[Federal Register Volume 62, Number 8 (Monday, January 13, 1997)]
[Rules and Regulations]
[Pages 1668-1674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-709]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-204; Amendment Number 54]
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 (hereinafter referred to as the ``Ohio program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Ohio
proposed revisions pertaining to twenty-two sections of the Ohio
Revised Code (ORC) to clarify those sections of State law, to conform
those sections to current State practices, and to make those sections
equivalent to corresponding Federal laws. The revisions concern
confidential information on incidental coal
[[Page 1669]]
extraction, the Reclamation Supplemental Forfeiture Fund, use of the
Reclamation Supplemental Forfeiture Fund and for non-coal reclamation,
the Coal Mining Performance Bond Fund, limitations on the awards of
costs and expenses, reclamation contracts with surface mine operators,
reclamation of interim forfeiture and insolvent surety sites, use of
police powers, AML reclamation liens, the Acid Mine Drainage Abatement
and Treatment Fund, lands eligible for remining, average wage rates,
deletion of obsolete language on interim continuance of underground
coal mining operations, activities eligible for Small Operator
Assistance, required staff training, and informal review of issues as a
form of alternative dispute resolution.
EFFECTIVE DATE: January 13, 1997.
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 February 7, 1992 (Administrative Record No. OH-
1645), as modified by letter dated February 27, 1992 (Administrative
Record No. OH-1657), Ohio submitted proposed Program Amendment Number
54 (PA54). In PA 54, Ohio proposed to revise 13 sections of the ORC
concerning a number of regulatory and AML issues. OSM announced receipt
of PA 54 in the April 13, 1992, Federal Register (57 FR 12779), 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 ended on May 13, 1992.
By letter dated June 15, 1992 (Administrative Record No. OH-1714),
OSM provided Ohio with its questions and comments about the February 7,
1992, submission of PA 54. On July 20, 1992, OSM and Ohio staff met to
discuss and resolve OSM's questions and comments (Administrative Record
No. OH-1746). On July 28, 1992, OSM and Ohio staff further resolved
some of those issues in a telephone conversation (Administrative Record
No. OH-1754).
In response to OSM's June 15, 1992, letter, Ohio submitted Revised
Program Amendment Number 54 (PA 54R) by letter dated September 2, 1992
(Administrative Record No. OH-1769). PA 54R contained further revisions
to seven sections of the ORC. OSM announced receipt of PA 54R in the
October 28, 1992, Federal Register (57 FR 48765), 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 ended on November 27, 1992.
On December 16, 1992 (Administrative Record No. OH-1800), OSM and
Ohio staff conducted a telephone discussion of the September 2, 1992,
resubmission of PA 54R. On April 30, 1993, OSM and Ohio staff met
informally to discuss the status of the amendment with respect to the
State's legislative process.
In the June 11, 1993, Federal Register (58 FR 32611), the Director
of OSM announced his decision to defer Ohio PA 54R with the exception
of the Director's approval of one proposed change at ORC section
1513.02(F)(3) which the Ohio General Assembly was likely to pass in its
current form. The Director made this decision because the Ohio
Legislative Service Commission had not yet drafted the final statutory
language on which PA 54R would ultimately be based and because that
language would not be available for review by OSM within the
foreseeable future.
By letter dated March 31, 1995 (Administrative Record No. OH-2107),
Ohio submitted the final version of PA 54 (PA542R2). This final version
contains the statutory changes approved by the Ohio General Assembly in
Senate Bill 180 and in House Bill 414. The two bills were signed by the
Ohio Governor on December 23, 1992, and December 27, 1994,
respectively. The revised statutes went into effect on March 24, 1993,
and March 27, 1995, respectively.
Ohio's March 31, 1995, final submission of PA 54R reiterated many
of the statute changes previously proposed in PA 54 and PA 54R, and
withdrew its proposal to amend ORC Sections 1513.10 and 1513.07
pertaining to Refunds of Permit Fees as well as Interfund Transfers.
