[Federal Register Volume 59, Number 143 (Wednesday, July 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18201]
[[Page Unknown]]
[Federal Register: July 27, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving proposed Program Amendment Number 67 to the
Ohio permanent 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 postmining land uses. Specifically, the amendment proposes
to clearly identify postmining land use categories, to clarify the
comparison of premining and postmining land uses, to clarify that
``undeveloped land'' may be the designated postmining land use only if
the premining land use is undeveloped land, to clarify that
``forestland'' and ``fish and wildlife habitat'' are distinct
postmining land uses, and to eliminate redundant provisions more
stringent than the Federal regulations for notice and approval of
alternative postmining land uses by other reviewing agencies and for
the design of postmining land use plans by an engineer.
EFFECTIVE DATE: July 27, 1994.
FOR FURTHER INFORMATION CONTACT:
Richard J. Seibel, 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. Submission of the Proposed Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the Ohio Program
On August 16, 1982, the Secretary of the Interior conditionally
approved the Ohio program. Background information on the Ohio program,
including the Secretary's findings, the disposition of comments, and
the conditions of approval can be found in the August 10, 1982, Federal
Register (47 FR 34688). Subsequent actions concerning the conditions of
approval and program amendments are identified at 30 CFR 935.11,
935.12, 935.15, and 935.16.
II. Submission of the Proposed Amendment
By letter dated May 17, 1994 (Administrative Record No. OH-2017),
the Ohio Department of Natural Resources, Division of Reclamation
(Ohio), submitted proposed Program Amendment Number 67. In this
amendment, Ohio proposed to revise one rule at Ohio Administrative Code
(OAC) 1501:13-9-17 to make the Ohio program as effective as
corresponding Federal regulations concerning postmining land uses. OSM
announced receipt of proposed Program Amendment Number 67 in the May
26, 1994, Federal Register (59 FR 27255), 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.
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. Revisions not specifically
addressed below concern nonsubstantive wording changes, or revised
cross-references and paragraph notations to reflect organizational
changes resulting from this amendment.
1. OAC 1501:13-9-17(C) (1) through (11), Postmining land use
categories. Ohio is revising paragraphs (C) (1) through (11) to clarify
the titles of the eleven approved postmining land use categories. Since
these are nonsubstantive changes, the Director finds that the revised
State rules are no less effective than their Federal counterparts at 30
CFR 701.5.
2. OAC 1501:13-9-17(B)(1), Mining prior to April 10, 1972. Ohio is
revising paragraph (B)(1) to clarify that the postmining land use for
land that was mined pursuant to a license issued prior to April 10,
1972, shall be judged on the basis of the highest and best use that can
be achieved which is compatible with surrounding areas and does not
require the disturbance of areas previously unaffected by mining. The
State's proposed language is consistent with the counterpart Federal
regulations at 30 CFR 816/817/133(b). The Director, therefore, finds
that the revised State rule is no less effective than its Federal
counterpart.
3. OAC 1501:13-9-17(B)(2), Comparison of postmining and premining
land uses. Ohio is deleting the existing requirement in paragraph
(B)(2) that, if the premining land use was changed within five years of
the beginning of mining, the postmining land use shall be compared to
the historic use of the land as well as its use immediately before
mining. There are no Federal counterparts at 30 CFR 816/817.133.
However, the State rule at 1501:13-4-04(I)(1)(a) requires information
on historical land use in permit applications if the land use changed
within five years before mining. This corresponds to the Federal
regulations at 30 CFR 780.23(a)(1) and 784.15(a)(1). Since the State
rule at OAC 1501:13-9-17(B) states that ``[t]he premining uses of land
to which the postmining land uses are compared shall be those which the
land previously supported * * *'' this would include historical land
uses if the land use changed within five years before mining.
Therefore, the Director finds that the deletion of former paragraph
(B)(2) will not render the Ohio program less effective than the Federal
regulations.
4. OAC 1501:13-9-17(B)(2), Undeveloped land use. Ohio is adding a
new requirement in paragraph (B)(2) that land may be returned to the
undeveloped postmining land use category only if the land was
categorized as undeveloped prior to mining. Ohio's proposed rule
clarifies that undeveloped land may be the designated postmining land
use only if the premining land use is undeveloped land. The Director
finds that the proposed rule is not inconsistent with and is no less
effective than the Federal regulations at 30 CFR 816/817.133(b) and 30
CFR 701.5.
5. OAC 1501:13-9-17(C), Undeveloped land use. Ohio is revising
paragraph (C) to require that all proposed changes of land use,
including changes from undeveloped land to forestland or fish and
wildlife habitat, shall be considered an alternative land use change
subject to approval by the Chief of the Ohio Department of Natural
Resources, Division of Reclamation (the Chief). The Director finds that
Ohio's proposed rule is not inconsistent with and is not less effective
than the Federal regulations at 30 CFR 816/817.133 and the Federal
definition of ``land use'' at 30 CFR 701.5.
6. OAC 1501:13-9-17(D)(8), Undeveloped land use. Ohio is deleting
the existing requirement in paragraph (D)(8) that plans to change the
postmining land use to undeveloped land from some other land use
category must treat the land as if the postmining land use were in the
forestland/fish and wildlife habitat category. The proposed deletion of
this paragraph is consistent with revised paragraphs (B)(2) and (C)
which clarify that undeveloped land may be the designated postmining
land use only if the premining land use is undeveloped land. Therefore,
the Director finds that the proposed deletion of paragraph (D)(8) will
not render the Ohio rule less effective than the Federal regulations.
