[Federal Register Volume 69, Number 12 (Tuesday, January 20, 2004)]
[Proposed Rules]
[Pages 2689-2691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1059]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 69, No. 12 / Tuesday, January 20, 2004 / 
Proposed Rules  

[[Page 2689]]



DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-248-FOR]


Ohio Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of a proposed amendment to the Ohio regulatory 
program (the ``Ohio program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Ohio proposes to revise 
their regulatory program to reflect changes promulgated by the U.S. 
Environmental Protection Agency related to coal remining operations. 
Ohio intends to revise its program to be consistent with the 
corresponding Federal regulations.
    This document gives the times and locations that the Ohio program 
and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
(local time), February 19, 2004. If requested, we will hold a public 
hearing on the amendment on February 17, 2004. We will accept requests 
to speak until 4 p.m., local time, on February 4, 2004.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Mr. George Rieger, at the address 
listed below.
    You may review copies of the Ohio program, this amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
Appalachian Regional Coordinating Center.
    Mr. George Rieger, Chief, Pittsburgh Field Division, Office of 
Surface Mining Reclamation and Enforcement, Appalachian Regional 
Coordinating Center, 3 Parkway Center, Pittsburgh, Pennsylvania 15220, 
Telephone: (412) 937-2153. E-mail: [email protected].
    Mr. Robert Baker, Division of Mineral Resources Management, Ohio 
Department of Natural Resources, 1855 Fountain Square Court-Bldg. H-2, 
Columbus, Ohio 43224, Telephone: (614) 265-1092.

FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (412) 937-
2153. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Ohio Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of the Act... and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the Ohio program on August 16, 1982. You can find background 
information on the Ohio program, including the Secretary's findings, 
the disposition of comments, and conditions of approval of the Ohio 
program in the August 16, 1982, Federal Register (47 FR 34687). You can 
also find later actions concerning Ohio's program and program 
amendments at 30 CFR 935.11, 935.15, and 935.16.

II. Description of the Proposed Amendment

    By letter dated November 7, 2003, Ohio sent us a proposed amendment 
to its program (Administrative Record No. OH-2184-00) under SMCRA (30 
U.S.C. 1201 et seq.). Ohio has proposed to revise the Ohio 
Administrative Code (OAC), Sections 1501:13-4-15 and 1501:13-1-02 
relating to coal remining operations and water quality standards so 
that the Ohio program is consistent with the U.S. Environmental 
Protections Agency's (EPA) water quality standards relating to coal 
remining operations. Specific revisions are presented below:
    OAC Section 1501:13-4-15, Authorization to conduct coal mining on 
pollution abatement areas, is amended by adding the following under 
Section 1501:13-4-15(C)(2)(a), (b) and (c):
    (1) If the Chief determines that it is infeasible to collect 
samples for establishing the baseline pollution load and that remining 
will result in significant improvement that would not otherwise occur, 
then the numeric effluent limitations do not apply to the pollution 
abatement area. Pre-existing discharges for which it is infeasible to 
collect samples for determination of baseline pollutant levels include, 
but are not limited to, discharges that exist as a diffuse groundwater 
flow that cannot be assessed via sample collection; a base flow to a 
receiving stream that cannot be monitored separate from the receiving 
stream; a discharge on a steep or hazardous slope that is inaccessible 
for sample collection; a pre-existing discharge that is too large to 
adequately assess via sample collection; or a number of pre-existing 
discharges so extensive that monitoring of individual discharges is 
infeasible.
    (2) If the Chief approves a non-numeric NPDES remining permit the 
operator shall implement a pollution abatement plan incorporating BMP's 
designed to reduce the pollutant levels of acidity, iron, manganese, 
and solids in pre-existing discharges. The monitoring plan will be 
determined by the Chief. An operator who obtains a non-numeric NPDES 
remining permit will not be subject to paragraphs (F)(2), (3), (4), 
(5), (6) and (H)(3)(c) of this section.
    (3) TSS [Total Suspended Solids] and SS [Settleable Solids] are 
exempt during

