[Federal Register Volume 59, Number 83 (Monday, May 2, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10237]
[[Page Unknown]]
[Federal Register: May 2, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
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, with exceptions, 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 proposed amendment revises parts of the Ohio
Administrative Code (OAC) pertaining to land use and revegetation
success. It establishes revegetation success standards where the
postmining land use is undeveloped land and sampling procedures for
measuring vegetative ground cover, forage yield and tree and shrub
stocking.
The amendment is intended to revise the Ohio program to be
consistent with the corresponding Federal regulations, clarify
ambiguities, and encourage tree planting.
EFFECTIVE DATE: May 2, 1994.
FOR FURTHER INFORMATION CONTACT:
Mr. Richard J. Seibel, Director, Columbus Field Office, Office of
Surface Mining Reclamation and Enforcement, Eastland Professional
Plaza, 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
The subject of this final rule is a combination and resubmission of
two prior Ohio amendments, PA 25R and PA 56R (Administrative Record No.
OH-1944). This combined resubmission was submitted to OSM by Ohio on
October 21, 1993. OSM announced receipt of the proposed amendment in
the November 4, 1993, Federal Register (58 FR 58824) and in the same
notice opened the public comment period and provided opportunity for a
public hearing on the adequacy of the amendment. The public comment
period ended on December 6, 1993. The public hearing scheduled for
November 29, 1993, was not held because no one requested an opportunity
to testify.
The Ohio legislature through the Joint Committee on Agency Rule
Review approved the proposed amendment on November 27, 1993. The Ohio
Department of Natural Resources, Division of Reclamation (Ohio), has
delayed implementation of the rule until the Director of OSM makes his
decision on the proposed amendment. Set forth below is the history of
PA 25R and PA 56R.
Revised Program Amendment Number 25 (PA 25R)
On January 14, 1993 (58 FR 4330), the Director of OSM announced his
decision on a June 22, 1992, submission of PA 25R (Administrative
Record No. OH-1725). In that decision, the Director approved Ohio's
proposed revision to OAC 1501:13-9-15 (J)(1) adopting the requirement
that success of revegetation shall be measured using a statistically
valid sampling technique with a 90-percent statistical confidence
interval. However, the Director did not approve Ohio's visual (ocular)
method of evaluating ground cover as a statistically valid means of
performing that sampling. Therefore, the Director continued the
requirement at 30 CFR 935.16(f) that Ohio amend its program to include
a statistically valid sampling technique for evaluating ground cover in
order to be no less effective than the corresponding Federal
regulations at 30 CFR 816.116(a).
By letter dated June 11, 1994 (Administrative Record No. OH-1889),
Ohio resubmitted PA 25R. In that resubmission, Ohio proposed to delete
the recently approved requirements for statistical sampling of
revegetation and to substitute a mixed use of ocular evaluation and
statistical sampling under new paragraphs (G)(3)(b) (ii) and (iii) and
revised paragraph (K)(1) of OAC 1501:13-9-15.
OSM announced receipt of new PA 25R in the July 6, 1994, Federal
Register (58 FR 36178), and, in the same document, 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
August 5, 1993. The public hearing scheduled for August 2, 1993, was
not held because no one requested an opportunity to testify.
By letter dated September 13, 1993 (Administrative Record No. OH-
1917), OSM provided its questions and comments to Ohio on the June 11,
1993, resubmission of PA 25R. On October 12, 1993, Ohio requested and
received a one-week extension to the due date for its response to OSM's
September 13, 1993, letter (Administrative Record Nos. OH-1936 and
1937).
Ohio's October 21, 1993, amendment submission, which is the subject
of this final rule, was submitted in part to address OSM's September
13, 1993, questions and comments on PA 25R. Also, as part of the
October 21, 1993, submission, Ohio formally withdrew its earlier June
22, 1992, submission of PA 25R, which was partially approved by the
Director of OSM on January 14, 1993. On January 14, 1994, OSM sent Ohio
a final issue letter which the State responded to on February 23, 1994
(Administrative Record Nos. OH-1976 and OH-1989).
Revised Program Amendment Number 56 (PA 56R)
By letter dated May 1, 1992 (Administrative Record No. OH-1690),
Ohio submitted proposed PA 56. This amendment proposed changes to two
Ohio rules concerning measurement of revegetation success on pasture or
grazing land, undeveloped land, recreational areas, and previously
disturbed areas.
As part of and in support of PA 56, Ohio also submitted four draft
Policy/Procedure Directives entitled ``Measurement of productivity on
pasture and grazing land,'' ``Identification of areas for which the
premining land use is undeveloped land,'' ``Planting plans for areas
for which the approved postmining land use is undeveloped land,'' and
``Verification of proper planting of tree seedlings.'' These proposed
policy statements elaborated on and established criteria for the new
requirements in the two revised Ohio rules.
OSM announced receipt of PA 56 in the June 2, 1992, Federal
Register (57 FR 23178) and, in the same document, 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
July 2, 1992. The public hearing scheduled for June 29, 1992, was not
held because no one requested an opportunity to testify.
By letter dated January 12, 1993 (Administrative Record No. OH-
1803), Ohio resubmitted PA 56R in response to OSM's questions and
concerns. This revised amendment proposed additional modifications to
the rule at OAC 1501:13-9-15. OSM announced receipt of new PA 56R in
the March 22, 1993, Federal Register (58 FR 15315) and, in the same
document, 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 April 21, 1993. The public hearing scheduled
for April 16, 1993, was not held because no one requested an
opportunity to testify.
By letter dated October 14, 1993 (Administrative Record No. OH-
1939), OSM provided questions and comments to Ohio on the January 12,
1993, resubmission of PA 56R. Ohio's October 21, 1993, amendment
submission, which is the subject of this final rule, was submitted in
part to address OSM's October 14, 1993, questions and comments. On
January 14, 1994, OSM sent Ohio a final issue letter which the State
responded to on February 23, 1994 (Administrative Record Nos. OH-1976
and OH-1989).
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 will
be discussed in detail. Revisions which are not discussed below concern
nonsubstantive wording changes or revised cross-references and
paragraph notations that reflect organizational changes resulting from
this amendment.
The proposed amendment governs both surface mining activities and
underground mining activities. The Federal counterparts are 30 CFR part
816 for surface mining activities and 30 CFR part 817 for underground
mining activities. With a few exceptions, part 816 and part 817 are
substantively identical. OSM will discuss the proposed changes to
Ohio's rules in relation to the Federal rules governing surface mining
activities at 30 CFR part 816 with the understanding that such
discussion also applies to the Federal rules governing underground
mining activities at 30 CFR part 817. Any exceptions will be discussed
separately.
1. OAC 1501:13-4-06(E)(2)(g), Land Use Changes
Ohio is revising OAC 1501:13-4-06(E)(2)(g) to provide that a change
in the postmining land use pursuant to Ohio's postmining land rules at
OAC 1501:13-9-17 shall be considered a significant alteration of the
mining and reclamation plan in the original permit and shall be subject
to notice and hearing requirements. The Federal rules at 30 CFR 701.5
define land uses which are to be used by permit applicants to
characterize premining and postmining land uses. This Federal rule
further specifies that changes of land use from one category to another
shall be considered as a change to an alternative land use which is
subject to approval by the regulatory authority. 30 CFR 774.13(b)(2)
provides for the regulatory authority to establish guidelines
concerning the scale or extent of permit revisions for which all the
permit application information requirements and procedures including
notice, public participation, and notice of decision requirements shall
apply. Such requirements and procedures are to apply, at a minimum, to
all significant permit revisions. Furthermore, in the October 1, 1980,
Federal Register (45 FR 64908), OSM published an interpretive rule, 30
CFR 784.200, pertaining to the approval of alternative postmining land
uses through the permit revision procedures of 30 CFR 774.13. In this
interpretive rule, OSM stated that it considered an application for a
permit revision to adopt an alternative postmining land use to
constitute a significant alteration from the mining operations
contemplated by the original permit, and to be subject to the public
notice and hearing requirements, as well as other provisions, of 30 CFR
parts 773 and 775. The Director, therefore, finds that the proposed
revisions to OAC 1501:13-4-06(E)(2)(g) bring this rule into conformity
with the Federal interpretive rule, and are no less effective than 30
CFR 701.5 and 774.13(b)(2).
2. OAC 1501:13-9-15 (F), (G), (H), Removed and Redesignated
Ohio is proposing to remove paragraphs (F), (G), and (H) and
redesignate the requirements found therein as proposed paragraphs (K),
(L) and (N). The Director finds that the proposed deletions are
duplicative of requirements found elsewhere in the Ohio program and do
not render the program less effective than the Federal rules.
