[Federal Register Volume 59, Number 169 (Thursday, September 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21583]
[[Page Unknown]]
[Federal Register: September 1, 1994]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 935
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; partial approval and deferral of amendment.
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SUMMARY: OSM is approving in part and deferring in part proposed
Program Amendment Number 63 to the Ohio permanent regulatory and
Abandoned Mined Land reclamation programs (hereinafter referred to as
the Ohio programs) under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). The amendment was initiated by Ohio and is intended to
reduce and reorganize the staffing of the Ohio programs in response to
recent drops in Ohio coal production. The amendment would abolish 28
Ohio staff positions and would reorganize the remaining staff positions
to assume the existing job duties. Program Amendment Number 63 does not
propose any revisions to Ohio's coal mining law or rules.
EFFECTIVE DATE: September 1, 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 March 15, 1993 (Administration Record No. OH-1845),
the Ohio Department of Natural Resources, Division of Reclamation
(Ohio), submitted proposed Program Amendment Number 63 (PA 63). In that
submission, Ohio proposed to reduce the staff of the Ohio programs by
abolishing 28 existing positions. Ohio also proposed to reorganize the
remaining staff positions to assume the existing job duties.
PA 63 included seven attachments intended to describe Ohio's
proposal for the staffing reduction and reorganization and to provide
the rationale for those actions. The amendment contained no proposed
revisions to Ohio's coal mining law in the Ohio Revised Code or coal
mining rules in the Ohio Administrative Code. The seven attachments are
summarized briefly below:
(1) December 29, 1992, Proposed reorganization of the Ohio
Department of Natural Resources, Division of Reclamation. This document
describes a 14-percent drop in Ohio coal production between 1987 and
1992 and describes the resultant 20-percent drop in the number of
active Ohio mining permits, 57-percent drop in the number of permit
applications processed, and 18-percent drop in the number of required
mine inspections. The document also describes corresponding reductions
in incoming revenues to the Ohio programs from mine permit fees, coal
severance taxes, and Abandoned Mine Land (AML) grants.
To offset these reductions in workload and funding, Ohio proposed a
four-part reorganization of its permanent regulatory and AML programs:
(a) Decentralization of the bond forfeiture program;
(b) Streamlining of engineering design work for Federally funded
AML reclamation projects;
(c) Abolishment of 22 positions, including two construction
project specialists, two project engineers, one environmental
engineer, one project engineer intern, two design specialists, one
geologist, two environmental specialists, four reclamation
inspectors, five environmental technicians, one natural resource
administrator, one computer operator; and
(d) Creation of a Computer Services Section.
(2) January 21, 1993, Addendum to the proposed reorganization. This
document describes and explains six additional positions to be
abolished as part of the reorganization of the Ohio programs:
One environmental specialist, two reclamation inspectors, two word
processing specialists, and one account clerk.
(3) Updated tables of organization pursuant to the reorganization.
(4) Tables of organization prior to the reoganization.
(5) Position descriptions of 28 positions to be abolished.
(6) Position description of 30 positions which will assume the
duties of the abolished positions; and
(7) Position descriptions of 51 positions retained pursuant to the
reorganization.
OSM announced receipt of the proposed amendment in the April 8,
1993, Federal Register (58 FR 18185), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on May 10, 1993.
OSM and Ohio staff met on May 20, 1993, to discuss OSM's
preliminary concerns and questions about PA 63. By letter dated June
16, 1993 (Administrative Record No. OH-1890), Ohio submitted additional
information in response to those OSM concerns and questions. Through an
oversight, OSM did not reopen the public comment period at that time.
Subsequently, by letter dated November 2, 1993 (Administrative
Record No. OH-1948), OSM formally provided Ohio with its questions and
comments on the March 15 and June 16, 1993, submissions of PA 63. OSM's
questions and comments were listed under the following six headings:
Streamlining of AML Designs; Engineering: Bond Forfeitures;
Engineering: Inspection and Enforcement Issues; Position Descriptions;
Bond Forfeiture Program; and SOAP.
