[Federal Register Volume 62, Number 40 (Friday, February 28, 1997)]
[Rules and Regulations]
[Pages 9076-9080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5038]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-239; Amendment Number 73]
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). The
proposed amendment consists of regulatory changes to implement the
remining standards of the Federal Energy Policy Act of 1992. The
amendment is intended to revise the Ohio program to be consistent with
the corresponding Federal regulations as amended on November 27, 1995.
(60 FR 58480).
EFFECTIVE DATE: February 28, 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.
[[Page 9077]]
II. Submission of the Proposed Amendment
By letter dated July 23, 1996, (Administrative Record No. OH-2168-
00) Ohio submitted a proposed amendment to its program pursuant to
SMCRA. Ohio submitted the proposed amendment at its own initiative. The
Ohio amendment proposes to implement the remining standards of the
Federal Energy Policy Act of 1992 and the corresponding Federal
regulations as amended on November 27, 1995. (60 FR 58480). OSM
announced receipt of the proposed amendment in the August 26, 1996,
Federal Register (61 FR 43696) 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 September 25, 1996. However, a complete description of
certain amendments concerning permit application requirements and
revegetation time frames was inadvertently omitted from that notice.
Also, Ohio submitted corrections to its proposed amendments by letter
dated October 4, 1996, (Administrative Record No. OH-2168-07).
Therefore, OSM announced these items in the October 18, 1996, Federal
Register (61 FR 54375) and reopened the public comment period until
November 4, 1996. On January 23, 1997, Ohio submitted additional
changes (Administrative Record No. OH-2168-12) as a result of
discussions with OSM.
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. Revisions not specifically discussed below concern
nonsubstantive wording changes, or revised cross-references and
paragraph notations to reflect organizational changes resulting from
this amendment.
A. Revisions to Ohio Regulations That Are Substantively Identical to
the Corresponding Federal Regulations
1. OAC 1501:13-1-02 Definitions.
(a) New paragraph (OOO) ``Lands eligible for remining'' has been
added to mean those lands that would otherwise be eligible for
expenditures under section 1513.37 of the Revised Code.
(b) New paragraph (JJJJJJ) ``Unanticipated event or conditions''
has been added to mean (as used in 1501:13-5-01 of the Administrative
Code) an event or condition related to prior mining activity which
arises from a surface coal mining and reclamation operation on lands
eligible for remining and was not contemplated in the applicable
permit.
The proposed changes are found to be substantively identical to the
corresponding Federal Regulations at 30 CFR 701.5.
2. OAC 1501:13-5-01 Review, public participation, and approval or
disapproval of permit applications and permit terms and conditions.
(a) New paragraph (D)(7) has been added to provide that subsequent
to the effective date of this rule, the prohibitions of paragraph
(D)(3) of this section regarding the issuance of a new permit, shall
not apply to any violation that occurs after that date; is unabated;
and results from an unanticipated event or condition that arises from a
surface coal mining and reclamation operation on lands that are
eligible for remining under a permit issued pursuant to OAC 1501:13-4-
12(L) and held by the person making application for the new permit.
(b) New paragraph (D)(7)(D) provides that for permits issued under
OAC 1501:13-4-12(L), an event or condition shall be presumed to be
unanticipated for the purposes of this paragraph if it: arose after
permit issuance; was related to prior mining; and was not identified in
the permit.
(c) New paragraph (E)(19) and subparagraphs (A), (B), and (C), are
added to require that, for operations which will include remining areas
under 1501:13-4-12(L) of the Administrative Code, the application
includes (A) Lands eligible for remining; (B) an identification of the
potential environmental and safety problems related to prior mining
activity which could reasonably be anticipated to occur at the site;
and (C) mitigation plans to sufficiently address these potential
environmental and safety problems so that reclamation as required by
the applicable requirements of Chapter 1513 of the Revised Code can be
accomplished. Additionally, a semicolon and the word ``and'' are added
at the end of paragraph (E)(18).
