[Federal Register Volume 60, Number 92 (Friday, May 12, 1995)]
[Rules and Regulations]
[Pages 25612-25615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11782]
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[[Page 25613]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-231; Amendment Number 68R]
Ohio Regulatory Program Amendment
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is announcing the approval of 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 amendment was initiated by Ohio and is intended to make the Ohio
program as effective as the corresponding Federal regulations
concerning contemporaneous reclamation. Specifically, the amendment
defines the terms ``area mining,'' ``auger mining,'' and ``contour
mining''; specifies information required in permit operation plans and
mining reclamation plans; establishes time and distance schedules for
backfilling and grading for mining methods other than area and contour
mining; and requires the contemporaneous commencement of augering.
EFFECTIVE DATE: May 12, 1995.
FOR FURTHER INFORMATION CONTACT:
Mr. Robert H. Mooney, Acting Director, Columbus Field Office, Office of
Surface Mining Reclamation and Enforcement, 4480 Refugee Road, Suite
201, Columbus, Ohio 43232; Telephone: (614) 866-0578.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program.
II. Discussion 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. Information on the general background of the
Ohio program, including the Secretary's findings, the disposition of
comments, and a detailed explanation of the conditions of approval of
the Ohio program, can be found in the August 10, 1982, Federal Register
(47 FR 34688). Subsequent actions concerning the conditions of approval
and program amendments are identified at 30 CFR 935.11, 935.15, and
935.16.
II. Discussion of the Proposed Amendment
By letter dated May 17, 1994 (Administrative Record No. OH-2018),
the Ohio Department of Natural Resources, Division of Reclamation
(Ohio), submitted proposed Program Amendment Number 68 (PA 68). In this
amendment, Ohio proposed to revise three rules in the Ohio
Administrative Code (OAC) at 1501:13-1-02, 1501:13-4-05, and 1501:13-9-
13 to make the Ohio program as effective as the Federal regulations
concerning contemporaneous reclamation. As part of and in support of
proposed PA 68, Ohio also submitted a draft Policy/Procedure Directive
(PPD) which provides additional clarification and guidance on the
proposed Ohio rule requirements for contemporaneous reclamation.
OSM announced receipt of the proposed amendment in the May 26,
1994, Federal Register (59 FR 27253), and, in the same notice, 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 June 27, 1994.
OSM and Ohio staff met on August 22, 1994, to discuss OSM's
questions and concerns about PA 68 (Administrative Record No. OH-2093).
In response to OSM's August 22, 1994, questions and comments, Ohio
provided Revised Program Amendment Number 68 (PA 68R) by letter dated
March 1, 1995 (Administrative Record No. OH-2094). In PA 68R, Ohio
proposed further changes to the three rules and to the draft PPD. OSM
announced its receipt of PA 68R in the March 17, 1995, Federal Register
(60 FR 14400). The public comment period ended on April 3, 1995.
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 to the Ohio program. Only substantive changes to
Ohio's rules and the new Ohio PPD are discussed below. Rule revisions
which are not discussed below concern paragraph notations or editorial
or nonsubstantive wording changes intended to improve the clarity and
readability of the rules.
1. Area Mining
Ohio is adding new OAC section 1501:13-1-02 paragraph (J) to define
the term ``area mining'' to mean a method of surface coal mining that
involves making a series of parallel mining cuts against the highwall
created from the initial mining cut. Although there is no counterpart
Federal definition for this term, the Director finds that the proposed
definition is not inconsistent with the requirements of SMCRA and the
Federal regulations.
2. Auger Mining
Ohio is revising its definition of the term ``auger mining'' in OAC
section 1501:13-1-02 paragraph (K) to mean drilling holes or cutting
into an exposed coal seam at a highwall and transporting the coal to
the surface along an auger bit, by conveyor, or by other means. The
Director finds that this definition is no less effective than the
corresponding Federal definition of ``auger mining'' at 30 CFR 701.5.