By letter dated December 6, 1993 (Administrative Record No. OH-
1971), Ohio provided its responses to OSM's November 2, 1993, questions
and comments. In addition, Ohio included three attachments. The first
attachment was a November 5, 1993, letter to OSM explaining
organizational responsibilities within Ohio's engineering/geotechnical
support group and AML program. The second attachment was a log of
engineering inspection and enforcement activity. The third attachment
was an example of the revised position description for Ohio's
reclamation inspectors, dated April 5, 1993. In its December 6, 1993,
Administrative Record information, Ohio noted that additional position
descriptions for Ohio's engineering management staff were being revised
but did not attach copies.
OSM announced receipt of Ohio's additional Administrative Record
information in the January 21, 1994, Federal Register (59 FR 3325),
and, in the same document opened the public comment period and provided
an opportunity for a public hearing on the adequacy of the proposed
amendment. The public comment period closed on February 7, 1994.
During its review of Ohio's December 6, 1993, response and
attachments, OSM identified two concerns regarding engineering
practices and engineering workload which OSM staff communicated to the
State during a meeting held on April 20, 1994 (Administrative Record
No. OH-2012). Ohio responded in a letter dated April 21, 1994
(Administrative Record No. OH-2014) with additional information on both
issues. OSM announced receipt of this additional information, along
with the explanatory information submitted by Ohio on June 16, 1993,
and reopened the comment period for PA 63 in the June 9, 1994, Federal
Register (59 FR 29748). The public comment period closed on June 24,
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 Ohio
PA 63. Section 503(a)(3) of SMCRA requires that a State regulatory
authority must have sufficient administrative and technical personnel,
as well as funding, to implement its approved programs. The Director's
findings discussed below reflect his determinations as to whether,
under the proposed reduction and reorganization of Ohio's staff, Ohio
is able to continue to efficiently and effectively conduct its approved
programs.
Ohio's justification for the reduced staffing levels is based on
the decline, over the past five years, in the issuance of new permits,
the number of active permits, the number of inspections and enforcement
actions, and in overall Ohio coal production. The Director concurs that
this decline has occurred and that this mining industry downturn has
had direct impact on Ohio's coal regulatory and AML programs. The
Director also concurs that Ohio's goals of reducing and streamlining
its programs are therefore appropriate. With the exception of the
engineering portion of the amendment which the Director is deferring,
the Director finds, in accordance with section 503 (a)(3) of SMCRA and
30 CFR 732.17, that the proposed amendment meets the requirements of
SMCRA and the Federal regulations in that Ohio has demonstrated that it
has sufficient administrative and technical personnel and funding to
continue to implement the approved Ohio programs.
Eleven areas of the approved Ohio programs are affected by the
proposed staffing reduction and reorganization. The Director's findings
in each area are discussed below.
A. Administration Section
Ohio's Administration Section includes the Fiscal and
Administrative Service Section, Human Resources Section, Computer and
Information Services Section, Special Programs Section, and the Office
of the Chief of the Division of Reclamation, Ohio Department of Natural
Resources (the Chief). These sections provide guidance on program
policy and procedures, address personnel issues, provide training,
develop new programs and initiatives, propose legislation and rules, as
needed, and provide information to the industry and public on Ohio's
activities. The Special Programs Section handles remining initiatives
and emergency AML reclamation as well as program policy and research.
1. Office of the Chief
Ohio is proposing to abolish one natural resources administrator
who is responsible for statewide policy and coal issues in the Chief's
office. The duties of the abolished position will be absorbed by four
technical positions in the Special Programs Section and by the Chief's
secretary. Ohio indicates that these technical positions can more
efficiently review special issues and problems, as well as develop and
implement policies resulting from those reviews.
2. Fiscal and Administrative Services Section
The Fiscal and Administrative Services Section processes all grant
applications, invoices, equipment purchasing, and contracts and
administers budget preparation. Ohio maintains that, through improved
accounting software and the implementation of a central accounting
system and because of a decrease in fiscal workload from the downturn
in the coal mining industry, this section has had less need for all of
the accounting staff and clerical support for its daily operations.