The proposed changes are found to be substantively identical to the
corresponding Federal regulations at 30 CFR 773.15(b) and (c)(13).
3. OAC 1501:13-9-15 Revegetation.
Paragraph (F)(2) is revised, and subparagraph (F)(2)(A) is added,
to provide that the required period of extended responsibility on lands
eligible for remining shall be not less than two full years for permits
issued pursuant to the requirements of OAC 1501:13-4-12 and renewals
thereof.
The Director finds that these revisions are substantively identical
to portions of the corresponding Federal regulations at 30 CFR 816 and
817.116(c)(2)(i) and (ii).
B. Revisions to Ohio Regulations That Are Not Substantively Identical
to the Corresponding Federal Regulations
1. OAC 1501:13-4-12 Requirements for permits for special categories
of mining.
(a) New paragraph (L) has been added to include the requirements
for any person who submits a permit application to conduct a surface
coal mining operation on lands eligible for remining. The requirements
of paragraph (L) shall apply until September 30, 2004, or any later
date authorized by federal law. The permit application must include:
(1) A description of the proposed lands eligible for remining and a
demonstration, to the satisfaction of the Chief, how such lands meet
the eligibility requirements specified by Revised Code Section 1513.37;
(2) Identification, to the extent not otherwise addressed in the permit
application, of any potential environmental and safety problems related
to the prior mining activity at the site which could be reasonably
expected to occur. This identification shall be based on a due
diligence investigation which shall include visual observations at the
site, a record review of past mining at the site, and environmental
sampling tailored to current site conditions; and (3) A description,
with regard to potential environmental and safety problems identified
in paragraph (2), of the mitigative measures that will be taken to
ensure that the applicable reclamation requirements of Revised Code
Chapter 1513 and these rules can be met.
The federal regulation at 30 CFR 785.25(b) requires that the
remining application permit be made in accordance with the requirements
of subchapter G, which are the permitting requirements. The Ohio rule
at OAC 1501:13-4-12(L) does not include this requirement, however, OAC
1501:13-4-12(A) does require all special categories of mining to comply
with the general permitting requirements of OAC 1501:13-4, therefore
the Director finds that the proposed change at paragraph (L) is no less
effective than the corresponding Federal regulations at 30 CFR 785.25
(b) and (c) when read in conjunction with OAC 1501:13-4-12(A).
(b) The Director also finds that paragraphs (L)(1) and (L)(3) are
substantively identical to 30 CFR 785.25(a) and (b)(2), respectively.
Paragraph (L)(2) is nearly identical to 30 CFR 785.25(b)(1) except that
Ohio did
[[Page 9078]]
not include the word ``review'' in OAC 1501:13-4-12(L)(2) when
describing the evaluation of past mining at the site that is required
during the permitting process. 30 CFR 785.25(b)(1) requires a record
review of past mining at the site. Ohio has addressed this item by
including the word ``review'' in the version of OAC 1510:13-4-12(L)(2)
that was officially filed through the Ohio rule promulgation process
with the Ohio Legislative Service Commission on January 16, 1997. Ohio
provided a copy of this letter to OSM on January 23, 1997. Therefore
the amendment is found to be as effective as 30 CFR 785.25(b)(1) based
on this revision.
2. OAC 1501:13-9-15 Revegetation.
(a) Ohio's revegation performance standards for lands eligible for
remining generally cross-reference the performance standards for
previously undisturbed lands, thus, to avoid confusion, Ohio deleted
the references to ``five years'' for the period of responsibility.
While the period of responsibility will remain five years for most
mining operations, the deletions are consistent with the change in 30
CFR 816/817.116(c)(2)(i) which allows remining operations to have a
shorter period of responsibility. Affected paragraphs and subparagraphs
are: (F)(3), (F)(3)(a), (G)(3)(a), (I)(6), (J)(1)(b), (F)(4)(d),
(H)(2), (L)(2), and (M)(4).