3. Contour Mining
Ohio is adding new OAC section 1501:13-1-02 paragraph (CC) to
define the term ``contour mining'' to mean a method of surface coal
mining that involves making an initial mining cut along the contour of
a hillside to the maximum highwall height and then making subsequent
cuts along the same contour, placing the spoil in the preceding cut
where the coal has been removed. Although there is no counterpart
Federal definition for this term, the Director finds that the proposed
definition is not inconsistent with the requirements of SMCRA and the
Federal regulations.
4. Permit Operation Plan
Ohio is adding new OAC section 1501:13-4-05 paragraphs (A)(2)(a)
(i) through (iv) to require that the mining operation plan in permit
applications shall, at a minimum, identify the mining method to be
used, the maximum extent of cover to be mined, the locations where
mining will begin and end, and the direction of mining. For mining
methods other than area or contour mining, the mining operation plan
shall also include other information that demonstrates the orderly and
reasonable progression of mining. Such information shall include, but
not be limited to, spoil placement plans, proposed locations of haul
roads, and the intended timing of the mining operation. Mining
operation plans shall specify how the mining operation will meet the
time and distance requirements for contemporaneous reclamation
established in OAC section 1501:13-9-13.
Ohio's existing rule at OAC section 1501:13-4-05 paragraph
(A)(2)(a) is substantively identical to the corresponding Federal
regulation at 30 CFR 780.11(a) concerning the general
[[Page 25614]] requirements for mining operation plans. Although there
are no corresponding Federal regulations to the new requirements
proposed in OAC section 1501:13-4-05 paragraphs (A)(2)(a) (i) through
(iv), the Director finds that these new requirements are reasonable and
are not inconsistent with the Federal regulations at 30 CFR 780.11(a)
and with the revisions which Ohio is making elsewhere in this rule and
in other rules.
5. Mining Reclamation Plan
Ohio is revising OAC section 1501:13-4-05 paragraph (D)(2)(a) to
require that reclamation plans in permit applications shall contain a
detailed timetable for the completion of each major step of the
reclamation plan specific to the described mining method and addressing
the contemporaneous reclamation requirements of OAC section 1501:13-9-
13.
Ohio's existing rule at OAC section 1501:13-4-05 paragraph
(D)(2)(a) is substantively identical to the corresponding Federal
regulation at 30 CFR 780.18(b)(1) concerning the timetable for
completion of each major step in the reclamation plan. Although there
are no corresponding Federal regulations to the new requirements
proposed in OAC section 1501:13-4-05 paragraph (D)(2)(a), the Director
finds that these new requirements are reasonable and are not
inconsistent with the Federal regulations at 30 CFR 780.18(b)(1) and
with the revisions which Ohio is making elsewhere in this rule and in
other rules.
6. Contemporaneous Reclamation
A. Ohio is revising OAC section 1501:13-9-13 paragraphs (A),
(A)(1), and (A)(2) and is adding new paragraphs (A)(3) and (A)(4) to
clarify the rule language, to specify minimum time and distance
requirements for backfilling and grading for mining methods other than
contour or area mining, and to require the contemporaneous commencement
of augering after the creation of the highwall to be augered.
B. Ohio is adding new OAC section 1501:13-9-13 paragraph (A)(7) to
clarify that areas that are backfilled and rough graded shall closely
resemble the final ground surface configuration approved in the mining
and reclamation plan but that these areas are not necessarily ready for
resoiling or eligible for Phase I bond release.
C. Ohio is supplementing the requirements of OAC section 1501:13-9-
13 with proposed Policy/Procedure Directive (PPD) Regulatory 94-3,
``Contemporaneous Reclamation.'' This PPD provides clarification and
guidance on the requirements in the OAC for contemporaneous
reclamation.