Therefore, Ohio is proposing to abolish one account clerk position
and one word processing specialist position. The duties of the account
clerk will be assumed by four remaining account clerks in the Fiscal
and Bonding Sections. The duties of the word processing specialist will
be assumed by a secretary and two word processing specialists in the
AML, Bonding, and Administrative Sections.
3. Computer and Information Services Section
In an effort to consolidate its computer management, Ohio is
creating a Computer and Information Services Section. This
consolidation is part of an ongoing effort to standardize computer
purchasing, utilization, and maintenance. Ohio indicated in its
submission that these consolidated computer systems will allow the
State to manage its mining and reclamation information more efficiently
thereby responding to inquiries more quickly and accurately. To this
end, software packages ranging from word processing to computer-aided
design are assisting Ohio personnel in storing, manipulating, and
reporting this information. The Computer and Information Services
Section will consist of a section supervisor and management analyst
transferred from the Special Studies Section of the AML Section and a
new program specialist position. Ohio is proposing to abolish one
computer operator position in the Special Studies Section. This
position was solely responsible for entering data into and consulting
with the National Applicant Violator System (AVS). As the major user,
the Permitting Section will now be responsible for the AVS. The duties
of the abolished position will be performed by two word processing
specialists in the Permitting Section.
Administration section findings. The Director finds that the
updated information systems, including the networking of computers an
the decrease in workload, will allow Ohio to operate more efficiently
so that the proposed staff reduction and reorganization in the
Administration Section will not render the Ohio program unable to
regulate surface coal mining and reclamation operations or to conduct
AML reclamation in accordance with the requirements of SMCRA.
B. Permitting
The Permitting Section is responsible for the review of all permit
applications for surface and underground coal mining operations. This
section also reviews all proposals to modify or revise a permit, to
transfer ownership, or to extend or renew permits. In addition, this
section conducts public hearings on proposed mining operations and
evaluates petitions for areas to be declared unsuitable for mining.
The number of incidental boundary revisions (IBR), adjacent area
permits, and permit applications in Ohio has steadily decreased between
1987 and 1992. The majority of the permitting staff workload is in
these three areas. Between 1987 and 1992, there has been a 62-percent
decrease in the number of IBR's, a 37-percent decrease in the number of
adjacent area permits, and a 67-percent decrease in the number of
permit applications processed. The number of applications to revise a
permit (ARP's) has also decreased from a high of 894 in 1989 to 706 in
1992 (Administrative Record No. OH-2048).
As a result of this decline in the number of permitting actions,
Ohio stated that it has more staff than is needed to process the number
of permit-related applications received. Ohio is, therefore, proposing
to abolish one geologist and two environmental specialist positions and
to transfer one geologist to the Industrial Minerals Program. The
duties of the abolished geologist position will be absorbed by two
remaining geologists. The duties of one environmental specialist will
be taken over by four remaining environmental specialists. The duties
of the second environmental specialist will be absorbed by two
remaining environmental specialists and by Ohio's 24 reclamation
inspectors.
Permitting section findings. With the overall decline in permit-
related applications, the Director finds that Ohio's proposal to
eliminate three permitting positions is reasonable and is not expected
to reduce the quality or the timeliness of the permitting staff's
review of permits, which includes new permits, incidental boundary
revisions, permit revisions, and modifications. This decrease in
staffing will not diminish Ohio's ability to conduct hearings on
proposed permits or to evaluate petitions requesting that an area be
declared unsuitable for mining.
C. Inspection and Enforcement Section
The Inspection and Enforcement Section is responsible for the
inspection of all coal mining operations in Ohio and for enforcement of
the Ohio Coal Mining and Reclamation Law in Chapter 1513 of the Ohio
Revised Code. This section also collects, monitors, and releases all
reclamation performance bonds, conducts hearings and conferences, and
investigates complaints from the public.
Over the last five calendar years, the number of active mining
permits in Ohio has declined by 20 percent for 1,094 to 880. During
this period, the number of mine site inspections per year by Ohio staff
has declined by 18 percent from 10,266 to 8,500. Because of these
declines, Ohio is proposing to eliminate six of its 30 reclamation
inspector positions and all five environmental technician positions,
leaving 24 reclamation inspectors to perform the work with the
assistance of five clerk/secretary positions.