(b) Subparagraph (H)(2) is further amended by adding the words
``and hay crops also meet, at a minimum, the ground cover standards of
paragraph (G)(3)(B) during the last year of the period of extended
responsibility.'' The current rule could have been interpreted to allow
cropland with hay as the approved crop to only meet productivity
requirements without a ground cover. Ohio is adding a ground cover
requirement on cropland when hay is the required crop. While the
federal rules at 30 CFR 816.116(b)(2) only require a success standard
approved by the regulatory authority for cropland, the Director finds
the success standard to be consistent with the revegetation
requirements of 30 CFR 816/817.111.
(c) Paragraph (L) is amended by deleting the words ``undeveloped
land'' from the revegetation success standards for forest land, fish
and wildlife habitat and other postmining land uses that have woody
vegetation. Specific revegetation success standards for undeveloped
land are provided under in OAC 1510:13-9-15(M). OSM previously approved
Ohio's program amendment #67 to change OAC 1501:13-9-17(B)(2) to allow
undeveloped land as a post mining land use only if the pre-mining land
use was undeveloped. That amendment also eliminated OAC 1501:13-9-
17(D)(8) which provided that proposals for a post mining land use of
undeveloped land would be treated as if the post mining land use were
forest land/fish and wildlife habitat. Therefore, including undeveloped
land with the forest land/fish and wildlife land use revegetation
standards in OAC 1501:13-9-15(L) is no longer necessary. The deletion
of ``undeveloped land'' in paragraph (L) is consistent with the earlier
deletion that was approved by OSM on July 27, 1994 (59 FR 38123,
38124). Thus, the Director finds that this deletion is not inconsistent
with 30 CFR 816./817.116(b).
(d) New paragraph (O) is added to include revegetation standards
for areas eligible for remining in each land use category. New
subparagraph (1)(A) includes standards for revegetation of pasture and
grazing lands and requires that for Phase II bond release, revegetation
standards for remined lands are the same as those for previously
unmined lands as required by paragraph (G)(2) of this rule. For Phase
III bond release, however, new subparagraph (1)(B) requires that
remined lands in this category must have ground cover equal to or
exceeding seventy percent cover and be adequate to control erosion with
no single area with less than thirty percent cover exceeding the lesser
of three thousand square feet or .3 percent of the land affected.
New subparagraph (2)(A) includes standards for revegetation of
agricultural cropland, other than prime farmland, and requires that for
Phase II bond release, revegetation standards for remined lands are the
same as those for previously unmined lands as required by paragraph
(G)(2) of this rule. New subparagraph (2)(B) includes for Phase III
bond release, crop yield data must at a minimum equal the average
county yield for any year of the responsibility period except the first
year and, hay crops also must have ground cover equal to or exceeding
seventy percent cover and be adequate to control erosion with no single
area with less than thirty percent cover exceeding the lesser of three
thousand square feet or .3 percent of the land affected.
New subparagraph (3)(A) includes standards for revegetation of
industrial, residential, or commercial land use, other than commercial
forest land, and requires that for Phase II bond release, revegetation
standards for remined lands are the same as those for previously
unmined lands as required by paragraph (G)(2) of this rule. For Phase
III bond release, however, new subparagraph (3)(B) requires that
remined lands in this category must have ground cover equal to or
exceeding seventy percent cover and be adequate to control erosion with
no single area with less than thirty percent cover exceeding the lesser
of three thousand square feet or .3 percent of the land affected.
New subparagraph (4)(A) includes standards for revegetation of
forest land, fish and wildlife habitat, or other land which requires
the establishment of woody vegetation, and requires that for Phase II
bond release, revegetation standards for remined lands are the same as
those for previously unmined lands as required by paragraph (L)(1) of
this rule. For Phase III bond release, however, new subparagraph (4)(B)
requires that remined lands in this category must meet the requirements
of paragraph (L)(2) of this rule except that, of the minimum countable
trees per acre, eighty (80) percent have been in place for at least two
(2) years, on each acre on which trees or shrubs are to be planted.