Portions of other sections were likewise withdrawn as discussed in
their respective sections below. The March 31, 1995 submission also
proposed new changes to ten sections of the ORC. OSM discussed all
proposed changes in the April 13, 1992, October 28, 1992, and April 17,
1995 Federal Register documents concerning the submissions of PA 54, PA
54R and PA 54R2, respectively. An issue letter was sent to Ohio on
August 2, 1995 and a conference call was held on August 29, 1995.
Further discussions were held during 1996. Statute changes which solely
concern Ohio's non-coal regulatory program are outside the jurisdiction
of OSM and are not discussed below. Also, changes to paragraph
notations and nonsubstantive wording changes are not discussed.
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.
1. Confidential Information Regarding Exemption Requests for Incidental
Coal Extraction
ORC 1513.07 paragraph (D)(2): Ohio is revising this paragraph to
specify that, for exemption requests for incidental coal extraction,
confidential information includes and is limited to information
concerning trade secrets or privileged commercial or financial
information relating to the competitive rights of the persons intending
to conduct the extraction of minerals. The corresponding Federal rule
at 30 CFR 702.13 requires that the person request, in writing, that the
information be kept confidential. While Ohio's proposed statute change
does not include this requirement, Ohio's Administrative Code Section
1501:13-4-16(J)(2) corresponds with the Federal rule at 30 CFR
702.13(b). Therefore, the proposed change to the statute in conjunction
with Ohio's existing Administrative Code Section is no less effective
than the corresponding Federal Regulations at 30 CFR 702.13(b).
2. Reclamation Supplemental Forfeiture Fund
Ohio is revising ORC 1513.08 paragraph (A) and proposing a new
paragraph ORC 1513.18(D) to move the current language creating the
Reclamation Supplemental Forfeiture
[[Page 1670]]
Fund from that portion of the Ohio law dealing with performance bonds
to that portion of the law dealing with reclamation by the Division.
Ohio also proposed adding a new provision which would allow the
Division to use funds from the Reclamation Supplemental Forfeiture Fund
to reclaim areas which were affected by non-coal mining under surface
mining permits issued under ORC Chapter 1514, but which the operator
did not adequately reclaim. In its March 31, 1995, final version of PA
54R, Ohio is withdrawing the portion of the proposed language referring
to ORC Chapter 1514 from new paragraph (D). Ohio is also removing the
fund name from the heading of the section.
ORC 1514.06 paragraph (G): Ohio is proposing to revise this
paragraph in lieu of the previously proposed revision discussed above
which Ohio is withdrawing from ORC section 1513.18 paragraph (D). The
revision to ORC section 1514.06 paragraph (G) would provide that Ohio
may expend money from the Reclamation Supplemental Forfeiture Fund or
from the Surface Mining Administration Fund to complete reclamation on
land affected by non-coal surface mining operations on which an
operator has defaulted.
Ohio is also revising ORC Section 1513.18(E) to be consistent with
the move of the aforementioned language to ORC Section 1513.18(D).
ORC section 1513.18 paragraph (D): Ohio is adding a statement in
this paragraph concerning the State's priority for management of the
Reclamation Supplemental Forfeiture Fund, including the selection of
projects and the transfer or moneys. That priority shall be to ensure
that sufficient moneys are available for reclamation of areas that an
operator has affected under a coal mining and reclamation permit issued
after September 1, 1981, and which the operator has failed to reclaim.
This statement was added in response to the director's concerns that
Reclamation Supplemental Forfeiture Fund expenditures on non-coal
mining sites could compromise the Fund's solvency as an alternative
bonding system to be used for the reclamation of surface coal mining
sites. The Director is now satisfied that Ohio will continue to use
Fund moneys to reclaim all existing coal mining sites for which bonds
have been forfeited, prior to using any such moneys to reclaim non-coal
mining sites.
The proposed changes are found to be consistent with the
corresponding Federal Regulations at 30 CFR 800.11(e), pertaining to
alternative bonding systems.
3. Coal Mining Performance Bond Fund
ORC 1513.081: Ohio is repealing this existing section which created
the Coal Mining Performance Bond Fund. Language in this section also
authorized the issuance of reclamation performance bonds by the Chief
using money from the fund, determined premiums and fees for
participation in the fund, and provided for the release and forfeiture
of reclamation performance bonds supported by the fund.