In its Evaluation Year 1993 report on the Ohio program
(Administrative Record No. OH-2045), OSM reported recent evaluation
year totals for the number of surface, underground, and mine facility
permits (``inspectable units'') in Ohio. In Evaluation Years 1991 and
1992 (before Ohio's staff reorganization), Ohio had a total of 906 and
900 inspectable units, respectively. These figures yield an average of
30 inspectable units per Ohio inspector for those evaluation years.
At the end of Evaluation Year 1993 (after Ohio's staff
reorganization), the number of inspectable units had fallen to 858.
Dividing this inspection workload across Ohio's 24 remaining
inspectors, Ohio's proposed staff reorganization would result in an
average of 36 inspectable units per inspector. In comparison to other
States, Ohio, at 36, would remain second behind West Virginia with 37
inspectable units per inspector (Administrative Record No. OH-2046).
The next highest States are Pennsylvania with 27 and Maryland with 26.
In addition, many Ohio permits are close to Phase III bond release
which will continue the decline in the number of inspectable units in
Ohio. Ohio and OSM do not anticipate an increase in the number of
permit-related applications in the foreseeable future.
As discussed in Section F, Ohio is also proposing to increase the
bond forfeiture reclamation responsibilities of its inspection staff.
This action will result in some added workload for the inspectors to
address reclamation of forfeited sites. However, these sites are
already part of the inspectable unit inventory and should not impose a
significant additional workload considering that all enforcement
actions should have been taken and the sites should be proceeding to
final reclamation in a short time. In addition, because of the
inspection staff's detailed knowledge and familiarity with these sites,
shifting the bond forfeiture responsibility to the Inspection and
Enforcement Section will not affect the efficiency and speed at which
these permits are reclaimed. The five-year liability period will not
apply to reclaimed forfeiture sites thereby lessening the length of
time the site will have to be inspected.
Inspection and enforcement section findings. The Director finds
that the duties of the environmental technician positions, which are
administrative in nature, will be easily assumed by the remaining
staff. The Director finds that the State has shown that an increase of
six inspectable units per inspector and the addition of reclamation
forfeiture responsibilities should not have a negative impact on the
Ohio program. In its Evaluation Year 1993 report, OSM found no
unresolved deficiencies in Ohio's inspection frequency (Administrative
Record No. OH-2045). The Director anticipates that Ohio will continue
to meet the required inspection frequency with the remaining staff of
24 reclamation inspectors and with support assistance from five clerk/
secretary positions.
D. Civil Penalty Assessment Section
Part of the responsibility of the Inspection and Enforcement
Section is to initiate enforcement actions for violations of the law
and to assess civil penalties (``assessment actions''). Assessment
actions are the result of the issuance of Notices of Violations (NOV's)
and Cessation Orders (CO's). The number of assessment actions is not
proportionate to the number of enforcement actions because there are
more assessment actions taken than there are enforcement actions since
one enforcement action may result in more than one assessment action.
For example, for two enforcement actions issued, as many as eleven
assessment actions could result. Typically, only one enforcement action
is taken for a nonremedial violation or a penalty amount of $500.00 or
less and two enforcement actions are taken if the violation requires
remedial action. Two environmental specialists called ``assessment
officers'' have been responsible for reviewing these violations,
determining whether a civil penalty will be assessed, and conducting
informal conference hearings.
Ohio is proposing to abolish one assessment officer position. Ohio
has documented that the number of assessments has declined. Through
normal oversight, OSM reviewed Ohio's monthly inspection and
enforcement reports for the years 1989 through 1992 (Administrative
Records No. OH-2048). Ohio issued a total of 1,369 NOV's and CO's in
1989 compared with only 596 in 1992, a decline of 56 percent. In 1989
there were 2,436 assessment actions compared to only 524 in 1992. The
number of assessment conferences decreased by 43 percent from 163 in
1989 to 92 in 1992. There were 20 show cause hearings each year in
1989, 1991, and 1992 and 21 hearings in 1990. Likewise the figures for
bond release hearings remained fairly constant from 1990 through 1992
(11 each in 1991 and 1992, 15 in 1990).