New subparagraph (5)(A) includes standards for revegetation of
undeveloped land and requires that for determining success of
revegetation and for Phase II bond release, revegetation standards for
remined lands are the same as those for previously unmined lands as
required by paragraph (M)(1), (2) and (3) of this rule. For Phase III
bond release, however, new subparagraph (5)(B) requires that remined
lands in this category must meet the requirements of paragraph (M)(3)
of this rule except that the herbaceous ground cover on areas not
planted with trees or shrubs must have ground cover equal to or
exceeding seventy percent cover and be adequate to control erosion with
no single area with less than thirty percent cover exceeding the lesser
of three thousand square feet or .3 percent of the land affected.
New subparagraph (6)(A) includes standards for revegetation of
recreational areas where herbaceous vegetation comprises the ground
cover, and requires that for Phase II bond release, revegetation
standards for remined lands are the same as those for previously
unmined lands as required by paragraph (G)(2) of this rule. For Phase
III bond release, however, new subparagraph (6)(B) requires that
remined lands in this category must have ground cover equal to or
exceeding seventy percent cover and be adequate to control erosion with
no single area with less than thirty percent cover exceeding the lesser
of three thousand square feet or .3 percent of the land.
New subparagraph (6)(C) includes standards for revegetation of
recreation
[[Page 9079]]
areas which require the planting of woody vegetation, and requires that
for Phase II bond release, revegetation standards for remined lands are
the same as those for previously unmined lands as required by paragraph
(L)(1) of this rule. For Phase III bond release, new subparagraph
(6)(D) requires that remined lands must meet the same requirements of
paragraph (L)(2) of this rule which pertain to previously unmined lands
in this category.
The proposed rules discussed above pertaining to Phase II bond
release for each appropriate land use category for remined areas are
the same rules that Ohio applies for Phase II bond release for
previously unmined areas. The proposed rules in (O)(1)(B), (O)(2)(B),
(O)(3)(B), (O)(5)(B) and (O)(6)(B) pertaining to Phase III bond release
for each appropriate land use category require ground cover to equal or
exceed 70 percent and adequately control erosion in the last year of
the extended responsibility period on remining sites. The corresponding
Federal rule at 816.116(b)(5) requires the vegetative ground cover
shall be not less than the ground cover existing before redisturbance
and shall be adequate to control erosion. The Federal rule does not
specify required percentages of ground cover. The question is whether
or not 70 percent cover is adequate, especially if the ground cover was
greater than 70 percent before remining. To evaluate the adequacy of
the proposed rule it is necessary to look at the entire Ohio rule as it
pertains to revegetation success standards. Ohio's general requirements
in OAC 1501:13-9-15(B)(3) and (4) require vegetation to be at least
equal in extent of cover to the natural vegetation of the area; and
control surface erosion. When OAC 1501:13-9-15(O) is considered in
conjunction with these provisions of the Ohio rule, the proposed
success standards for remining meet the requirements of the Federal
rule at 30 CFR 816.116(b)(5). Therefore, in the rare case of an area
being eligible for remining having greater than 70 percent ground cover
before remining, the mining operator would be held to the general
requirements of OAC 1501:13-9-15(B)(3) & (4) that vegetation be at
least equal to the natural vegetation of the area and capable of
controlling surface erosion. Additionally, the requirements that ground
cover meet or exceed 70 percent in the last year of the period of
extended responsibility is consistent with the Federal rule at 30 CFR
816.116/817.116(c)(2)(ii).
The Director finds that Ohio's proposed rules listed above are no
less effective than the corresponding Federal Regulations at 30 CFR
816.116 and 30 CFR 817.116.
The following non-substantive changes are also proposed by Ohio:
(d) Paragraph (M) is further amended by separating the first
sentence into two items with the second item being labeled as (1) and
re-numbering the subsequent items accordingly. No word changes were
made to these items.