3. OAC 1501:13-9-15(F)(1), Measurement of Revegetation Success
A. General Revegetation Requirements
Ohio is proposing to require as part of OAC 1501:13-9-15(F)(1) that
the general revegetation requirements found in paragraphs (B) and (C)
be met in all revegetation efforts. Paragraph (B) of OAC 1501:13-9-15
requires the vegetative cover of the reclaimed area to be diverse,
effective, and permanent; comprised of native species to the area; at
least equal in extent of cover to the natural vegetation; and capable
of stabilizing the soil surface from erosion. Paragraph (C) of OAC
1501:13-9-15 requires the reestablished plant species to be compatible
with the approved postmining use; have the same seasonal
characteristics of growth as the original vegetation; be capable of
self-regeneration and plant succession; be compatible with the plant
and animal species of the area; and meet the requirements of applicable
State and Federal seed, poisonous noxious plant, and introduced species
laws or regulations. The Federal rules at 30 CFR 816.116(a) contain a
similar provision which requires the success of revegetation to be
judged, in part, upon the satisfaction of the general standards for
revegetation at 30 CFR 816.111. Therefore, the Director finds that the
revised State rule is no less effective than its Federal counterpart in
this respect.
Part A of Ohio's ``Guidelines for Evaluating Revegetation Success''
which were also submitted as part of this amendment provide that:
At the time ground cover is evaluated to determine whether
plants are established and controlling erosion, the inspector shall
also evaluate species composition and diversity. This evaluation is
based primarily on visual observation in the field, although
receipts or tags from seed packages are also reviewed.
This language indicates that species composition and diversity will
be evaluated only at the time of phase II bond release (see OAC
1501:13-9-15 (G)(2) and (M)(2) which contain similar language).
However, the preamble to the Federal revegetation rules at 30 CFR
816.116 states that these parameters must be evaluated at the time of
final bond release. ``The final bond release inspection will evaluate
achievement of the general requirements of 30 CFR 816.111 in addition
to the success standards of 30 CFR 816.116 (53 FR 34641, September 7,
1988).'' Therefore, the Director finds that this provision of the
guidelines is less effective than the Federal rules and he is requiring
that Ohio amend its program to require evaluation of the applicable
parameters set forth in OAC 1501:13-9-15 (B) and (C), the State
counterparts to 30 CFR 816.111, at the time of final bond release. The
methodology to be used in evaluation must be clearly identified.
B. Evaluating of Specific Revegetation Success Standards
Ohio also proposes to add language to OAC 1501:13-9-15(F)(1) to
require that the Chief of the Ohio Department of Natural Resources,
Division of Reclamation (the Chief) compile guidelines specifying
statistically valid sampling techniques for measuring success of ground
cover, production, or stocking at the time of final bond release. The
statistical sampling techniques shall use a 90 percent confidence
interval (i.e., a one-sided test with a 0.10 alpha error).
The Federal rules at 30 CFR 816.116(a)(1) state that standards of
success and statistically valid sampling techniques for measuring
success shall be selected by the regulatory authority and included in
an approved regulatory program. In the preamble to this rule, OSM
indicated that this could be accomplished through either rules or by
guidelines which are incorporated into the State program by reference
(48 FR 40150, September 2, 1983). Ohio has submitted to OSM a separate
document titled ``Guidelines for Evaluating Revegetation Success''
which is proposed for incorporation into the State program to satisfy
OAC 1501:13-9-15(F)(1). This document, which covers data collection,
recording, and analysis, has three parts:
Part A. Ground Cover: This part outlines Ohio's adaptation of the
point-intercept ``stick'' method developed by John C. Rennie and Robert
E. Farmer et al; which Ohio will use to evaluate herbaceous ground
cover and to evaluate tree and shrub survival concurrently with
herbaceous ground cover.
Part B. Stocking of Trees and Shrubs: This part outlines Ohio's
adaptation of the Rennie-Farmer method to evaluate tree and shrub
survival independent of ground cover using circular plots and tree and
shrub counts within those plots. It also specifies handling and
planting techniques for trees and shrubs.
Part C. Productivity: This part outlines Ohio's methods for
measuring hay production on pasture, grazing land, and cropland and for
measuring production on cropland planted with corn, oats, and wheat.
In his January 14, 1994, issue letter to Ohio, the Director noted
two errors in the proposed formula to determine sample size found on
page 13 of the ``Guidelines for Evaluating Revegetation Success.''
These errors involved the appropriate ``t'' value and the expression of
acceptable error which appears in the denominator of the formula
(Administrative Record No. OH-1976). Without correction, the formula
will result in an inappropriate sample size. Ohio has agreed to make
the necessary revisions but has not yet done so. The Director finds
that, with this exception, Ohio's proposed procedures to estimate mean
ground cover, stocking and yield are based upon and consistent with
statistical sampling theory, and that this aspect of the requirements
of 30 CFR 816.116(a)(1) have been satisfied. The Director notes that
only the sampling techniques set forth in these guidelines may be used
to evaluate revegetation success under the Ohio program.
The State has also proposed at OAC 1501:13-9-15 paragraphs (G)
through (N) success standards for ground cover, production and
stocking, where appropriate, for various postmining land uses and has
adopted the requirement in 30 CFR 816.116(a)(2) that a 90 percent
statistical confidence interval be used when testing whether the sample
mean is equal to or greater than the approved success standard. The
Director finds that, with the exceptions noted above, proposed OAC
1501:13-9-15(F)(1) and the document ``Guidelines for Evaluating
Revegetation Success'' satisfy the requirements of and are no less
effective than 30 CFR 816.116(a) (1) and (2). Accordingly, he is
removing the existing requirement at 30 CFR 935.16(f) to include in the
Ohio program statistically valid techniques for evaluating revegetation
success and adding a new requirement that the document ``Guidelines for
Evaluating Revegetation Success'' be revised to include the correct
formula for determining sample size.
4. OAC 1501:13-9-15(F)(2)(b)(ii), Timing for Row Crops
For areas to be used for agricultural cropland, including prime
farmland, Ohio proposes to require the five-year period of extended
responsibility to commence on the date on which the initial planting of
row crops has been completed. The initial planting will be subject to
verification by the Chief. This proposed rule repeats the requirements
of existing rules OAC 1501:13-9-15(I) (4)(a) and (5)(e), which were
previously approved by the Director. The Director finds that the
removal of OAC 1501:13-9-15(I) (4)(a) and (5)(e) and the reinstatement
of the requirements therein as proposed OAC 1501:13-9-15(F)(2)(b)(ii)
does not render the Ohio program less effective than 30 CFR 816.116(c).
5. OAC 1501:13-9-15(F)(2)(c)(ii), Rill and Gully Repair
Ohio is revising OAC 1501:13-9-15(F)(2)(c)(ii) to clarify that the
Chief will classify instances of rill and gully erosion repair as
either limited or extensive based on the extent of repairs needed and
the cause of the erosion. The Chief will consider extensive repairs to
be an augmentative practice that will restart the extended period of
responsibility. Limited repair of rills and gullies will not be
considered augmentative. The Director finds that this clarification is
no less effective than 30 CFR 816.116(c)(4) and is consistent with the
preamble which states that the ``repair of rills and gullies is not
always simply good husbandry'' (53 FR 34642, September 7, 1988).
6. OAC 1501:13-9-15(I)(3), Removed and Redesignated
Ohio proposes to remove OAC 1501:13-9-15(I)(3), which is an
introductory statement for rules governing pasture or grazing land, and
redesignate and reword the contents thereof as proposed OAC 1501:13-9-
15(G)--Revegetation Success Standards for Pasture or Grazing Land. The
Director finds that this simplification of regulatory language and
structure does not change the meaning of the provision in question and
that it, therefore, can be approved.
7. OAC 1501:13-9-15(G)(3), Success Standards for Pasture or Grazing
Lands
Ohio is revising OAC 1501:13-9-15 (G)(3) (a) and (b) to provide
that revegetation shall be determined to be successful for phase III
bond release on pasture or grazing land when the following criteria are
met: (1) the production of planted and non-noxious volunteer species
equal or exceed the county average yield for hay for any two years of
the period of extended responsibility, except the first year, (2) the
ground cover equals or exceeds 90 percent for the last year of the
period of extended responsibility and one additional year, except the
first year, and (3) no single area with less than 30 percent cover
exceeds the lesser of 3,000 square feet or 0.3 percent of the land
affected.