Civil penalty assessment section findings. The Director finds that
the decline in the number of Ohio enforcement actions and assessment
conferences is adequate justification for the elimination of one
position. The decreased workload of approximately 50 percent justifies
a 50-percent decrease in the number of positions performing these
functions. The Director finds that, with the reduction of the civil
penalty staff, Ohio will continue to be able to review all violations
for assessment and to assess penalties using the proper criteria and
procedures.
E. Technical Section
The Technical Section is responsible for investigating citizen
complaints concerning blasting activities and mining impacts upon water
supplies. The Technical Section also conducts the Ohio Blaster
Certification Program and processes citizen requests for preblast
surveys. Ohio states that the decline in the mining industry has
resulted in less blasting and, therefore, fewer complaints. Ohio cited
that the number of complaints in FY 1992 was 57, down from 86 in FY
1991. The number of blasting plans to be reviewed decreased from 119 in
FY 1991 to 81 in FY 1992, and the number of preblast surveys conducted
declined from 447 to 324.
Citing the reduction in the amount of work for the Technical
Section to handle, Ohio is proposing to abolish one of two word
processing specialists. The duties of this position will be assumed by
the remaining word processing specialist.
Summary technical section findings. The Director finds that Ohio's
documentation of a decline in blasting activities and its related
reviews and surveys is adequate to support its decision to abolish one
word processing specialist position in the Technical Section. The
Director finds that the remaining word processing specialist will be
capable of performing his/her duties in a timely fashion.
F. Abandoned Mined Land Reclamation Program
The Abandoned Mined Land (AML) reclamation program is responsible
for reclaiming mined lands which have been abandoned and for which
there is no responsible mine operator and for reclaiming permitted
areas which have been forfeited. AML projects are funded by both State
and Federal AML funds, and the forfeitures are reclaimed with forfeited
performance bond funds augmented by mineral severance tax money.
Forfeiture section reorganization. The Forfeiture Section reviews
the permit sites, develops reclamation plans, and designs and inspects
the reclamation of the permit. The Inspection and Enforcement Section
is responsible for processing the permit forfeiture and assuring that
the requirements of the Ohio Revised Code Chapter 1513 are met. It is
Ohio's intent to return the forfeiture reclamation duties to the
Inspection and Enforcement Section where the reclamation inspection
staff would be responsible for assuring that forfeited permits are
reclaimed. Since the inspectors are already geographically located in
the field, the management of the bond forfeiture projects will be more
efficient. Also, the AML Section will continue to provide contracting
and monitoring assistance to the Inspection and Enforcement Section.
Because of this reorganization, Ohio is proposing to abolish three
positions, i.e., two construction project specialists and one project
engineer. Ohio's 24 reclamation inspectors will take over the
responsibilities of the two construction project specialists.
Forfeiture section findings. Since the duties of the Forfeiture
Section are being delegated elsewhere, the Director finds that the
proposed reorganization and the proposed abolishment of the two
construction project specialists will not adversely impact Ohio's
forfeiture reclamation program. The Director's Finding on the
abolishment of the project engineer position is discussed below in
Section G.3.
G. Reorganization of Engineering Staff
1. Inspection and Enforcement: Regulatory Engineering
Ohio has stated that the decrease in the number of active mine
permits over the last five years has also meant a corresponding
decrease in engineering workload in the Inspection and Enforcement
Section. This engineering workload includes reviews of mine plans, pond
designs, and general engineering assistance to inspectors. As a result
of this workload decrease, Ohio proposed in the March 15, June 16, and
December 6, 1993, submissions of PA 63 to abolish one Project Engineer
position and one Environmental Engineer position.
In an April 21, 1994, letter to OSM (Administrative Record No. OH-
2014), Ohio has indicated that its reorganization of engineering
resources is still underway. The changes to its engineering staff
proposed by Ohio in the 1993 submissions of PA 63 no longer accurately
reflect Ohio's proposed engineering structure. Ohio is still analyzing
the workload and functions of the engineering staff (Administrative
Record No. OH-2038).