Ohio proposed to add ORC section 1513.081 to the Ohio program as
part of the November 16, 1987 submission of proposed Ohio Program
Amendment Number 32 (Ohio Administrative Record No. OH-0994). This part
of Ohio Program Amendment Number 32 was not approved by OSM.
ORC 1513.08 paragraph (B): Ohio is revising this paragraph to
delete a reference to performance bonds issued under ORC Section
1513.081 which is to be repealed.
Because the proposed changes were never approved by the Director
and therefore never became part of Ohio's approved program, their
deletion from the ORC does not render the Ohio program inconsistent
with the requirements of SMCRA or the Federal Regulations.
4. Alternative Dispute Resolution
ORC 1513.13 paragraph (A)(3): Ohio is adding this new paragraph to
provide an alternative mechanism for resolving disputes over notices,
orders, or other decisions issued by the Chief. Any person who, under
ORC 1513.13, may appeal such a notice, order, or decision to the Ohio
Reclamation Board of Review (RBR) may elect to request an informal
review by the Chief of that notice, order, or decision to the RBR. The
time spent on such an informal review would not count against the time
available to the person to appeal the notice, order, or decision to the
RBR. Further, such a review would not stay the order, notice, or
decision. Finally, such a review would itself be appealable to the RBR.
Since Ohio already has an informal review process in its
regulations for Civil Penalty Assessments, citizen complaints, and bond
releases, the proposed change is not inconsistent with the requirements
of SMCRA and the Federal regulations insofar as it does not interfere
with or duplicate the informal review process already contained in the
Ohio program. Therefore, the Director is approving ORC 1513.13(A)(3) to
the extent that it does not apply to create additional opportunities
for informal review of Civil Penalty assessments, citizen complaints,
and bond releases, beyond those already contained in the Ohio program.
5. Limitations on Awards of Costs and Expenses
ORC 1513.13 paragraph (E)(1): Ohio is revising this paragraph to
provide that, at the request of a prevailing party in the appeal of an
enforcement order or permit decision, the Ohio RBR and/or the Chief may
award necessary and reasonably incurred costs and expenses, including
attorney fees, for that party's participation in the enforcement
proceedings before the Ohio RBR. Ohio later revised this section so
that it also applies to awards of costs and expenses incurred in
connection with proceedings before the RBR, before the court under ORC
section 1513.15 (pertaining to citizen suits), or before the Chief
under ORC section 1513.39 (pertaining to employee discrimination). Ohio
is also adding that fees awarded under this section may not exceed the
prevailing market rates at the time the services were rendered. Costs
and expenses may also be awarded for the preparation, defense and
appeal of a petition for costs and expenses, provided those costs and
expenses are proportionate to those otherwise allowed under ORC
1513.13(E).
ORC 1513.13 paragraph (E)(1)(a): Ohio is revising this paragraph to
specify that an award may be made to a party other than the permittee
or the Ohio Division of Reclamation (DOR) when the Chief determines
that a party both prevailed in whole or in part and made a substantial
contribution to the determination of issues. This contribution must be
separate and distinct from the contribution made by any other party.
ORC 1513.13 paragraph (E)(1)(b): Ohio is revising this paragraph to
clarify that permittees may file petitions for award of costs and
expenses with the chief against parties who initiated or participated
in an appeal under this section in bad faith for the purpose of
harassing or embarrassing the permittee. The Chief may assess those
costs and expenses against the party who initiated the appeal.
ORC 1513.13 paragraph (E)(1)(c): Ohio is revising this paragraph to
clarify that the DOR may file a request with the RBR for an award of
costs and expenses incurred by the DOR in connection with an appeal
initiated under this section. The RBR may assess those costs and
expenses against those parties who initiated the appeal in bad faith
and for the purpose of harassing or embarrassing the DOR.
[[Page 1671]]
ORC 1513.13 paragraph (E)(2): Ohio is revising this paragraph to
authorize the court to award necessary and reasonably incurred costs
and expenses for parties participating in the judicial review of any
order issued order this section or as a result of any administrative
proceeding under this chapter.