7. OAC 1501:13-9-17(C) (9) and (10), Forestland and Fish and
Wildlife Habitat. Ohio is revising paragraphs (C)(9) and (C)(10) to
clarify that ``forestland'' and ``fish and wildlife habitat'' are
distinct postmining land uses. The ``forest'' category includes land
used for commercial or noncommercial production of wood or wood
products. The Director finds that the revised rules are no less
effective than the Federal regulations at 30 CFR 816/817.133 and the
corresponding Federal definitions at 30 CFR 701.5.
8. OAC 1501:13-9-17(D)(1), Agency review of postmining land uses.
Ohio is deleting the existing requirement in paragraph (D)(1) that
requests for alternative postmining land use must contain a written
statement of views from the authorities having statutory
responsibilities for land use policies and plans. Ohio is also deleting
the requirement in paragraph (D)(1) that the operator must obtain any
required approval of the final land use from local, State, or Federal
land management agencies, including any necessary zoning or other
required changes. The counterpart Federal regulations at 30 CFR 816/
817.133(c) impose no similar requirements. Therefore, the Director
finds that the deletion of these requirements will not render the Ohio
program less effective than the Federal regulations.
9. OAC 1501:13-9-17(D)(6), Agency review of postmining land uses.
Ohio is revising paragraph (D)(6) to clarify that, for approval by the
Chief, proposed alternative postmining land uses must identify measures
to prevent or mitigate adverse effects on fish and wild not render the
Ohio program less effective than the Federal regulations.
9. OAC 1501:13-9-17(D)(6), Agency review of postmining land uses.
Ohio is revising paragraph (D)(6) to clarify that, for approval by the
Chief, proposed alternative postmining land uses must identify measures
to prevent or mitigate adverse effects on fish and wildlife and on
threatened or endangered plants or animals or their critical habitats
and must demonstrate that an opportunity to comment has been provided
in accordance with OAC section 1501:13-9-11 to appropriate State and
Federal fish and wildlife management agencies. There are no Federal
counterparts at 30-CFR 816/817.133. Therefore, the Director finds that
the revisions do not render the Ohio program less effective than the
Federal regulations.
10. OAC 1501:13-9-17(D)(9), Agency review of postmining land use.
Ohio is deleting the existing requirement in paragraph (D)(9) that
alternative postmining land use plans must demonstrate that the
operator has provided written notice of the proposed land use to
appropriate State and Federal agencies with instructions for those
agencies to provide any comments on the proposed land use to the Chief.
The Federal requirements at 30 CFR 816/817.133 do not impose a similar
requirement. Therefore, the Director finds that the deletion of this
requirement will not render the Ohio program less effective than the
Federal regulations.
11. OAC 1501:13-9-17(D)(2), Design of postmining land use plans by
an engineer. Ohio is deleting the existing requirement at paragraph
(D)(2) that postmining land use plans must be designed under the
general supervision of a registered engineer or other appropriate
professional. There are no similar Federal requirements at 30 CFR 816/
817.133. The Director, therefore, finds that the deletion of paragraph
(D)(2) will not render the Ohio program less effective that the Federal
regulations.
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. No public comments were
received, and because no one requested an opportunity to testify at a
public hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Ohio program.
The U.S. Department of Agriculture, Soil Conservation Service,
stated that it does not recommend that any forestland be grazed as
indicated in paragraph (C)(3) of OAC 1501:13-9-17. The only change
proposed by Ohio at paragraph (C)(3) was to clarify the title of the
approved postmining land use. Therefore, the Director will not address
this comment.
No other comments were received.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the EPA with respect to any provisions of a
State program amendment that relate to air or water quality standards
promulgated under the authority of the Clean Air Act (42 U.S.C. 7401 et
seq.) or the Clean Water Act (33 U.S.C. 1251 et seq.). None of the
revisions that Ohio proposed to make in this amendment pertain to air
or water quality standards. Therefore, OSM did not request EPA's
concurrence.
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. OH-1993). The
EPA responded on June 20, 1994 (Administrative Record No. OH-2030),
that it reviewed the proposed amendment but had no comments.
V. Director's Decision
Based on the above findings, the Director approves the proposed
program amendment as submitted by Ohio on May 17, 1994.
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.
VI. Procedural Determinations
Executive Order No. 12866
This final rule is exempted from review by the Office of Management
and Budget under Executive Order 12866 (Management Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the 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
which require approval by the Office of Management and Budget under 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. 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 corresponding Federal regulations.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 20, 1994.
Patricia P. Acker,
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 paragraph (rrr) to read as
follows:
Sec. 935.15 Approval of regulatory program amendment.
* * * * *
(rrr) The following rules, as submitted to OSM on May 17, 1994, are
approved effective July 27, 1994: Program Amendment Number 67 which
consists of revisions to the Ohio Administrative Code (OAC) at 1501:13-
9-17 concerning postmining use of land.
[FR Doc. 94-18201 Filed 7-26-94; 8:45 am]
BILLING CODE 4310-05-M