Therefore, Ohio has stated that it will resubmit the engineering
portion of the amendment to OSM on a future date.
Since Ohio is still reorganizing its engineering staff, the
Director is deferring his decision on this portion of PA 63 until after
Ohio has completed the reorganization and resubmitted the final staff
configuration to OSM (Administrative Record No. OH-2038).
2. Federal AML Project Engineering
The Federal AML Section is responsible for reclaiming mined lands
which were abandoned prior to August 3, 1977, and which are causing
danger to the public's health and safety. The section is responsible
for project selection, development, design, and construction
monitoring. Because of decreases in the amount of design work performed
by the section over the last five years, Ohio has proposed to abolish
two design specialist positions and one project engineering intern
position within the section.
As discussed above, Ohio has indicated that its reorganization of
engineering resources is still underway. Therefore, the Director is
deferring his decision on this portion of PA 63 until after Ohio has
completed the reorganization and resubmitted the final staff
configuration to OSM.
3. Bond Forfeiture Engineering
As discussed above in Section F, Ohio is proposing to abolish one
project engineer position in the forfeiture section of the AML
reclamation program. Because Ohio is still reorganizing its engineering
structure, the Director is deferring his decision on this portion of PA
63.
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. One commenter requested
a public hearing, but that request was later withdrawn and so no
hearing was held.
The Ohio Civil Service Employees Association (OCSEA) submitted
substantive comments which are discussed below.
1. OCSEA requested a regulatory impact analysis and regulatory
review of PA 63. OSM has a program-wide exemption for program
amendments from these two types of reviews. OSM's own amendment review
process adequately considers impacts of program amendments on
regulatory programs. Under Executive Order No. 12866, PA 63 is not
subject to review by the Office of Management and Budget because it is
not a significant regulatory action. With regard to the regulatory
impact analysis, OSM has determined that PA 63 will not have a
significant economic impact on a substantial number of small entities.
2. OCSEA noted that some of the position descriptions in the
amendment are out of date. The Director acknowledges this fact.
However, Ohio's inclusion of these position descriptions was intended
to give OSM general information about Ohio staff capability. The
Director believes that OSM can review this overall capability without
requiring Ohio to update all position descriptions as of the date of
the amendment submission.
3. OCSEA commented that staffing reductions must be based on
workload and not on income to the Ohio programs or on statewide coal
production alone. The Director agrees with this comment. Consequently,
the Director has not based his review of the staffing reductions and
reorganizations on projected income or funding to the Ohio program nor
simply on coal production figures. The Director's review has considered
Ohio's ability to meet the requirements of its approved program. The
abolishment of existing positions must be explained and justified by an
absence of work for those positions. That absence of work can be
created either by a decrease in Ohio's overall workload or an increase
in the efficiency of the Ohio program in accomplishing that work. The
Director does not agree with the comment that Ohio has failed to prove
its ability to perform its inspection duties pursuant to Ohio
Administrative Code section 1501:13-14-01. As discussed above in
Section C, the Director has found that Ohio's proposed average of 36
inspectable units per inspector is within the range of averages from
other States with approved programs. In addition, OSM has found no
significant unresolved deficiencies in Ohio's past inspection
performance. The proposed enforcement staff reductions are commensurate
with the measured reduction in workload. The Director, therefore, finds
that the Ohio program meets the inspection and enforcement requirements
of its program.
4. OCSEA noted that Ohio has implemented the amendment prior to OSM
approval. The Director agrees with the commenter that Ohio should have
submitted the proposed amendment to OSM with sufficient time for OSM to
act on the amendment prior to its implementation. OSM will discuss this
aspect of PA 63 in its annual oversight evaluation report on the Ohio
program. OSM will also work with Ohio to prevent the recurrence of
delayed amendment submission. However, Ohio's delayed submission of the
amendment does not negate the amendment. OSM must still review and
issue a decision on the amendment.