The Federal regulations at 30 CFR 816/817.100 provide that
reclamation efforts shall occur as contemporaneously as practicable
(except where a variance for concurrent surface and underground mining
is issued under 30 CFR 785.18). However, the Federal regulations have
no counterpart to the specific time and distance requirements for
contemporaneous reclamation proposed by Ohio in OAC section 1501:13-9-
13 and in the accompanying PPD. On July 31, 1992 (57 FR 33876), OSM
suspended in full its specific backfilling and grading time and
distance requirements at 30 CFR 816.101. In that notice of suspension,
OSM stated that mining operations would continue to be subject to the
State-specific contemporaneous reclamation regulations of State and
Federal programs which were then in effect. OSM agreed that regulatory
authorities could set these State-specific time and distance schedules
based on local conditions.
Therefore, there are no corresponding Federal regulations to the
new requirements which Ohio has proposed in OAC section 1501:13-9-13
and in the new PPD. The Director finds that Ohio's new contemporaneous
reclamation requirements are reasonable and are not inconsistent with
the Federal regulations at 30 CFR 816/817.100 and with the revisions
which Ohio is making elsewhere in other rules.
IV. Summary and Disposition of Comments
Public Comments
On May 26, 1994, and March 17, 1995, the Director solicited public
comments and provided an opportunity for a public hearing on the
proposed amendment. OSM received comments on the amendment from the
Ohio Mining and Reclamation Association (OMRA) by letter dated April 1,
1995 (Administrative Record No. OH-2106). OMRA made several objections
to the amendment:
(1) Ohio has not held a hearing on the proposed rule changes. The
Director believes that this comment is not immediately relevant to his
decision on this amendment. The public hearing mentioned in the comment
is part of Ohio's internal rule-filing process. If further rule changes
become necessary as a result of comments received during Ohio's rule
filing, Ohio will resubmit those proposed changes to OSM for review
under the program amendment process.
(2) The proposed rule changes do not employ normal common sense
relative to contemporaneous reclamation in the areas of weather,
equipment failure, and multiple seam mining. The time constraints are
too restrictive and could result in Ohio issuing violations to mine
operators. The Director does not agree with this comment. As discussed
above, the Director has reviewed Ohio's proposed reclamation schedules
and found them to be reasonable and not inconsistent with the Federal
regulations at 30 CFR 816/817.100.
(3) The amendment seems to have eliminated the difference between
rough and final grading. The Director does not agree with this comment.
The proposed changes in the amendment concerning backfilling and rough
grading are not inconsistent with the Federal regulations at 30 CFR
816/817.100.
(4) The amendment reflects continued overregulation and
unreasonable demands by the Federal government. The Director does not
agree with this comment. As discussed above, OSM has deliberately
placed the responsibility for developing contemporaneous reclamation
standards with the State regulatory authorities most familiar with the
mining practices in their areas.
No other public comments were received. No public hearings were
held as no one requested the opportunity to provide testimony.
Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from the Regional Director of the
U.S. Environmental Protection Agency (EPA) and the heads of four other
Federal agencies and one State agency with an actual or potential
interest in the Ohio program. Nonsubstantive comments were received
from the EPA, the Soil Conservation Service, and the Mine Safety and
Health Administration. No other agency comments were received.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Ohio on May 17, 1994, and revised on March 1,
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
conform their programs with the Federal standards without undue delay.
Consistency of State and Federal standards is required by
SMCRA. [[Page 25615]]
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to a State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved programs. In the oversight
of the Ohio program, the Director will recognize only the approved
program, together with any consistent implementing policies,
directives, and other materials, and will require the enforcement by
Ohio of such provisions.
VI. Procedural Determinations
Executive Order 12866
This final 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 on 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: May 5, 1995.
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 for Part 935 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 935.15 is amended by adding new paragraph (www) to read
as follows:
Sec. 935.15 Approval of regulatory program amendments.
* * * * *
(www) The following amendment (Program Amendment 68R) pertaining to
the Ohio regulatory program, as submitted to OSM on May 17, 1994, and
revised on March 1, 1995, is approved, effective May 12, 1995:
Contemporaneous Reclamation.
[FR Doc. 95-11782 Filed 5-11-95; 8:45 am]
BILLING CODE 4310-05-M