The success standards for areas developed for use as pasture or
grazing land at 30 CFR 816.116(b)(1) require the ground cover and
production of living plants on the revegetated area to equal or exceed
that of a reference area or other success standards approved by the
regulatory authority. Ohio has proposed to use the average yield from
all hayland in the county where the mine is located as the standard for
phase III bond release. Average county yields for hay are published
annually by the Ohio Department of Agriculture without classification
as to soil type, management intensity, or past mining history. The
Federal rules at 30 CFR 816.116(a)(2) require standards for success to
include criteria representative of unmined lands in the area being
reclaimed. The potential problem of including mined land in the
calculation of average county yields has been evaluated by the Ohio
Agricultural Statistics Service (Administrative Record No. OH-1195). It
was found that there are no statistically significant differences
between county means developed with and without reclaimed land. The
Director, therefore, finds that the average county yield for hayland in
Ohio is representative of yield on unmined land in the State and that
in this respect the proposed rule at OAC 1501:13-9-15(G)(3)(a) is no
less effective than 30 CFR 816.116(a)(2). Furthermore, the approval of
average county yields in Ohio is consistent with the Director's
decision to approve average county yield in the Tennessee Federal
Program (30 CFR 942.816(f)(1)).
The Federal rules at 30 CFR 816.116(b)(1) require that success for
pasture and grazing land be based not only upon production but also
ground cover. Ohio has proposed a ground cover standard of 90 percent
cover combined with the existing requirement that no single area with
less than 30 percent cover exceeds the lesser of 3,000 square feet or
0.3 percent of the land affected. A 90 percent ground cover and the
associated sparse area standard are consistent with a postmining land
use of pasture or grazing land where the objective is forage production
and the decision by the Director to require a similar standard under
the Tennessee Federal Program (30 CFR 942.816(f)(1)). The Director,
therefore, finds that the ground cover requirements proposed by Ohio
for pasture and grazing land at OAC 1501:13-9-15(G)(3)(b) are no less
effective than 30 CFR 816.116(b)(1).
Ohio is proposing to require for phase III bond release that the
production standard be met for any two years of the period of extended
responsibility except the first year and that the ground cover standard
be met for the last year of the period of responsibility and one
additional year, except the first year. OSM's rules at 30 CFR
816.116(c)(2) require mine operators in areas of more than 26.0 inches
of annual average precipitation, who select a postmining land use of
pasture or grazing land, to equal or exceed the approved success
standard during the growing seasons of any two years of the
responsibility period, except the first year. The Ohio rule has an
equivalent requirement. For this reason, the Director finds that Ohio's
proposed pasture or grazing land standards at OAC 1501:13-9-15(G)(3)
are no less effective than 30 CFR 816.116 (b) and (c).
8. OAC 1501:13-9-15(I)(3)(C) (a), (b), (c), Removed
Ohio proposes to remove ground cover requirements in paragraphs
(I)(3)(C) (a), (b), and (c) for pasture and grazing land and replace
them with the proposed standards at OAC 1501:13-9-15(G)(3). The
Director finds that this removal does not render Ohio's rules less
effective than the Federal rules because, as discussed in finding 7
above, the standards established in OAC 1501:13-9-15(G)(3) are
consistent with Federal requirements.
9. OAC 1501:13-9-15(J)(1)(b) and (J)(2), Success Standards for
Industrial, Residential, or Commercial Areas
Ohio proposes to revise OAC 1501:13-9-15(J)(1)(b) to provide that,
for areas to be developed within two years after regarding is
completed, revegetation success for phase III bond release shall be
evaluated in the last year of the period of extended responsibility.
The Federal counterpart at 30 CFR 816.116(c)(2) likewise requires that
revegetation on such areas equal or exceed the applicable success
standard during the growing season of the last year of the
responsibility period. Accordingly, the Director finds that OAC
1501:13-9-15(J)(1)(b) is no less effective than 30 CFR 816.116(c)(2).
Ohio proposes to revise its ground cover standards for phase II and
phase III bond release for areas for which an approved industrial,
residential, or commercial postmining land use will not be achieved
until two or more years after regrading is completed. The proposed rule
at OAC 1501:13-9-15(J)(2) requires the ground cover success standards
at OAC 1501:13-9-15(G)(2) to be met for phase II bond release.
Paragraph (G)(2) provides that revegetation shall be determined to be
successful when the species planted, in accordance with the approved
reclamation plan, are established and the area has sufficient ground
cover to control erosion. The Director finds that this requirement is
consistent with 30 CFR 800.40(c)(2), which specifies that phase II bond
release may occur when, among other things, revegetation is established
in accordance with the reclamation plan.
For phase III bond release, the proposed rule provides that ground
cover in the last year of the period of extended responsibility must
equal or exceed 90 percent. In addition, no single area with less than
30 percent cover may exceed the lesser of 3,000 square feet or 0.3
percent of the land affected. The Federal rules do not contain specific
revegetation success standards for areas to be developed for
industrial, commercial, or residential use two or more years after
regrading is completed. Although OSM proposed standards on March 23,
1982 (47 FR 12596), they were never adopted. The preamble to the final
rule promulgated on September 2, 1983 (48 FR 40154) provides no
guidance as to what standards apply to such lands. In the absence of
specific Federal standards or guidance, the only applicable portion of
30 CFR 816.116(b) is the requirement that standards for success ``be
applied in accordance with the approved postmining land use.'' For
areas to be developed for industrial, commercial, or residential use,
ground cover is the most appropriate parameter since erosion control
and stability are an integral part of the postmining land use, while
woody plants (stocking) and vegetative productivity are not. Because
the ground cover standard proposed by Ohio is equal to that required
for pasture land, it should be sufficient to control erosion. Under OAC
1501:13-9-15(F), such areas would also have to comply with OAC 1501:13-
9-15 (B) and (C), the State counterparts to the general revegetation
requirements of 30 CFR 816.111, as required by 30 CFR 816.116(a).
Therefore, the Director finds that Ohio's proposed phase III bond
release standards for areas to be developed for industrial, commercial,
or residential use two or more years after regrading is completed are
consistent with the applicable provisions of 30 CFR 816.116 an no less
stringent than sections 515(b) (19) and (20) of SMCRA.
10. OAC 1501:13-9-15(K)(3), General Requirements for Woody Vegetation
Where the approved postmining land use is commercial forest,
noncommercial forest, or shelterbelts, Ohio proposes that the Chief
shall determine the appropriate species, stocking and planting
arrangements for both woody and herbaceous plants after consultation
with and approval by the Ohio Division of Forestry. These same
revegetation considerations will also be determined by the Chief after
consultation with the approval by the Ohio Division of Wildlife (DOW)
for areas where the approved postmining land use is fish and wildlife
habitat or undeveloped land. The State's proposed rule includes
provisions formerly found at OAC 1501:13-9-15 (F), (G), and (H), which
were previously approved as no less effective than 30 CFR
816.116(b)(3)(i), which requires that minimum stocking and planting
arrangements for woody plants be specified by the regulatory authority
after consultation with and approval by the State agencies responsible
for the administration of forestry and wildlife programs. The Director,
therefore, finds that proposed OAC 1501:13-9-15(K)(3) remains no less
effective than 30 CFR 816.116(b)(3)(i).
11. OAC 1501:13-9-15(I)(8) (b), (c), (d), Removal in Part
Ohio proposes to remove paragraphs (I)(8) (b) and (c), which
require tree and shrub species to be compatible with the postmining
land use and herbaceous cover species to be compatible with the growth
of acceptable trees and shrubs. Since the requirement for tree and
shrub species to be compatible with the postmining land use duplicates
OAC 1501:13-9-15(C)(1)(a), its removal will not render the Ohio program
less effective than the Federal rules at 30 CFR 816.111(b)(1), which
contain a similar requirement. Likewise, because there is no Federal
rule which specifically requires that herbaceous species be compatible
with trees and shrubs, the removal of this State rule will not render
the Ohio program less effective than the Federal rules. Ohio has
retained this requirement in proposed OAC 1501:13-9-15(M)(1), which
applies to areas with a postmining land use of undeveloped land. In
addition, both of the deleted provisions are implied requirements of
OAC 1501:13-9-15(K)(3), which addresses appropriate species of trees
and shrubs and appropriate mixtures of herbaceous species.
Also proposed for removal is paragraph (I)(8)(d), which provides
that the five-year period of extended responsibility will begin on the
date of the planting of the approved woody plant species or the last
augmented seeding of the herbaceous species, whichever occurs later.
This requirement is duplicative of the general requirements for
measuring revegetation success at OAC 1501:13-9-15(F)(2)(b)(i), which
states that the five-year period of extended responsibility shall begin
on the date of the last augmented seeding, fertilizing, planting, or
other work necessary to ensure successful revegetation. The Director,
therefore, finds that the removal of OAC 1501:13-9-15(I)(8) (b), (c),
and (d) will not render the Ohio program less effective than the
Federal rules at 30 CFR 816.111 and 816.116.