5. OCSEA provided several comments on engineering workload and
reassignment of engineering resources. As discussed above, the Director
is deferring his decision on the engineering portion of PA 63 until
Ohio has concluded its reorganization. The Director will respond to the
commenter's remarks on engineering issues in the final rule on the
deferred engineering portion of PA 63.
6. OCSEA commented that Ohio has not addressed impacts of PA 63 on
the OSM-Ohio Cooperative Agreement. The Director disagrees. The
information in PA 63, including the information on inspectable units,
covers Federal lands which are in Ohio's jurisdiction for surface
mining activities. Therefore, the impact on Federal lands has been
addressed by Ohio. The Director has determined that, excluding the
deferred issues, the proposed changes to Ohio's staffing do not make
the Ohio program incapable of meeting the requirements of its approved
program. No revisions to the OSM-Ohio Cooperative Agreement are
therefore necessary.
7. OCSEA identified a variety of unresolved program issues raised
in past OSM oversight reports on the Ohio program. These unresolved
issues concerned required enforcement actions, alternative enforcement,
alternative bonding systems, AVS checks and permit blocking,
exploration operations and notices of intent to explore, and extensions
and abatement actions. The Director concurs that recent annual
oversight reports have indicated some unresolved issues with the Ohio
program. However, the Director finds that the causes of these
unresolved issues are not related to staff shortage. The Director,
therefore, finds that approval of PA 63 will not exacerbate unresolved
issues which OSM is now addressing through normal program oversight.
The Director does not agree with the commenter that recall of the
abolished positions is essential to accomplish adequate program
enforcement of Ohio's mining law since the Director has concluded that
even with the staff reductions, Ohio will be able to implement,
administer, and enforce its approved program.
8. OCSEA noted several program areas which it believes are
interrelated with or will be impacted by PA 63. These areas include:
--AML's Waste Tire Disposal. Ohio has not submitted this initiative
to OSM as an amendment. Therefore, it is premature to discuss this
initiative at this time.
--Inspection frequency. Inspection frequency is discussed in
Director's Finding C.
--Added inspection responsibilities from the decentralization of
bond forfeitures. These added inspection responsibilities are
discussed in Director's Finding F.
--Ohio's ability to complete all bond forfeitures in a timely
manner. This issue is not related to staff shortage. Ohio's ability
to implement, administer, and enforce its program is discussed by
the Director in comment No. 7 above.
--Adequate public service and costs of moving and relocation. OCSEA
has acknowledged that these are not current problems.
--Increases in management staff. OSM does not have information to
confirm OCSEA's allegation. As long as Ohio has adequate staff to
support its program, Ohio has the flexibility to increase its
management staff.
OCSEA also noted that Ohio initiatives such as ``Let's See Trees,''
``Pro H2O,'' and ``Be Kind, Remine'' may have taken needed
resources away from regulatory, permitting, and AML needs. Although
Ohio's rules provide for authorization to conduct coal mining on
previously mined areas, Ohio has not approved any remining
applications. The Director has no reason to believe that Ohio's
initiatives negatively impact on its program. OSM's annual reports have
not found that diversion of program resources to these initiatives is a
program deficiency.
OCSEA has acknowledged that issues raised in OSM's annual report on
the processing of exploration applications and notices of intent to
explore were not related to staffing by its quote of Ohio's intent to
revise and clarify existing policy. The Director agrees with OCSEA's
characterization that these issues were not related to the reduction in
Ohio's staff.
9. OCSEA commented that OSM's Evaluation Year 1992 report states
that Ohio demonstrated to OSM that no significant staff reductions were
expected. The Director agrees with this statement and notes that at the
time of the Evaluation Year 1992 report, Ohio did not anticipate major
staffing changes. However, Ohio subsequently decided that reductions in
its approved level of staffing were necessary. Under section 503(a)(3)
a State regulatory authority can modify its approved level of staffing
as long as it has sufficient administrative and technical personnel to
regulate mining in accordance with the Act. The Director finds that the
approval of PA 63 will not diminish Ohio's ability to continue to
efficiently and effectively conduct its approved program.
10. OCSEA commented that Ohio's staff reductions will cause
implementation problems of OSM's REG-8 State Oversight Program. The
Director disagrees with this comment. OSM's uses its Directives System
to promulgate official policy and procedures to all OSM personnel.
