[Federal Register Volume 64, Number 224 (Monday, November 22, 1999)]
[Rules and Regulations]
[Pages 63688-63690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30356]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-246-FOR]


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 (Ohio program) under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA). Ohio is proposing revisions to section 1501:13-1-
04 of the Ohio Administrative Code (OAC) as it relates to exemptions 
for coal extraction incidental to government-financed highway or other 
construction. The amendment is intended to revise the Ohio program to 
include counterparts to the recently promulgated ``AML Enhancement 
Rule,'' which revised the Federal regulations at 30 CFR 707.5 and added 
a new provision, at 30 CFR 874.17.

EFFECTIVE DATE: November 22, 1999.

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. 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 34688). You can find later actions on 
conditions of approval and program amendments at 30 CFR 935.11, 935.15, 
and 935.16.

II. Submission of the Proposed Amendment

    By letter dated March 16, 1999 (Administrative Record No. OH-2178-
00) Ohio submitted a proposed amendment to its program concerning 
exemptions for coal extraction incidental to government-financed 
highway or other construction. Ohio submitted the proposed amendment at 
its own initiative, in order to incorporate into its program the 
expanded exemption recently promulgated in the Federal regulations at 
30 CFR 707.5, as part of the ``AML Enhancement Rule.'' Under this rule, 
approved Title IV abandoned mine land (AML) projects under SMCRA which 
involve incidental coal extraction and are less than 50 percent 
government financed may qualify for exemption. Projects which qualify 
for this expanded exemption must also meet the newly promulgated 
requirements contained in 30 CFR 874.17. (64 FR 7470, February 12, 
1999). The proposed amendment was announced in the April 16, 1999, 
Federal Register (64 FR 18857). The initial comment period closed on 
May 17, 1999.
    By letter dated July 9, 1999 (Administrative Record No. OH-2178-
06), Ohio submitted a revised and final version of the proposed 
amendment. Ohio made this more recent submittal in response to an OSM, 
July 1, 1999, issue letter (Administrative Record No. OH-2178-05). In 
the letter, OSM had requested that the amendment clearly restrict 
exemptions to projects that are AML eligible, and clearly require that 
the exempted reclamation project be conducted in accordance with the 
provisions of 30 CFR Subchapter R.

III. Director's Findings

    The following are changes to OAC Section 1501:13-1-04 made in the 
final submission of the proposed amendment. Revisions concerning 
nonsubstantive wording, format, or organizational changes will not be 
described in this notice.
    OAC 1501:13-1-04 Exemption for coal extraction incidental to 
government financed highway or other construction.

[[Page 63689]]

    (a) The following sentence has been added to Subsection (A) (3): 
``Funding at less than 50 percent may qualify if the project is 
eligible under 1513:37 of the revised code and the construction is 
undertaken as an approved reclamation project under Section 1513.30 or 
1513.37 of the Revised Code.''
    (b) New Subsection (C) is added and reads as follows:
    (C) Requirements for approved reclamation projects under section 
1513.30 and 1513.37 of the Revised Code with less than 50 percent 
government financing.

(1) Determinations. The Division of Mines and Reclamation shall 
determine:
    (i) The likelihood of the coal being mined under a permit issued 
under Section 1513.07 of the Revised Code considering the coal reserves 
from existing mine maps or other sources, the existing environmental 
conditions, all prior mining activity on or adjacent to the site, 
current and historic coal production in the area, and any known or 
anticipated interest in mining the site;
    (ii) The likelihood that nearby or adjacent mining activities might 
create new environmental problems or adversely affect existing 
environmental problems at the site; and
    (iii) The likelihood that reclamation activities at the site might 
adversely affect nearby or adjacent mining activities.
(2) Concurrence. The regulatory program coordinator and the abandoned 
mine lands program coordinator must concur on determinations of the 
limits on any coal refuse, coal waste, or other coal deposits which can 
be extracted under this exemption and in the delineation of the 
boundaries of the AML project.
(3) Documentation. The AML case file must include the determinations 
made under paragraph (1) and (2) of this rule, the information taken 
into account in making these determinations, and the names of the 
parties making the determinations.
(4) Special Requirements. For each exempt project the division must:
    (i) Characterize the site in terms of mine drainage, active slides 
and slide-prone areas, erosion and sedimentation, vegetation, toxic 
materials, and hydrologic balance;
    (ii) Ensure that the reclamation project is conducted in accordance 
with the provisions of the AML program and procedures as approved by 
the U.S. Secretary of Interior under 30 CFR Subchapter R;
    (iii) Develop site-specific reclamation requirements, including 
performance bonds when appropriate in accordance with approved AML 
procedures; and
    (iv) Require the contractor conducting the reclamation to provide 
prior to the time reclamation begins applicable documents that clearly 
authorize the extraction of coal and payment of royalties.
(5) Limitations. If the reclamation contractor extracts coal beyond the 
limits of the incidental coal specified in paragraph (C)(2) of this 
rule, the contractor must obtain a permit under section 1513.07 of the 
Revised Code for such coal.

    The changes described above revise the OAC to correspond with 
revisions to the Code of Federal Regulations at 30 CFR 707 and 874 as 
published in the February 12, 1999, Federal Register, 64 FR 7470. The 
Director finds that the revisions do not render OAC section 1501:13-1-
04 inconsistent with section 528 (2) of SMCRA (30 U.S.C. 1278), and 
that they are substantively identical to the changes to the Federal 
regulatory definition of ``government-financed construction'' at 30 CFR 
707.5 and to the Federal provision at 30 CFR 874.17, both of which were 
promulgated on February 12, 1999. 64 FR 6470.

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. Because no one 
requested an opportunity to speak at a public hearing, no hearing was 
held. No comments were received.

Ohio Historical Preservation Office (OHPO)

    Pursuant to 30 CFR 732.17(h)(4), the Director solicited comments on 
the proposed amendment from the OHPO with respect to actual or 
potential effects of the amendment on historic and cultural properties 
in the state. In accordance with the National Historic Preservation Act 
(NHPA), as amended (16 U.S.C. 470), the OHPO recommended the addition 
of language to the amendment to ensure the review determinations 
include the completion of coordination with the OHPO prior to 
initiation of the excavation and/or reclamation activities 
(Administrative Record No. OH-2178-04).
    In response, we note that the consultation requirements of the NHPA 
will apply if the approval of a reclamation project involving 
incidental coal extraction constitutes a ``Federal undertaking,'' as 
that term is defined at 36 CFR 800.2(o). Therefore, we do not believe 
the additional language recommended by the OHPA is necessary. Moreover, 
as discussed in the Finding above, the proposed amendment is 
substantively identical to its Federal counterparts at 30 CFR 707.5 and 
874.17.

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. The Department of 
the Army, Army Corps of Engineers, concurred without comment 
(Administrative Record No. OH-2178-02). No other 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 Ohio proposed to make in its amendment 
pertains to air or water quality standards. Nevertheless, OSM requested 
EPA's comments on the proposed amendment. EPA had no comments to offer 
(Administrative Record OH-2178-03).

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as revised on July 9, 1999.
    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).

[[Page 63690]]

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 
counterpart 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 counterpart Federal regulations.

Unfunded Mandates

    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 Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 8, 1999.
Allen D. Klein,
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       Date of final publication             Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                *                  *                  *
                                                        *
March 16, 1999...........................  November 22, 1999...........  OAC 1501:13-1-04
----------------------------------------------------------------------------------------------------------------

[FR Doc. 99-30356 Filed 11-19-99; 8:45 am]
BILLING CODE 4310-05-P