12. OAC 1501:13-9-15(L)(2), Ground Cover Success Standards for
Postmining Land Uses Involving Woody Vegetation
Ohio is proposing to revise OAC 1501:13-9-15(L)(2) to provide that,
with respect to ground cover, revegetation shall be determined to be
successful for a phase III bond release if the five-year period of
extended responsibility has expired and the herbaceous ground cover in
the last year is at least 70 percent. This provision applies to areas
where the approved postmining land use is commercial forest,
noncommercial forest, shelterbelts, or fish and wildlife habitat. The
Federal rules at 30 CFR 816.116(c)(2) require areas with these approved
postmining land uses to meet the applicable success standard during the
growing season of the last year of the responsibility period. 30 CFR
816.116(b)(3)(iii) requires the vegetative ground cover at the time of
phase III bond release to be not less than that required to achieve the
approved postmining land use. In recognition of the difficulty of
establishing trees and shrubs in dense herbaceous cover, OSM has
previously accepted a minimum vegetative ground cover of 70 percent for
postmining land uses involving woody plants in States with more than
26.0 inches of annual average precipitation (44 FR 15237, 15239-40,
March 13, 1979). The Director, therefore, finds that OAC 1501:13-9-
15(L)(2) is no less effective than 30 CFR 816.116(b)(3) and (c)(2).
13. OAC 1501:13-9-15(L)(2)(a), Commercial Forest
Ohio is proposing to revise OAC 1501:13-9-15(L)(2)(a) by adding the
requirement that a minimum of 75 percent of the required trees per acre
needed for phase III bond release where the postmining land use is
commercial forest land shall be commercial tree species. OSM removed an
identical provision from the Federal rules on September 2, 1983 (48 FR
40153), in order to provide States the flexibility to establish
standards based on local and regional conditions. Under 30 CFR
816.116(b)(3)(i), such standards must be developed in consultation with
and have the approval of the Ohio Division of Forestry. The Director
finds that OAC 1501:13-9-15(L)(2)(a) is no less effective than 30 CFR
816.116(b)(3)(i), provided Ohio submits documentation to OSM indicating
that approval from the Division of Forestry has been obtained. Until
such time, Division of Forestry approval must be obtained on a permit-
specific basis in accordance with OAC 1501:13-9-15(K)(3).
14. OAC 1501:13-9-15(L)(2)(c), Noncommercial Forest or Shelterbelts
The phrase ``on each acre on which trees and shrubs are to be
planted'' has been added to paragraphs (L)(1)(a), (L)(2)(a), (L)(2)(b),
and (L)(2)(c) to clarify that stocking rates for trees and shrubs only
apply to those areas where trees and shrubs are to be planted as
indicated in the approved reclamation plan. The Director finds that
this clarification does not render the State's rules less effective
than their Federal counterparts which also apply only to areas upon
which woody plants are to be planted.
Ohio is proposing to add paragraph (L)(2)(c), which requires for
phase III bond release, where the postmining land use is noncommercial
forest or shelterbelts, a minimum of 450 countable trees per acre, of
which 80 percent must have been in place for at least three years. The
Federal rules at 30 CFR 816.116(b)(3)(i) provide that minimum stocking
and planting arrangement shall be determined by the regulatory
authority and that at the time of bond release, at least 80 percent of
the trees and shrubs used to determine such success shall have been in
place for 60 percent of the applicable minimum period of
responsibility. In Ohio's case, 60 percent of the five-year
responsibility period is three years. The Director, therefore, finds
that OAC 1501:13-9-15 paragraph (L)(2)(c) is no less effective than 30
CFR 816.116(b)(3).
15. OAC 1501:13-9-15(I)(8)(f)(ii), Removed
Ohio is proposing to remove paragraph (I)(8)(f)(ii), which requires
for phase III bond release where the postmining land use is commercial
forest, noncommercial forest, shelterbelts, or fish and wildlife
habitat that the herbaceous ground cover be the greater of 30 percent
or sufficient to control erosion. This provision has been replaced by
proposed OAC 1501:13-9-15(L)(2) which sets a new minimum ground cover
standard of 70 percent for phase III bond release. Because the new
standard is potentially more protective of the environment, the
Director finds that the removal of OAC 1501:13-9-15(I)(8)(f)(ii) can be
approved. However, the Director notes that this standard cannot
supersede the general requirement of OAC 1501:13-9-15(B)(4), which
provides that revegetation must be capable of stabilizing the soil
surface from erosion. Therefore, if 70 percent cover is inadequate to
control erosion, a greater degree of cover must be established before
final bond release can be approved.
16. OAC 1501:13-9-15(M), Success Standards for Undeveloped Land
A. Background and Description of Proposed Amendment
Undeveloped land is defined by Ohio at OAC 1501:13-9-17(C)(10) as
``land that is not currently being used or managed or, if previously
used or managed, is land that has been allowed to return naturally to
an undeveloped state or has been allowed to return to forest through
natural succession.'' This is identical to the Federal definition of
``undeveloped land or land with no current use or management'' at 30
CFR 701.5.
Under OAC 1501:13-9-17, undeveloped land can be approved as a
postmining land use; however, the proposed success standards for
undeveloped land will apply only in those situations where the
premining land use is undeveloped land. Where both the premining and
postmining land use is undeveloped land, the permittee will be required
to reclaim the disturbed area to the undeveloped land use success
standards in OAC 1501:13-9-15(M). Where the postmining land use is
undeveloped land, but the premining land use is not, the permittee is
required to obtain approval for a land use change and to reclaim the
disturbed area to the forestland/fish and wildlife habitat revegetation
standards found at OAC 1501:13-9-15(L).
Ohio's proposed success standards for undeveloped land at OAC
1501:13-9-15(M) will require the success of revegetation to be
determined on the basis of ground cover and the proper planting of
appropriate tree and shrub species specified in the permittee's
approved planting plan. To be acceptable, a planting plan must include
tree or shrub planting on 10 to 50 percent of the revegetated area.
Planting locations must include slopes steeper than 20 degrees and the
area along drainways and permanent sources of water.
The requirements of OAC 1501:13-9-15(M) are supplemented by Policy/
Procedure Directive, Regulatory 94-2, ``Planting plans for areas for
which the approved postmining land use is undeveloped land'' which
became effective on March 15, 1994. The purpose of this Policy/
Procedure Directive is to provide standard criteria for use by the
Division of Reclamation's (DOR) Permitting Section to review the
planting plans for areas where the approved postmining land use is
undeveloped land. Under the directive, permittees will be required to
plant a minimum of 600 seedlings per acre on the portion of the permit
area where planting of trees or shrubs is to be required. Ten to 30
percent of the permit area must be planted to trees and shrubs where
herbaceous cover has been planted and the permittee has obtained an
approved postmining land use change from pastureland to undeveloped
land. Thirty to 50 percent of the permit area must be planted to trees
and shrubs where a permittee has obtained a postmining land use change
to undeveloped land prior to the planting of herbaceous cover or where
undeveloped land is the approved postmining land use at the time of
permit application approval. An acceptable planting plan must include
at least four hardwood tree species or shrub species selected from the
State's approved list and at least one coniferous tree species selected
from the State's approved list. The approved species list to part of
the directive.
The Directive also specifies acceptable seed mixes of herbaceous
species. These seed mixes are designed to enhance wildlife habitat and
to be compatible with tree planting efforts as required under OAC
1501:13-9-15(M)(1). Kentucky 31 Fescue (Festuca arundinacea) and
Sericea Lespedeza (Lespedeza cunerta) are prohibited from all plantings
on undeveloped land because neither species benefits wildlife and
neither is compatible with tree planting efforts. This language in the
Directive supplements the requirement of proposed OAC 1501:13-9-
15(M)(1) that selected tree and shrub species and herbaceous ground
cover species have value as wildlife habitat and that the herbaceous
ground cover species be compatible with the growth of trees and shrubs.
Under OAC 1501:13-9-15(K)(2), which is incorporated by reference in
OAC 1501:13-9-15(M)(1), quality planting stock and proven field
techniques in the science of woody revegetation must be employed on all
areas where the postmining land use is undeveloped land. This
requirement is reinforced and elaborated upon in the document
``Guidelines for Evaluating Revegetation Success,'' which has been
incorporated into the State's regulatory program. Section B.2 of the
document describes in detail the handling and planting practices for
seedlings that permittees are expected to follow. Each permittee must
submit to DOR, within one week of the completion of planting, a form on
which to verify the planting of tree and shrub seedlings. Upon receipt
of the planting verification form, the DOR shall, within one week,
inspect the area that has been planted to determine whether sufficient
numbers of the appropriate species have been planted in the
configuration shown in the approved planting plan. If the planting is
approved, the verification form is signed by the inspector and returned
to the permittee for submittal with the permittee's request for phase
III bond release.