ORC 1513.15 paragraph (F): Ohio is revising this paragraph to
authorize the Chief to award necessary and reasonably incurred costs of
litigation, including attorney and expert witness fees, in connection
with civil actions against the Division. Ohio is also revising this
paragraph to delete previously proposed revision and is reinstating the
court's authority to award, to any party, costs and fees that the court
determines to have been necessary and reasonably incurred, in any
proceeding under ORC 1513.15 (B) (citizen suits) in accordance with ORC
section 1513.13.
ORC 1513.39 paragraph (C): Ohio is revising this paragraph to
incorporate by reference the proposed limit on necessary and reasonably
incurred costs and expenses specified in revised ORC section 1513.13
paragraph (E)(1) and (E)(2) as also applying to cases of alleged
discrimination against employees.
Except as noted below, the proposed changes are found to be
consistent with the requirements of Section 525(e) of SMCRA, 30 CFR
840.15, and 43 CFR 4.1290 and 4.1294.
a. Ohio is required to amend ORC 1513.13 (E)(1)(a) to make it clear
that such awards may be made in connection with any administrative
review proceedings concerning an enforcement action, permit issuance
decision or employee discrimination complaint, not just those
concerning enforcement actions.
b. Ohio is required to amend ORC 1513.13(E)(1)(b) and (c) to make
it clear that such costs may also be assessed against persons who
participate in bad faith appeals, not just those persons who initiate
such bad faith appeals.
6. Reclamation Contracts With Surface Mine Operators
ORC 1513.18 paragraph (C): Under the current version of this
paragraph, the Chief is authorized to enter into contracts with mine
operators mining under a current, valid permit to complete reclamation
on defaulted areas. Ohio is revising this paragraph to extend the
Chief's authorization to include contracts with surface mine operators
mining under permits issued under ORC Chapter 1514, pertaining to
minerals other than coal.
While there is no Federal counterpart, the Director finds the
proposed change is not inconsistent with SMCRA or the Federal
regulations.
7. Reclamation of Forfeited Areas Affected Under Mining Permits Issued
After April 10, 1972 But Before September 1, 1981
ORC 1513.18 paragraph (I): Ohio is adding this new paragraph to
authorize the Chief to use any unspent funds in the defaulted areas
fund to complete reclamation of other interim forfeited areas affected
under coal mining and reclamation permits issued after April 10, 1972
but before September 1, 1981.
While there are no Federal counterparts, the Director finds that
this propose revision is not inconsistent with SMCRA or the Federal
regulations, and is consistent with SMCRA's general intent that all
lands disturbed by surface coal mining operations be reclaimed.
8. Chief's Use of Police Powers on State-Funded AML Sites
ORC 1513.27 third paragraph: Ohio is adding this new paragraph to
authorize the Chief to enter onto property where the owners are not
known, are not readily available, or are not willing to give permission
in order for the Division to use State funds to abate adverse effects
of past coal mining practices on abandoned mined land (AML). Such entry
onto properties shall be construed as an exercise of police power for
the protection of the public health and safety and shall not be
construed as an act of condemnation nor trespass.
The proposed change is found to be substantively identical to the
requirements of section 407 of SMCRA, except that ORC 1513.27 does not
grant a right of entry to ``any other property'' in order to have
access to the property affected by past coal mining practices. However,
because Ohio's program does provide for right of entry upon ``any other
property'' for Federally-funded AML projects at ORC 1513.37 (F)(1), the
proposed change at ORC 1513.27 does not render the state's program less
stringent than section 407 of SMCRA. Therefore, the revision at ORC
1513.27 is approved.
9. AML Liens on Property of Community Improvement Corporations or
Nonprofit Organizations
ORC 1513.33 third paragraph: Ohio is revising this paragraph to
provide that AML liens filed by the Division against property owned by
community improvement corporations or nonprofit organizations shall
have priority as a lien second only to the lien of real property taxes
imposed upon the land.
This proposed change is substantively identical to language
contained in SMCRA at section 408(c).
ORC 1513.33 fourth paragraph: Ohio is revising this paragraph to
clarify the procedure to be used by county recorders in recording and
indexing AML liens.
ORC 1513.33 fifth paragraph: Ohio is revising this paragraph to
provide that AML liens shall continue in force so long as any portion
of the lien remains unpaid.
