation/description
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                 *                  *                  *                    *                    *                  *                  *
December 30, 1997.............  December 4, 1998.  OAC 1501:13-4-05, 1501:13-4-12, 1501:13-4-14, 1501: 13-7-05, 1501:13-9-04.
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[FR Doc. 98-32349 Filed 12-3-98; 8:45 am]
BILLING CODE 4310-05-P