In OAC 1501:13-9-15(M)(2), revegetation on undeveloped land will be
found successful for phase II bond release when the herbaceous ground
cover species are established and provide sufficient ground cover to
control erosion. The adequacy of ground cover to control erosion will
be determined by DOR's reclamation inspectors based on an ocular
inspection of the disturbed area.
Under OAC 1501:13-9-15(M)(3), revegetation on undeveloped land will
be found successful for a phase III bond release when the five-year
period of extended responsibility has expired and acceptable species of
trees and shrubs have been properly planted in accordance with the
approved planting plan at a rate of 600 trees or shrubs per acre on
each acre on which trees or shrubs are to be planted. In addition, the
herbaceous ground cover must at least equal 70 percent on areas where
trees and shrubs have been planted and at least equal 90 percent or
more on areas where no trees and shrubs have been planted. Ground cover
will be measured using a point-intercept, systematic sampling
procedure. These standards are to be applied to the last year of the
period of extended responsibility for revegetation success. Survival of
tree or shrub plantings is not a requirement for phase III bond
release. The permittee must show by submitting a planting verification
form signed by a DOR reclamation inspector that proper planting
techniques have bean used and that the trees and shrubs have been
planted in approved numbers and locations.
In acting on Ohio's proposed amendment at OAC 1501:13-9-15(M), OSM
is proposing to clarify agency policy concerning the appropriateness of
undeveloped land as a postmining land use and the applicable
revegetation performance standards.
B. Undeveloped Land as a Postmining Land Use
In the past, OSM policy concerning undeveloped land as a postmining
land use has not been clearly defined. The Federal definition of ``land
use'' at 30 CFR 701.5 has always recognized ``undeveloped land or no
current use or land management'' as a distinct land use category.
However, the Federal regulations at 30 CFR 816.116(b) do not establish
specific revegetation success standards for undeveloped land whereas
such standards exist for other defined land use categories. OSM has
sometimes interpreted this omission to mean that undeveloped land is
not an acceptable postmining land use. At other times, OSM has treated
this omission as a regulatory void that States are permitted to fill,
in keeping with the concept of State primacy for the regulation of
surface coal mining and reclamation operations, as established in
section 101(f) of SMCRA.
On May 8, 1991 (56 FR 21270), OSM declined to approve a proposed
State program amendment submitted by Louisiana that would have
established undeveloped land as a separate and distinct postmining land
use category. In explaining this decision, OSM stated that the agency
``does not recognize undeveloped land as a postmining land use because
the intention of the reclamation is to return mined land to a managed
land use. Undeveloped land is not managed.'' Finding 10(h), 56 FR
21276. However, in finding 1(g) (57 FR 48726, 48728, October 28, 1992)
of a final rule document announcing a decision on a subsequent
Louisiana program amendment, OSM modified this position to recognize
undeveloped land as a legitimate postmining land use under certain
circumstances:
``[U]ndeveloped land'' can only be designated as a postmining
land use where it was the premining land use and under no
circumstances could undeveloped land be proposed as an alternative
postmining land use because it does not represent a higher or better
use as required at 30 CFR 816.133(a).
During the same timeframe, OSM also took several actions that did
not adhere to the principles enunciated in the Louisiana program
amendment decisions. On February 5, 1991 (finding 66, 56 FR 4542,
4554), OSM unconditionally approved without explanation or discussion
an Alabama program amendment that contained separate and distinct
revegetation success standards for lands with a postmining land use of
undeveloped land. This approved of Alabama's amendment was followed by
a February 28, 1992, letter from the Deputy Director of OSM, to the
Director of the Surface Mining and Reclamation Division of the Texas
Railroad Commission. In this letter, OSM found that the Texas
regulatory authority had not abused its discretion by approving
undeveloped land as a higher and better alternative postmining land use
for a site with a premining land use of pastureland.
Upon careful review of the Act, its implementing regulations and
their preambles, OSM has determined that the policy established in the
Alabama and Texas decisions is more appropriate and better supported
then the principles advanced in the Louisiana decisions. There is no
language in the revegetation regulations at 30 CFR 816.116, the land
use regulations at 30 CFR 816.133, the definitions of ``land use'' and
``higher or better uses'' in 30 CFR 701.5, or their preambles that
would either prohibit undeveloped land as a postmining land use or
restrict such designations to situations in which the premining use was
undeveloped land. Consistency with SMCRA is not an issue since the Act
does not identify acceptable postmining land use categories or define
higher or better uses.
Furthermore, the Louisiana program amendment findings seem to be
inconsistent with the preamble to the definition of ``land use'' in 30
CFR 701.5, as revised on September 1, 1983 (48 FR 39892, 39893), which
affirms the statement in the preamble to the corresponding proposed
rule that the definition's land use categories are not hierarchical for
purposes of determining higher or better postmining land uses.
Specifically, the preamble to the proposed rule provides that:
[T]he ten categories of land use in the existing definition of
land use are not hierarchical. That is, one land use category is not
automatically a higher or better use than another. In each
situation, the regulatory authority has to compare the values and
benefits of the postmining alternative land use to the values and
benefits of the premining land uses.
47 FR 16152, 16155, April 14, 1982.
Including undeveloped land, the definition contains only ten land
use categories, none of which have undergone material change since
1979. Therefore, it appears that the Secretary did not intend to
exclude undeveloped land from consideration as either a postmining land
use or a higher or better use.
In addition, on September 1, 1983, OSM defined ``higher or better
uses'' as land uses that have a higher economic value or nonmonetary
benefit to either the landowner or the community than the premining
land uses (48 FR 39892, 39903). Since undeveloped land can provide
higher ecological benefits than such premining uses as cropland and
pastureland, the exclusion of undeveloped land as an acceptable
alternative postmining land use category would be inconsistent with the
definition.
The Director is interpreting the land use and revegetation
provisions of SMCRA and the Federal regulations in a manner that will
reverse the positions taken in the Louisiana program amendment
decisions and will support the approval of the proposed Ohio program
amendment. The Director finds that proposed OAC 1501:13-9-15(M), which
establishes undeveloped land as a postmining land use, is consistent
with SMCRA and does not render Ohio's rules less effective than 30 CFR
701.5, 816.116 and 816.133.
C. Revegetation Success Standards for Undeveloped Land
As noted above, the Federal regulations at 30 CFR 816.116(b) do not
establish specific revegetation success standards for undeveloped land
whereas such standards exist for other defined land use categories. In
the case of the Louisiana program amendments discussed above, OSM
interpreted this omission to mean that all mined lands, including areas
with either a premining or designated postmining land use of
undeveloped land, must be reclaimed to one of the land uses
specifically addressed by the Federal regulations at 30 CFR 816.116(b).
However, OSM did not apply this interpretation in the Alabama and Texas
cases discussed above.
The Louisiana decisions suggest that revegetation success standards
for undeveloped land must be equivalent to those for one or more of the
managed land uses that the site was capable of supporting prior to
mining. The Federal rules do not compel such a conclusion. Although the
preamble to 30 CFR 816.133(b) (44 FR 14902, 15243, March 13, 1979)
indicates that Congress did not intend to allow mismanagement prior to
mining to reduce the standards for reclamation success, a lack of
management, which would likely characterize undeveloped land, does not
equate to mismanagement.
Section 515(b)(2) of SMCRA requires that land affected by surface
coal mining operations be restored to a condition capable of supporting
the uses which it was capable of supporting prior to any mining or to
higher or better uses of which there is a reasonable likelihood.
However, this capability demonstration is independent of the
revegetation requirements of paragraphs (b)(19) and (b)(20) of section
515 of SMCRA. There is no language that would compel the adoption of
revegetation success standards based on the land's potential uses prior
to mining rather than the approved postmining land use. Indeed, in the
preamble to 30 CFR 816.133(a) as revised on September 1, 1983 (48 FR
39892, 39897), the Secretary states that:
[T]he final rule emphasizes the land's capability, both with
regard to premining uses and higher or better uses, in this
implementation of Section 515(b)(2) of the Act. This requirement is
distinct from the revegetation or prime farmland rules, which under
some circumstances may require actual production on the reclaimed
land as a measure of successful reclamation.
It is also impractical to interpret section 515(b)(2) of SMCRA and
30 CFR 816.133 as requiring that revegetation success standards be
adequate to demonstrate that the land has been restored to conditions
that are capable of supporting the variety of uses that the land was
capable of supporting prior to mining. Revegetation requirements for
the various land uses that any individual site may be capable of
supporting, such as forestry, pastureland and cropland, are frequently
in conflict.