ORC 1513.33 sixth paragraph: Ohio is revising this paragraph to
delete the provision that AML liens shall be foreclosed in the same
manner as State tax liens foreclosed under ORC Chapter 5721.
While there are no direct Federal counterparts to these proposed
changes, they are found not to be inconsistent with the requirements of
SMCRA at section 408.
10. Expansion of Sites Eligible for Federally Funded AML Projects
ORC 1513.37 paragraph (C)(1): Ohio is revising this paragraph to
expand the eligibility requirements for the sites of Federally funded
AML reclamation projects. Ohio is adding new paragraph (C)(1)(b) to
make eligible mining operations which occurred during the period
beginning August 4, 1977 and ending on or before August 16, 1982 and
for which sufficient reclamation funds are not available. Ohio is
adding new paragraph (C)(1)(c) to make eligible mining operations which
occurred during the period beginning August 4, 1977 and ending on or
before November 5, 1990, for which sureties became insolvent, and for
which sufficient reclamation funds are not available.
ORC 1513.37 paragraph (C)(2): Ohio is adding this new paragraph to
provide that the Chief shall follow the priorities set forth at ORC
1513.37(B)(1) and (B)(2) in determining which sites to reclaim using
the new authority granted under ORC 1513.37(C)(1)(b) and (c). The Chief
shall ensure that priority is given to those sites which are in the
immediate vicinity of a residential area or which have an adverse
economic impact upon the local community.
The proposed changes are found to be substantively identical to the
requirements of SMCRA at section 402(g)(4)(B) and (C).
11. Creation of the State Acid Mine Drainage Abatement and Treatment
Fund
ORC 1513.37 paragraph (E): Ohio is adding this new paragraph to
create in the State treasury the Acid Mine Drainage Abatement and
Treatment
[[Page 1672]]
Fund. The fund shall be administered by the Chief and shall consist of
grants from OSM to be used in consultation with the U.S. Department of
Agriculture, Natural Resources Conservation Service to abate and treat
acid mine drainage. Proposed ORC 1513.37 paragraphs (E)(1) through (7)
would specify activities eligible for financial support from the fund,
including the identification of affected hydrologic units, the sources
of acid mine drainage, and the effects of the drainage; the
identification of corrective measures to ablate or treat the drainage;
calculation of costs; and analysis of benefits.
The proposed changes are found to be substantively identical to
section 402(g)(7) of SMCRA.
12. AML Liens on Certain Properties Involved in Federally Funded AML
Reclamation Projects
ORC 1513.37 paragraph (G): Ohio is revising this paragraph to
provide that the Chief may file in the office of the county recorder a
statement of reclamation costs spent on certain properties affected by
Federally funded AML reclamation projects. Such statements would
constitute a lien upon the land as of the date of the State's
reclamation expenditures and would have a priority as a lien second
only to the lien of real property taxes imposed upon the land. This
revision is substantively identical to language contained in section
408(c) of SMCRA.
ORC 1513.37 paragraph (G)(3): Ohio is revising this paragraph to
clarify the procedure to be used by county recorders in recording and
indexing AML liens relating to Federally funded reclamation.
ORC 1513.37 paragraph (G)(4): Ohio is adding this new paragraph to
provide that AML liens relating to Federally funded reclamation shall
continue in force so long as any portion of the lien remains unpaid.
Conveyance of the land subject to an AML lien may be set aside if the
lien remains unpaid at the time of conveyance.
ORC 1513.37 paragraph (G)(5): Ohio is adding this new paragraph to
provide that AML liens relating to Federally funded reclamation shall
be foreclosed upon the substantial failure of a landowner to pay any
portion of the amount of the lien. Before proceeding with foreclosure,
the Chief shall make a written demand upon the landowner for payment
and shall give the landowner sixty days to pay the amount.
Although there are no direct Federal counterparts to the proposed
changes, the Director finds that they are not inconsistent with the
requirements of SMCRA at section 408(c).
13. Lands Eligible for Remining
ORC section 1513.01 paragraph (F): Ohio is adding this paragraph to
define the term ``lands eligible for remining'' to mean those lands
that otherwise would be eligible for expenditure of AML reclamation
funds under paragraph (C)(1) of ORC section 1513.37.