[[Page 2690]]

mining and reclamation, if the Chief determines it is infeasible or 
impractical based on the site specific conditions of the soil, climate, 
topography, steep slopes, or other baseline conditions provided that 
the operator demonstrates that significant reductions of TSS and SS 
will be achieved through the incorporation of sediment control BMP's 
into the pollutional abatement plan as required under paragraph (C)(4).
    OAC Section 1501:13-4-15(E)(3) which reads ``notify the Chief 
immediately prior to the start and upon completion of each step of the 
abatement plan; and'' has been deleted.
    OAC Section 1501:13-4-15(F)(1) is revised as follows:
    For any pre-existing discharges from or on the pollutional 
abatement area, that are commingled with active mining wastewater, the 
operator shall comply with rule 1501:13-9-04(B) of the Administrative 
Code, until the pollution abatement plan is implemented and the 
commingling is ceased.
    OAC Section 1501:13-4-5(H)(3)(c) has been revised by the addition 
of the phrase ``the total suspended solids meets the standard NPDES 
limits'' at the end of the provision.
    OAC Section 1501:13-1-02. Definitions, include the following 
revisions:
    1. The definition of ``acid water'' is revised to establish that 
the standard is ``6.5, or a total iron concentration equal to or better 
than 10 mg/l''.
    2. The definition of ``Best available technology economically 
achievable'' is revised as ``for remining operations means 
implementation of pollution abatement plan that incorporates Best 
Management Practices (BMP's) designed to improve pH (as acidity) and 
reduce pollutant loadings of iron, manganese and sediment to the 
maximum extent possible from or on the pollution abatement area. (1) 
BMP's are practices implemented during the mining and reclamation of 
remining sites that area designed to reduce, if not completely 
eliminate, the pre-existing water pollution problems. BMP's are 
tailored to specific mining operations based largely on pre-existing 
site conditions, hydrology, and geology. BMP's are designed to function 
in a physical and/or geochemical manner to reduce pollution loadings. 
These BMP measures include engineering, geochemical, daylighting, 
regrading, revegetation, diversion ditches or other applicable 
practices.''
    3. The definition of ``Pollution abatement area'' is revised to 
include ``areas adjacent to and nearby the remining operation that also 
must be affected to reduce the pollution load of the pre-existing 
discharges and may include the immediate location of pre-existing 
discharges''.
    4. The definition of ``Pre-existing discharge'' is revised to add 
``This term shall include a pre-existing discharge that is relocated as 
a result of the implementation of best management practices contained 
in the abatement plan''.
    5. The definition of ``abatement plan'' has been revised by adding 
a reference to ``best management practices'' and an example of 
``daylighting old underground works''.
    6. The definition of ``base line pollution load'' has been revised 
by deleting the reference to ``pH'' and adding ``* * * net acidity, 
total iron and total manganese, and total suspended solids * * *''
    7. The definition of ``Chief'' has been revised to be the ``Chief 
of the Division of Mineral Resources Management''.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the program.

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. We will not consider or respond to your comments 
when developing the final rule if they are received after the close of 
the comment period (see DATES). We will make every attempt to log all 
comments into the administrative record, but comments delivered to an 
address other than the Appalachian Regional Coordinating Center may not 
be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SATS No. OH-248-FOR,'' your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Appalachian Regional 
Coordinating Center at (412) 937-2153.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time, on 
February 4, 2004. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing. To assist the 
transcriber and ensure an accurate record, we request, if possible, 
that each person who speaks at a public hearing provide us with a 
written copy of his or her comments. The public hearing will continue 
on the specified date until everyone scheduled to speak has been given 
an opportunity to be heard. If you are in the audience and have not 
been scheduled to speak and wish to do so, you will be allowed to speak 
after those who have been scheduled. We will end the hearing after 
everyone scheduled to speak and others present in the audience who wish 
to speak, have been heard. If you are disabled and need a special 
accommodation to attend a public hearing, contact the person listed 
under FOR FURTHER INFORMATION CONTACT.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

[[Page 2691]]

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowable 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 the Federal regulations at 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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal program involving 
Indian lands.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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 that 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C.804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, geographic regions, or Federal, State or local governmental 
agencies; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

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: December 18, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 04-1059 Filed 1-16-04; 8:45 am]
BILLING CODE 4310-05-P