Furthermore, section 508(a) of SMCRA and its legislative history
(S. Rep. No. 128, 95th Cong., 1st Sess. 77 (1977)), provide that the
demonstration that premining capability can and will be restored must
be made as part of the reclamation plan submitted with the permit
application. Thus, the land use restoration requirements of section
515(b)(2) are addressed primarily through the permit application review
process, and compliance is achieved by adherence to the reclamation
plan and other performance standards such as those pertaining to toxic
materials, topsoil, and backfilling and grading. No separate capability
demonstration is necessary upon the completion of mining and
reclamation.
The Director will interpret the land use and revegetation
provisions of SMCRA and the Federal regulations in a manner that will
reverse the positions taken in the Louisiana program amendment
decisions and will support approval of Ohio's proposed program
amendment. The establishment by States of separate and distinct
revegetation success standards for undeveloped land is consistent with
the Federal regulations which do not contain specific success standards
for undeveloped land, and is in keeping with section 101(f) of SMCRA,
which vests the States with the primary governmental responsibility for
developing, authorizing, issuing and enforcing regulations for surface
coal mining and reclamation operations.
To be approvable, all such standards must comply with 30 CFR
816.116(a), i.e., they must be consistent with the requirements of 30
CFR 816.111 and they must include a statistically valid evaluation of
appropriate vegetation parameters, including ground cover, production
or stocking. In addition, they must satisfy the permittee's obligation
to enhance fish, wildlife, and related environmental values when
practicable as required by section 515(b)(24) of SMCRA. Such
enhancement will always be practicable on undeveloped land since there
will be no conflict with the approved postmining land use. However,
undeveloped land use standards need not meet any of the requirements of
30 CFR 816.116(b) since this paragraph applies only to the postmining
land uses identified therein, none of which is undeveloped land.
In his review of proposed OAC 1501:13-9-15(M), the Director has
applied the tests described above. Under the Ohio proposal, land
reclaimed to an undeveloped postmining land use will be required to
satisfy the general revegetation requirements found at OAC 1501:13-9-15
(B) and (C). OAC 1501:13-9-15(B) requires the permittee to establish a
vegetative cover that is: (1) Diverse, effective, and permanent; (2)
comprised of species native to the area, or of introduced species where
desirable and necessary to achieve the approved postmining land use;
(3) at least equal in extent of cover to the natural vegetation of the
area; (4) capable of stabilizing the soil surface from erosion. These
general revegetation requirements correspond to the general
revegetation requirements at 30 CFR 816.111. The Director finds that in
this respect OAC 1501:13-9-15(M) is no less effective than the Federal
rules at 30 CFR 816.116(a).
Ohio's proposal meets the second criterion for approval by
establishing standards for ground cover and by requiring that success
in achieving these standards be accomplished using statistically valid
sampling procedures. The State has proposed in OAC 1501:13-9-15(M) to
require a ground cover at least equal to 70 percent where trees and
shrubs have been planted and at least equal to 90 percent where no
trees and shrubs have been planted. The evaluation of ground cover will
be accomplished using an approved statistical sampling procedure in
accordance with the ``Guidelines for Evaluating Revegetation Success.''
The Director finds that in this respect, OAC 1501:13-9-15(M) is no less
effective than 30 CFR 816.116(a) (1) and (2).
Furthermore, the Ohio program already includes rules which require
the enhancement of fish, wildlife and related environmental values on
undeveloped land as well as lands reclaimed to other postmining land
uses. OAC 1501:13-4-05(P)(2) requires that each permit application
include enhancement measures that will be used during reclamation and
the postmining phase of operations to develop aquatic and terrestrial
habitat. Permittees are required under OAC 1501:13-9-11(C)(5) to select
plant species to be used on reclaimed areas based on their nutritional
value for fish and wildlife, their use as cover for fish and wildlife
and their ability to support and enhance fish and wildlife habitat
after release of bonds. The distribution of plant groupings must
maximize benefit to fish and wildlife. As required by proposed OAC
1501:13-9-15(K)(3), DOR has consulted with and obtained approval from
the DOW for Policy/Procedure Directive, Regulatory 94-2, Planting Plans
for Undeveloped Land (Administrative Record Nos. OH-1989 and OH-2011).
This further assures that wildlife enhancement will be accomplished
where the postmining land use is undeveloped land. The Director finds
that the wildlife enhancement requirements embodied in proposed OAC
1501:13-9-15(M) and Policy/Procedure Directive 94-2 are consistent with
section 515(b)(24) of SMCRA and no less effective than the Federal
rules at 30 CFR 780.16 and 816.97.
Under proposed OAC 1501:13-9-15(M), permittees need only show that
they have planted the approved number and species of trees and shrubs
using proper planting techniques in order to obtain release of
performance bond. Survival of planted trees and shrubs is not required.
This differs from other postmining land uses such as fish and wildlife
habitat, commercial and noncommercial forest, and shelterbelts where
survival of woody plants is a requirement in both State and Federal
rules. There are no specific Federal revegetation standards under 30
CFR 816.116 for land reclaimed to an undeveloped land use. Since, by
definition, undeveloped land is ``land that has been allowed to return
naturally to an undeveloped state or has been allowed to return to
forest through natural succession,'' and the early stages of natural
succession are dominated by herbaceous and semi-woody plants, survival
of woody stock planted to artificially speed the successional process
is not integral to a determination of whether the land is capable of
achieving a normal vegetative climax through natural succession within
a reasonable period of time. Therefore, even though Ohio is proposing
to require planting of trees and shrubs on undeveloped land, OSM has
determined that it is not necessary for Ohio to establish woody plant
survival standards for undeveloped land. Rather, it is sufficient if
the revegetation success standards meet the requirements of 30 CFR
816.111 and 816.116(a) and if the species selected for revegetation
will not impede the establishment of woody plants native to the area
and characteristic of natural succession in that locality. As discussed
in Finding 3.A., the Director is approving Ohio's proposal that the
general revegetation requirements found in paragraphs (B) and (C) of
OAC 1501:13-9-15, which correspond to the requirements found in 30 CFR
816.111, be met in all revegetation efforts. Accordingly, the Director
finds that the requirement found in OAC 1501:13-9-15(M) that the
success of revegetation for phase III bond release be based, in part,
on the proper planting of trees and shrubs, does not render the Ohio
program to be less effective than 30 CFR 816.111 and 816.116(a). The
Director notes that the absence of a specific survival standard for
trees and shrubs does not relieve the State's responsibility to require
the presence of trees where necessary to determine that a diverse
vegetative cover be established on regraded areas and all other lands
affected, as required in 30 CFR 816.111 and section 515(b)(19). The
evaluation of diversity should consider species diversity or richness
(number of species and their relative importance) and structural
diversity (patchiness and vertical distribution of plants).
Representation of the major life forms, e.g. trees, shrubs, grasses and
forbs is an integral part of the evaluation of structural diversity
(Administrative Record No. OH-2009). The Director has determined that
where a major life form was present before mining, it must be
represented in the postmining vegetation in order to satisfy the
diversity requirement in SMCRA and the Federal rules. Specific survival
standards for trees and shrubs need not be included in the Ohio rules;
however, representative numbers of trees and shrubs must be present at
the time of final bond release. This this end, the Director is
requiring Ohio to submit documentation that it has consulted with and
obtained the approval of the DOW or other responsible agency for
methods to be used to evaluate diversity at the time of final bond
release and that such methods be included in the document ``Guidelines
for Evaluating Revegetation Success.''
17. OAC 1501:13-9-15(N), Success Standards for Recreation Areas
Proposed OAC 1501:13-9-15(N) establishes separate revegetation
success standards for areas with a postmining land use involving
developed recreation facilities, such as portions of parks, camps and
amusement areas where woody vegetation would be incompatible with the
postmining land use, as opposed to areas with a postmining land use
involving less intensive recreational activities, such as hiking or
canoeing. Revegetation success standards for developed recreational
facilities would be limited to ground cover, while standards for less
intensive recreational uses would include both ground cover and woody
plant stocking.
The corresponding Federal regulations at 30 CFR 816.116(b)(3),
which provide that revegetation success on lands with a recreational
postmining land use shall be evaluated in terms of ground cover and
woody plant stocking, do not distinguish between types of recreational
uses. However, OSM does not believe that the Federal regulations
require that trees and shrubs be planted on all portions of lands with
recreational postmining land uses. Interpreting the rule in that
fashion would be unduly restrictive and would conflict with achievement
of the postmining land use to the extent that the approved land use
involves athletic fields, golf courses, or other facilities
incompatible with woody plants. For functional, aesthetic, and
ecological reasons, it may also be desirable to exclude trees and
shrubs from other portions of recreational areas. Therefore, the
Director finds that the distinctions and separate revegetation success
standards proposed by Ohio for recreational lands are not inconsistent
with the Federal regulations at 30 CFR 816.116(b)(3), provided Ohio
does not implement its rules in a manner that would subvert the intent
of the Federal rules to require that recreational lands be planted with
trees and shrubs wherever such plantings are not incompatible with the
postmining land use.