ORC section 1513.07 paragraph (E)(3)(b): Ohio is adding this new
paragraph to provide that, until October 1, 2004, any violation
resulting from an unanticipated event or condition at a surface coal
mining operation on lands eligible for remining shall not prevent
issuance of a coal mining permit to the person holding the remining
permit. An unanticipated event or condition is one that was not
contemplated by the applicable permit.
ORC section 1513.16 paragraph (A)(19)(b): Ohio is adding this new
paragraph to provide that coal mining permits on lands eligible for
remining shall require the operator to assume the responsibility for
successful revegetation of the remined area for two full years after
the last augmented seeding, fertilizing, or irrigation.
ORC section 1513.37 paragraph (C)(3): Ohio is adding this new
paragraph to provide that surface coal mining operations on lands
eligible for remining shall not affect the eligibility of those lands
for AML reclamation funding under this section of the ORC after the
release of the mining operation's performance bond. If the performance
bond for the remining operation is forfeited and is not sufficient for
adequate reclamation of the site, Ohio may use AML reclamation funding
under this section to augment the bond.
The proposed changes are found to be substantively identical to
SMCRA at sections 701(33) and (34), 515(b)(20)(B), and 404 to the
extent that 1513.07(E)(3)(b) applies up to, but not including 10/1/
2004.
14. Average Wage Rates
ORC section 1513.02 paragraph (J): Ohio is revising this paragraph
to provide that the State will use information from non-coal as well as
coal mining and reclamation operations in calculating average wage
rates. The newly calculated average wage rates shall apply to
reclamation performed for Ohio on both coal and non-coal mining sites.
While there are no Federal counterparts to this revision, the Director
finds that is not inconsistent with SMCRA or its corresponding Federal
regulations.
15. Deletion of Obsolete Language
ORC section 1513.07 paragraph (A)(1): Ohio is deleting obsolete
language from this paragraph concerning payment of permit fees for
areas covered by a permit in effect on August 16, 1982, as well as
language concerning interim continuance of underground coal mine
operations which were in effect prior to September 1, 1981.
The director finds that deletion of this obsolete language does not
render the Ohio program less stringent than SMCRA or less effective
than the corresponding federal regulations.
16. Activities Eligible for the Small Operator's Assistance Program
(SOAP)
ORC section 1513.07 paragraph (B)(4) (a) and (b): Ohio is revising
these paragraphs to expand the types of activities related to permit
applications which qualified laboratories can perform for permit
applicants under contracts funded by Ohio's SOAP. Qualifying activities
include determination of probable hydrologic consequences, development
of cross-section maps and plans, geologic drilling and reporting,
collection and reporting of archaeological information, performing pre-
blast surveys, and collection of information on protection of fish and
wildlife habitats. The coal mine operator shall reimburse the State for
the costs of SOAP-assisted services if the operator's actual and
attributed coal production for all locations exceeds 300,000 tons
during the 12 months immediately following the date of issuance of the
mining permit.
The proposed changes are found to be substantively identical to,
and therefore no less stringent than, sections 507(C)(1) and (h) of
SMCRA, except Ohio is required to amend ORC 1513.07(B)(4)(a)(i) or
otherwise clarify that probable hydrologic consequences determinations
include the engineering analyses and designs necessary for those
determinations.
17. Required Staff Training
ORC section 1513.34: Ohio is revising this section to delete the
requirements for minimum hourly amounts of initial and annual follow-up
training for certain staff positions. In lieu of a minimum of 80 hours
of training, Ohio shall provide adequate training and education, during
their probationary periods, for all persons appointed as inspection
officers. In lieu of a minimum of 40 hours of annual training, Ohio
shall provide, on a regular basis as funding allows, continuing
education and training as necessary for all inspection officers,
[[Page 1673]]
district supervisors, and enforcement personnel. While there are no
direct Federal counterparts to these Ohio training requirements, the
proposed changes are found to be not inconsistent with the requirements
of SMCRA at 503(a)(3), which requires that state regulatory authorities
employ sufficient administrative and technical personnel to enable the
State to regulate surface coal mining and reclamation operations in
accordance with SMCRA.
