[Federal Register Volume 61, Number 210 (Tuesday, October 29, 1996)]
[Rules and Regulations]
[Pages 55748-55750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27600]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 935
[OH-237; Amendment Number 71]
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 to rules pertaining to inspections. The amendment is
intended to make the Ohio program consistent with the corresponding
Federal regulations.
EFFECTIVE DATE: October 29, 1996.
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 May 17, 1996, (Administrative Record No. OH-2165-
00) Ohio submitted a proposed amendment to its program pursuant to
SMCRA at its own initiative. Ohio proposed to revise Ohio
Administrative Code (OAC) section 1501:13-14-01 by deleting that
portion of the rule pertaining to bond reduction; adding language to
treat portions of operations as inactive where reclamation phase II is
performed; and to delete a reference to permits other than permanent
program ``D'' permits. In a subsequent letter dated September 3, 1996,
[[Page 55749]]
(Administrative Record No. OH-2165-06) Ohio withdrew its proposal to
add language at OAC 1501:13-14-01(A)(2), that would allow portions of
operations to be considered as inactive for inspection purposes.
OSM announced receipt of the proposed amendment in the June 11,
1996, Federal Register (61 FR 29504), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on July 11, 1996.
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 amendment.
OAC 1501:13-14-01 Inspections
(A)(2)(b) Ohio is proposing to amend its regulations pertaining to
inspections to change the definition of ``inactive coal mining and
reclamation operation''. Currently, one of the ways for an Ohio coal
mining operation to be deemed ``inactive'' is for the entire operation
to have achieved Phase II reclamation standards and that release of
phase II bond liability has occurred. Ohio is proposing to delete the
requirement that actual release from phase II bond liability must occur
before a site is considered inactive so that the operation must only
meet phase II reclamation standards to be considered inactive. The
amendment has nearly identical wording to 30 CFR 842.11(c)(2)(iii)(B)
(the rule applying to OSM when it is the regulatory authority).
Although 30 CFR 842.11(c)(2)(iii)(B) is nearly identical to the Ohio
amendment, 30 CFR 840.11(f)(2) (the rule applying to states when they
are the regulatory authority), contains language nearly identical to
Ohio's existing regulation. However, as discussed below, it is clear
from the 1982 federal rule preamble, the OSM intended the rules for OSM
and the states to be the same and only to require that Phase II
reclamation be accomplished.
This 1982 federal final rule, was originally proposed by OSM on
December 1, 1981 (46 FR 58464). OSM suggested a change to 30 CFR
842.11(c)(2), but did not propose a change to 30 CFR 840.11. Then, in
the 1982 final rule regarding 30 CFR 840.11, four commenters ``wrote
that the same policy considerations of efficiency in Federal programs
[should] apply to State programs.'' 47 FR 35620, 35621 (August 16,
1982). OSM agreed with the commenters and stated that:
The final rule allows States to distinguish between active and
inactive mines in the same manner as was proposed and is being
adopted for OSM when acting as the regulatory authority. This is
accomplished through * * * new paragraph (f), discussed above. A
discussion of the comments addressing the question of active and
inactive mines is found below, under the discussion of
Sec. 842.11(c).
Id. OSM, in its discussion of 30 CFR 842.11 responded to commenters
that wanted the requirement for Phase II bond release deleted because
it could cause ``OSM to continue monthly inspections long after Phase
II reclamation is completed.'' 47 FR at 35627 (August 16, 1982).
OSM agrees. In view of the broad discretion granted to OSM in
releasing a portion of the performance bond following completion of
Reclamation Phases I and II, the determination of a mine's status as
active or inactive should be based solely on the completion of
Reclamation Phase II. Id. (Emphasis added).
The Director finds Ohio's proposed deletion consistent with the
intent of 30 CFR 840.11(f)(2) and therefore, no less effective.
(A)(2)(c) Ohio is proposing to delete this section pertaining to
other than permanent program ``D'' permits. Since Ohio no longer has
any active permits except permanent program permits, and permits
pertaining to exploration are not subject to the specific inspection
frequencies, the Director finds that Ohio's proposed rule is consistent
with 30 CFR 701.1, which requires a permanent regulatory program to
include subchapter L, which includes Part 840.
IV. Summary and Disposition of Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. Comments were received
from one Environmental Group in a letter dated July 11. OSM carefully
considered the comments. Essentially, the commenter opposed the
amendment on the basis that it would legitimize an already deficient
inspection frequency in Ohio, and cause additional safety and
environmental hazards for the public. OSM recognizes the comment,
however the commenter's concern about inspection frequency is really
directed toward Ohio's implementation of its approved program, which is
not the subject of this amendment. The Director notes that recently,
OSM received a request, pursuant to 30 CFR 733.12(a)(2)(``733
request''), to evaluate some of the same issues that are raised by the
commenter. In response to the 733 request, OSM is in the process of
reviewing the matter.
The subject of this amendment primarily deals with whether Ohio's
revised definition of ``inactive coal mining and reclamation
operation'' is no less effective than the applicable federal
definition. Ohio's revised definition of ``inactive coal mining
operations'' requires that Phase II reclamation be completed. For a
more complete discussion of this amendment, see the Director's
Findings. The commenter also was concerned that the amendment ``would
weaken Ohio's ability to adequately monitor surface mining.'' The
Director disagrees because, even though more mines may be defined as
inactive, ``OSM has found that, in general, inactive mines present
fewer problems than active mines, and consequently do not require the
same frequency of inspections as active mines.'' 47 FR 35620, 35627
(August 16, 1982). Thus, the amendment would allow the inspection staff
to devote more resources to active sites that pose a higher risk for
impacts to the environment.
Because no one requested an opportunity to speak at a public
hearing, no hearing was held.
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. No 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 that Ohio proposed to make in this amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
V. Director's Decision
Based on the above finding(s), the Director approves the proposed
amendment as submitted by Ohio on May 17, 1996.
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
[[Page 55750]]
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 12778
The Department of the Interior has conducted the reviews required
by section 2 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.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 27, 1996.
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 of part 935 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 935.15 is amended by adding paragraph (cccc) to read as
follows:
Sec. 935.15 Approval of regulatory program amendments.
* * * * *
(cccc) The following rules, as submitted to OSM on May 17, 1996,
are approved effective October 29, 1996:
OAC 1501:13-14-01(A)(2)(b) (Deleted Portion) Definition of Inactive
coal mining and reclamation operation
OAC 1501:13-14-01(A)(2)(c) (Deletion) Same
[FR Doc. 96-27600 Filed 10-28-96; 8:45 am]
BILLING CODE 4310-05-M