For areas where the approved postmining land use is developed
recreation facilities, OAC 1501:13-9-15(N)(1) requires compliance with
the ground cover standards specified in OAC 1501:13-9-15 (G)(2) and
(G)(3)(b) for phase II and III bond release, respectfully, except that
only one ground cover evaluation in the last year of the responsibility
period is necessary for phase III bond release. For phase II bond
release, paragraph (G)(2) requires that revegetation be established in
accordance with the approved reclamation plan with sufficient ground
cover to control erosion. The Director finds that this requirement is
consistent with 30 CFR 800.40(c)(2), which authorizes phase II bond
release when, among other things, revegetation has been established in
accordance with the approved reclamation plan. For phase III bond
release, paragraph (G)(3)(b) requires that ground cover equal or exceed
90 percent. In addition, no single area with less than 30 percent cover
may exceed the lesser of 3,000 square feet or 0.3 percent of the land
affected. The Director finds that these standards are consistent with
the Federal requirements for revegetation success standards at 30 CFR
816.116(b)(3), which provide that ground cover on recreational areas
may not be less than that required to control erosion and achieve the
postmining land use.
For those areas with less intensive recreational postmining land
uses, OAC 1501:13-9-15(N)(2) requires compliance with the general
requirements for woody vegetation in paragraph (K). In addition, for
phase II bond release, the site must meet the revegetation success
standards of paragraph (L)(1), which requires the planting of 600 trees
or shrubs per acre on each acre on which trees and shrubs are to be
planted and a herbaceous ground cover of at least 30 percent or such
greater cover as is needed to control erosion. The Director finds that
this requirement is consistent with 30 CFR 800.40(c)(2), which
authorizes phase II bond release when, among other things, revegetation
has been established in accordance with the approved reclamation plan.
For phase III bond release, the site must meet the revegatation success
standards of paragraph (L)(2) in the last year of the revegetation
responsibility period. Under paragraph (L)(2), the herbaceous ground
cover must equal at least 70 percent and there must be at least 250-450
countable trees per acre which have met time-in-place requirements.
The Federal rules at 30 CFR 816.116(b)(3) requires the success of
vegetation for areas developed for recreation to be based on tree and
shrub stocking and vegetative ground cover. The vegetative ground cover
shall not be less than that required to achieve the postmining land
use. The Director finds that the standards proposed by Ohio in
paragraph (N)(2) meet these requirements. In the event 70 percent
ground cover is inadequate to control erosion, OAC 1501:13-9-15(F)(1),
by reference to OAC 1501:13-9-15 (B) and (C), requires a greater degree
of cover (whatever is needed to control erosion). The Federal rule also
requires that minimum stocking and planting arrangements for woody
plants be specified by the regulatory authority after consultation with
and approval by the State agencies responsible for the administration
of forestry and wildlife programs. OAC 1501:13-9-15(K)(3), which is
incorporated by reference into proposed paragraph (N)(2), contains an
identical requirement, but the State did not submit proof of
concurrence with the specific stocking standards in this rule.
Therefore, the Director finds that, while proposed OAC 1501:13-9-
15(N)(2) can be approved, Ohio will need to obtain permit-specific
approval of stocking standards for recreational land uses from the
pertinent State agencies until such time as the State submits
documentation that the appropriate State agencies have concurred with
the programmatic standards in this rule.
Finally, the Federal rules at 30 CFR 816.116(c)(2) provide for
phase III bond release on areas with a recreational postmining land use
if the applicable success standards are met or exceeded during the
growing season of the last year of the revegetation responsibility
period. As noted above, paragraphs (N) (1) and (2) of the State rules
both contain this requirement. Therefore, the Director finds that they
are no less effective than 30 CFR 816.116(c)(2).
18. OAC 1501:13-9-17(B)(2), Removed
Ohio proposes to remove OAC 1501:13-9-17(B)(2), which provides that
the postmining use for land that has not been previously mined and that
had not been properly managed prior to mining shall be judged on the
basis of surrounding lands which have received proper management. The
State indicated in its May 1, 1992, letter to OSM that the provision
has been interpreted as prohibiting the approval of undeveloped land as
a designated postmining land use (Administrative Record No. OH-1690).
Therefore, the State is proposing to remove the rule.
Because an identically worded Federal counterpart to this rule
(former 30 CFR 816.133(b)(2)) was removed without explanation on
September 1, 1983 (48 FR 39904), the Director finds that the removal of
OAC 1501:13-9-18(B)(2) does not render the Ohio program less effective
than 30 CFR 816.133. However, the Director notes that, even with the
removal of OAC 1501:13-9-17(B)(2), the remainder of paragraph (B) still
requires consideration of whether the land has been properly managed,
as does its Federal counterpart at 30 CFR 816.133(b). Therefore, the
Director's approval of the proposed deletion shall not be construed as
an endorsement of the establishment of artificially low restoration
standards resulting from improper management during the period
immediately preceding mining.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment on several occasions.
The National Coal Association (NCA), the Citizens Coal Council (CCC),
and the Division of Wildlife, Ohio Department of Natural Resources
(DOW) submitted substantive comments which are summarized and discussed
below.
The NCA supported Ohio's proposal to provide for undeveloped land
as a postmining land use because it would promote the reclamation of
mined lands to a mix of trees and herbaceous species with increased
ecological diversity and accelerate natural succession (Administrative
Record No. OH-1969). NCA further explained that undeveloped land as a
postmining land use falls within the directive of section 515(b)(2) of
SMCRA, which requires surface coal mine operators to ``* * * restore
the land affected to a condition capable of supporting the uses that it
was capable of supporting prior to any mining * * *,'' and that the
Federal definition of ``land use'' at 30 CFR 701.5 recognizes
``undeveloped land or no current use or land management'' as a
legitimate land use category for land that is undeveloped or, if
previously developed, land that has been allowed to return naturally to
an undeveloped state. NCA concluded that the undeveloped postmining
land use category in the amendment is consistent with and no less
effective than SMCRA and the Federal rules. As discussed in Finding 16,
the Director agrees with NCA's conclusion and is approving Ohio's
proposed rule.
NCA also commented that, in developing the proposed success
standards for undeveloped land, Ohio recognizes that existing tree and
shrub survival requirements, which require restarting the extended
responsibility period if the survival standards are not met, have
discouraged operators from planting trees or incorporating forestry as
a postmining land use. In NCA's opinion, the Ohio amendment properly
balances the need to address existing regulatory disincentives to tree
planting with the most critical factor to assuring success of tree
plantings--the selection and planting operation. In support of these
comments, NCA submitted literature citing a decline in tree planting
due to SMCRA's grading, compaction and ground cover requirements and
emphasizing species selection, handling, and planting techniques as the
most critical factors in tree survival. The Director acknowledges that
the issues raised by the NCA may be relevant to the NCA's support of
Ohio's proposed undeveloped land use revegetation requirements, but
notes that the basis for approval of the amendment, as more fully
discussed in Finding 16, is that it is no less effective than the
Federal regulations at 30 CFR 816.111, 816.116 and 816.133.
NCA specifically supported Ohio's lower standard for ground cover
for those areas planted with trees and shrubs by noting that competing
vegetation inhibits tree seedling survival, fosters an environment for
rodent damage, and discourage the invasion of native plant species. The
Director notes that Ohio has proposed a ground cover standard of 70
percent where trees and shrubs are to be planted and a ground cover
standard of 90 percent where no tree and shrub planting is planned. He
agrees with the NCA that these standards should be adequate to
stabilize the mined area and control erosion; however, as noted in
finding 15, if 70 percent cover is insufficient to stabilize the mined
area, a greater degree of cover must be established before bond can be
fully released.
The CCC commented that tree planting was a good idea and supported
the concept of returning land to a state that closely resembles its
premining use (Administrative Record No. OH-1895). The CCC also stated
that past practices by State regulatory authorities and OSM in applying
SMCRA have caused too many acres of forestland to be replaced with
pastureland monocultures populated by introduced rather than native
grass species. The CCC further expressed the belief that the current
provisions of the Ohio program (OAC 1501:13-9-15(L), Success Standards
for Wood Vegetation) allow the regulatory authority to require the
planting of trees, shrubs and other desired species for any postmining
land use and that the proposed rules on undeveloped land, without any
productivity standards, are unnecessary. The CCC also stated that the
real problem in Ohio was a ``culture'' of enforcement that fosters
improper reclamation, not the regulations. The CCC argued that the
approval of the proposed undeveloped land success standards in Ohio
would further erode the enforcement provisions of SMCRA.