IV. Summary and Disposition of 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. Comments were received from the Ohio Historic Preservation Office
on March 19, 1992 (Administrative Record No. OH-1671) pertaining to the
expansion of sites eligible for Federally funded AML projects. The
comment stated that ongoing coordination with the Ohio Historical
Society is necessary to address preservation concerns, and requested
notification of projects prior to initiation. The Director notes that
all abandoned mine lands projects are reviewed by the State Historic
Protection Officer (SHPO). Further, a statement of concurrence that no
significant cultural or historic properties will be adversely affected,
signed by the SHPO, is included with the National Environmental Policy
Act documents submitted prior to construction.
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. MSHA responded
that it had no comments in its letter dated April 20, 1995.
(Administrative Record No. 2113)
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.). EPA
concurred with the amendment in its letter to OSM dated June 2, 1995.
(Administrative Record No. OH-2129)
V. Director's Decision
Based on the above finding(s), the Director approves, with certain
additional requirements, the proposed amendment as submitted by Ohio on
February 7, 1992, as modified on February 27, 1992, September 2, 1992,
and March 31, 1995.
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).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 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.
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 13, 1996.
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 by adding paragraph (dddd) to read as
follows:
Sec. 935.15 Approval of regulatory program amendments.
* * * * *
(dddd) With the exceptions noted below, the amendments submitted to
OSM on February 7, 1992, and revised on February 27, 1992, April 18,
1992 and March 31, 1995, are approved effective January 13, 1997.
[[Page 1674]]
ORC 1513.07(D)(2)...................... Confidential Information.
ORC 1513.08 & ORC 1513.18 (D) & (E), Reclamation Supplemental
and ORC 1514.06(G). Forfeiture Fund.
ORC 1513.13 (E)(1), (E)(2), (C)........ Limitation on Awards.
ORC 1513.15(F), ORC 1513.39(C)
ORC 1513.13(A)(3)...................... Alternative Dispute Resolution
to the extent that it does not
duplicate the current informal
review process.
ORC 1513.18(C)......................... Reclamation Contracts.
ORC 1513.18(I)......................... Reclamation of Forfeited Areas.
ORC 1513.27............................ Police Powers.
ORC 1513.33............................ AML Liens.
ORC 1513.37 (C), (C)(1), (C)(1)(b), Sites Eligible for AML.
(C)(1)(c) & (C)(2).
ORC 1513.37(E)......................... Acid Mine Fund.
ORC 1513.37(G)......................... Liens on Federally-Funded AML
Projects.
ORC 1513.07 (B), (B)(4), (B)(4)(a)(b).. SOAP.
ORC 1513.34............................ Staff Training.
ORC 1513.01(F), 1513.07(E)(3)(b), Remining to the extent that
1513.16(A)(19)(b), & 1513.37(C)(3). 1513.07(E)(3)(b) applies up
to, but does not include 10/1/
2004.
ORC 1513.01(H)(2)...................... Public Roadways.
ORC 1513.02(J)......................... Average Wage Rates.
ORC 1513.07(A)(1)...................... Delete interim continuance of
mining in effect prior to 9-1-
91.
ORC 1513.081 (Repealed and ORC Coal Mining Performance Bond
1513.08(B). Fund.
3. Section 935.16 is revised to read as follows:
Sec. 935.16 Required regulatory program amendments.
(a) By June 27, 1997, Ohio shall submit either a proposed amendment
or a description of an amendment to be proposed, together with a
timetable for adoption, to address the following:
(1) Amend the Ohio program at ORC 1513.13(E)(1)(a) to make it clear
that such awards may be made in connection with any administrative
review proceedings concerning an enforcement action, permit issuance
decision or employee discrimination complaint, not just those
concerning enforcement actions.
(2) Amend ORC 1513.13(E)(1) (b) and (c) to make it clear that such
costs may also be assessed against persons who participate in bad faith
appeals, not just those persons who initiate such bad faith appeals.
(3) Amend ORC 1513.07(B)(4)(a)(i) or otherwise clarify that
probable hydrologic consequences determinations include the engineering
analyses and designs necessary for those determinations.
(b) [Reserved]
[FR Doc. 97-709 Filed 1-10-97; 8:45 am]
BILLING CODE 4310-05-M