(e) Definitions of ``abatement plan'', ``base line pollution
load'', ``best available technology economically achievable'',
``pollution abatement area'', ``pre-existing discharge'', and
``remining NPDES permit'' are relocated from OAC 1501:13-4-15 to OAC
1501:13-1-02, without revision, and remaining paragraphs in both
sections are re-lettered accordingly.
C. Revisions to Ohio's Regulations With No Corresponding Federal
Regulations
1. OAC 1501:13-4-08 Hydrologic map and cross-sections.
New paragraph (A)(15) has been added to include in the hydrologic
map any land determined to be eligible for remining.
2. OAC 1501:13-4-10 Uniform color code and map symbols.
New paragraph (A)(6) has been added to include any area determined
to be eligible for remining shall have its perimeter designated with a
dashed black line and the areas therein clearly labeled ``Remine''.
3. OAC 1501:13-4-15.
(a) The title of this section is changed from ``Authorization to
conduct coal mining on previously mined areas'' to ``Authorization to
conduct coal mining on pollution abatement areas''.
While there are no direct Federal counterparts to these revisions,
the Director finds that they are not inconsistent with SMCRA or its
corresponding Federal regulations, and do not render the State program
any less effective than the federal regulations.
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
in a letter dated September 13. The commenter stated that ongoing
coordination with the Ohio Historical Preservation Office is necessary
to address preservation concerns. The Director notes that OAC 1501:13-
4-01(B) requires coordination of review and issuance of permits with
other federal or state laws which includes the National Historic
Preservation Act of 1966 and that OAC 1501:13-5-01(A)(3) requires that
a written notification of a permit application, renewal or revision be
sent to all federal, state and local governmental agencies that have an
interest in the area of the proposed operations. There are no remining
operations that are not included in the permit application process. The
program amendment does not propose to change any coordination that
currently exists between OHPO and DMR concerning review of cultural and
historical resources. Additionally, the commenter was concerned that
remining permit applications will not be reviewed by Ohio to determine
if the proposed permit area is included within an area designated as
unsuitable for mining. The Director disagrees with the commenter.
Pursuant to OAC 1501:13-5-01(E)(4), all mining applications, including
remining sites, cannot be approved if the proposed permit area is
included within an area designated unsuitable for coal mining
operations.
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 U.S. Army
Corps of Engineers responded that the changes were satisfactory. 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 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 July 23, 1996, and revised on October
4, 1996 and January 23, 1997. The Director is approving the proposed
regulations with the understanding that they be promulgated in a form
identical to that submitted to OSM. Any differences between these
regulations and the State's final regulations will be
[[Page 9080]]
processed as a separate amendment subject to public review at a later
date.
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 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
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 935
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 7, 1997.
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 (eeee) to read as
follows:
Sec. 935.15 Approval of regulatory program amendments.
* * * * *
(eeee) The following rules, as submitted to OSM on August 26, 1996,
and revised on October 4, 1996, and January 23, 1997, are approved
effective February 28, 1997:
OAC 1501:13-1-02 (000) and (JJJJJJ).... Definitions.
OAC 1501:13-4-08 (A)(15)............... Hydrologic map and cross
sections.
OAC 1501:13-4-10 (A)(6)................ Uniform color code and map
symbols.
OAC 1501:13-4-12 (L)................... Requirements for permits for
special categories of mining.
OAC 1501:13-4-15 (deletion of (B))..... Authorization to conduct coal
mining on pollution abatement
areas.
OAC 1501:13-5-01 (D)(7), (D)(7)(D), Review, public participation,
(E)(19) and (E)(19) (A), (B) and (C). and approval or disapproval of
permit applications and permit
terms and conditions.
OAC 1501:13-9-15 (F)(2), (F)(2)(A), Revegetation.
(F)(3), (F)(3)(a), (F)(4)(d),
(G)(3)(a), (H)(2), (I)(6), (J)(1)(b),
(L), (L)(2), (M)(4), (O), and (O) (1)
through (6).
[FR Doc. 97-5038 Filed 2-27-97; 8:45 am]
BILLING CODE 4310-05-M