The Director agrees that, in general, slowing the conversion of
forestland to pastureland is a desirable goal. He believes that the
approval of undeveloped land revegetation success standards will
further attainment of this goal. The Director finds no evidence to
support the CCC's charges that inadequate enforcement has fostered
improper reclamation or that approval of the amendment will erode the
enforcement provisions of SMCRA. The Director further finds that the
question of whether the undeveloped land use category and success
standards are necessary is irrelevant. Under 30 CFR 732.15 and
732.17(h)(10), the standard for review and approval of State program
amendments is consistency with SMCRA and the Federal rules, not whether
the amendment is necessary.
The DOW supported the proposed amendment because it will help solve
a longstanding problem of lack of diversity on reclaimed lands
(Administrative Record No. OH-1896). The DOW explained that vegetative
diversity is a requirement for high quality wildlife habitat and that
the availability of a postmining undeveloped land use category will
significantly increase wildlife habitat development in an area of the
State existing rich in such habitat. The DOW did not view the
traditional practice in Ohio of establishing large tracts of grassland
monocultures as a ``higher or better'' use of mined land. The Director
agrees with the DOW that vegetative diversity is needed to achieve high
quality wildlife habitat and that approval of the undeveloped
postmining land use category and revegetation success standards should
further this goal. Furthermore, he is requiring the DOR to consult with
and obtain DOW's approval of the methods to be used to evaluate species
and structural diversity at the time of final bond release (see
findings 3A and 16).
Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from the Regional Administrator of
the U.S. Environmental Protection Agency (EPA); the U.S. Department of
Agriculture, Soil Conservation Service (SCS); and the heads of other
Federal agencies with an actual or potential interest in the Ohio
program. Only the EPA and the SCS provided substantive comments.
The EPA recommended that a surface soil and water survey be
performed to ensure that the revegetation for the postmining land uses
is successful. In response, the Director notes that OAC 1501:13-2-
10(K)(2) requires the operator to monitor flow and quality of surface
runoff from the permit area prior to treatment. This data is used by
the operator to demonstrate that the quality and quantity of runoff
without treatment will minimize disturbance to the prevailing
hydrologic balance, meet effluent standards, and attain the prevailing
postmining land use. SMCRA and its implementing regulations do not
require a surface soil survey as suggested by the EPA, and the Director
does not have independent authority to require one.
The EPA also commented that Ohio's proposed guidelines for the
evaluation of revegetation success do not provide for adequate
assessment of plant species diversity, plant community composition and
stability, or percent survival of critical species required to
establish desired plant communities (Administrative Record No. OH-
1973). The agency stated that this assessment should be required for
undeveloped lands, especially in situations where the land use goal is
to provide wildlife habitat. The EPA believed the Rennie-Farmer method,
which Ohio proposes to use for assessing revegetation, is adequate for
percent cover only. It suggests that the Rennie-Farmer method be
modified to provide quantitative data on species diversity and plant
community composition by incorporating assessment of plant species
(number of plants per species and total species present) at each sample
point along the transect. The EPA provided an example of how it
believed the restored revegetation should be evaluated and monitored.
In the example, monitoring reports would be required according to a
schedule in the permit. These reports would identify the criteria for
evaluation and the performance standards to be met. For each habitat
type, they would include the success achieved for critical evaluation
parameters, and plans for remedial measures if the standard is not
being met. The EPA recommended that the reports, at a minimum, address
critical species, undesirable species, percent cover, species richness,
species quality, and planting success. The EPA described each of these
parameters and suggested that evaluations be done at the end of three
and five years after initial planting.
The Director agrees that many of EPA's suggestions have technical
merit. However, nothing in SMCRA or the Federal rules requires
quantitative evaluation of species diversity. Therefore, the Director
does not believe it would be appropriate to require Ohio to adopt a
numerical standard for diversity. As previously stated in finding 16,
he is requiring the DOR, in consultation with the DOW, to submit
methods for evaluating diversity, which may or not include quantitative
measures. Such an evaluation or diversity is expected to take into
account species richness (number of species and their relative
importance) and structural diversity (patchiness and vertical
distribution of plants).
The SCS suggested that traditional land use designations such as
wildlife habitat or woodland are better than the proposed ``undeveloped
land'' postmining land use (Administrative Record No. OH-1701). Upon
further inquiry by OSM, it expressed the belief that it was advisable
to assign a ``beneficial'' use to reclaimed areas rather than to
establish idle land as a reclamation goal. In response, the Director
notes that as indicated in finding 16, undeveloped land has ecological
benefits. Nothing in SMCRA or the State or Federal regulations
authorizes substandard reclamation of these sites. To the contrary,
they must be reclaimed to conditions that are capable of supporting all
the uses that they are capable of supporting prior to mining.
SCS also commented on Policy/Procedure Directive, Regulatory 94-2
(page 3). It believed that the recommended four to six pounds per acre
seeding rate for Ladino Clover was extremely high and may result in too
much competition with other species (Administrative Record No. OH-
1835). A rate of one-half to one pound per acre of Ladino Clover was
suggested as more appropriate. OSM has reviewed the technical
literature on this topic and found that most sources recommend a
seeding rate of three pounds per acre when Ladino Clover is used for
mined land reclamation. The four to six pounds proposed by Ohio has
been approved by DOW and is within reasonable limits.
The State Historic Preservation Officer (SHPO) commented that
information obtained during archaeological/architectural/historical
surveys of proposed permit areas may be useful in determining premining
land use for undeveloped land (OAC 1501:13-9-17(B)) (Administrative
Record No. OH-1713). The Director has forwarded this comment to the
State for consideration, but he finds that it has no bearing on whether
the amendment can or cannot be approved under 30 CFR 732.17.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Ohio on May 1, 1992, and June 11, 1993, and
revised on January 12, 1993, and October 21, 1993. As noted in findings
3A, 13, 16, and 17, Ohio is required to revise its program to require
the evaluation of diversity and other revegetation success standards
during final bond release inspection and to provide documentation that
it has obtained concurrence from the appropriate State agencies for the
revegetation success standards which apply to areas with commercial
forest and recreation as the proposed postmining land use. As noted in
finding 3B, Ohio is required to revise its proposed formula for
determining the size of sample needed to evaluate the revegetation
success of trees and shrubs. The existing requirement to include in the
Ohio program statistically valid sampling techniques for evaluating
revegetation success is being removed because Ohio has fulfilled this
requirement by including the document ``Guidelines for Evaluating
Revegetation Success'' in the State program.
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.
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 exempt from review by the Office of Management
and Budget under Executive Order 12866.
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 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 the Office of Management and Budget 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
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Hence, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 21, 1994.
Alfred E. Whitehouse,
Acting Assistant Director, Eastern Support 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 (qqq) to read
as follows:
Section 935.15 Approval of Regulatory Program Amendments
* * * * *
(qqq) The following amendment (program amendment 25R and 56R)
pertaining to the Ohio regulatory program, as submitted to OSM on May
1, 1992, and June 11, 1993, and revised on January 12, 1993, and
October 21, 1993, is approved, effective May 2, 1994.
(1) Revisions to OAC 1501:13-4-06(E)(2)(g), Land Use Change; OAC
1501:13-9-15, Revegetation; and OAC 1501:13-9-17(B), Postmining Use of
Land;
(2) Ohio Department of Natural Resources Guidelines for Evaluating
Revegetation Success; and
(3) Division of Reclamation Policy/Procedure Directive, Regulatory
94-2, Planting Plans for Undeveloped Land.
3. Section 935.16 is revised to read as follows:
Section 935.16 Required Regulatory Program Amendments
(a) By July 1, 1994, Ohio shall submit either a proposed amendment
or a description of an amendment to be proposed, together with a
timetable for adoption, to revise the document ``Guidelines for
Evaluating Revegetation Success'' to require that diversity, erosion
control, and other applicable requirements of OAC 1501:13-9-15 (B) and
(C) be evaluated based on identified methodologies at the time of final
bond release and that the formula used to determine the size of sample
needed to evaluate the success of tree and shrub plantings be revised
in accordance with the Director's January 14, 1994, letter to Ohio.
Consistent with OAC 1501:13-9-15(K)(3), Ohio also needs to submit
documentation that it has consulted with and obtained the approval of
the Ohio Division of Wildlife or other responsible agency for the
methods to be used to evaluate diversity at the time of final bond
release.
(b) [Reserved]
[FR Doc. 94-10237 Filed 4-29-94; 8:45 am]
BILLING CODE 4310-05-M