Specifically, REG-8 applies to all persons and OSM organizational units
involved in oversight of State regulatory and State and Tribal
Abandoned Mine Land Reclamation programs. Therefore, REG-8 is only
binding on OSM and places no responsibilities on the Ohio program.
11. OCSEA noted that the number of geologists used to review the
hydrology portion of applications has been reduced by 50 percent. OCSEA
has concerns with Ohio's meeting potential requirements of the Federal
government as a result of hydrology oversight. As discussed in
Director's Finding B, there has been a decrease in the number of
permitting actions and an increase in the Industrial Minerals Section.
The Director finds that the approval of PA 63 will not affect Ohio's
ability to continue to efficiently and effectively conduct its approved
program.
12. OCSEA commented that OSM's Evaluation Year 1992 report
indicated that Ohio's rate of citation of violations is a stated
concern of OSM relative to Ohio's enforcement program. The Director
agrees with the commenter that uncited violations continue to be a
problem in Ohio. To address this problem, Ohio and OSM formed a joint
team in 1993 (after Ohio's staff reorganization) to study the issue of
uncited violations and to make recommendations in the first draft of
the 1994 Annual Evaluation Report (Administrative Record No. OH-2047).
The team did not find that a shortage of Ohio inspectors was a cause of
the uncited violations. The team did recommend better time management
by Ohio's 24 reclamation inspectors but did not find that additional
inspectors must be hired. Therefore, the Director has concluded that
OSM and Ohio can effectively resolve the issue of uncited violations
under the staffing structure proposed by Ohio in PA 63.
13. OCSEA noted that, even though the permitting statistics have
dropped, the number of applications received is still comparable to the
past 3 years. Information held by both OSM and Ohio does not support
OCSEA's conclusion and OSM is unaware of any documentation to support
this statement.
Comments were also received from Howard R. Fauss, P.E. Mr. Fauss's
comments concern the proposed abolishment and restructuring of the
regulatory and AML engineering staff positions. Since the Director is
deferring his decision on these portions of PA 63, Mr. Fauss's comments
will not be discussed in this document but will be discussed in the
final rule on the deferred engineering portions of the amendment.
Comments were received from the Ohio Historic Preservation Office
(OHPO). The OHPO did not object to the proposed amendment. Rather the
OHPO was concerned that, due to the proposed reorganization and
staffing reduction, the Division of Reclamation will be able to carry
out its responsibilities under Sections 106 and 110 of the National
Historic Preservation Act.
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 Labor, Mine Safety and Health Administration, responded
without comment.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Ohio proposed to make in this amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record Nos. OH-1849 and OH-
1975). By letter dated April 20, 1993 (Administrative Record No. OH-
1868), EPA commented that a decrease in staffing levels may possibly
lead to adverse water quality impacts if there is a decrease in
oversight of the regulated community. At this time, the Director is not
aware that the water quality is affected by the staffing reductions.
OSM through its normal oversight process will insure that Ohio is able
to continue to efficiently and effectively conduct its approved
programs.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Ohio on March 15, 1993, and as clarified on
June 16, 1993, December 6, 1993, and April 21, 1994. The Director
defers decision on the regulatory engineering portion of the amendment,
as discussed above in the three findings in Section G.
The Federal regulations at 30 CFR Part 935 codifying decisions
concerning the Ohio program are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
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 the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In the
oversight of the Ohio program, the Director will recognize only the
statutes, regulations and other materials approved by OSM, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by Ohio of only such
provisions.
VI. Procedural Determinations
Executive Order No. 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review). (See also Public Comments.)
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. (See also Public Comments.)
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.)
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. 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: August 18, 1994.
Tim L. Dieringer,
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 (sss) to read as
follows:
Sec. 935.15 Approval of regulatory program amendments.
* * * * *
(sss) The following amendment to the Ohio regulatory program, as
submitted to OSM on March 15, 1993, and clarified on June 16, 1993,
December 6, 1993, and April 21, 1994, is approved, effective September
1, 1994: Program Amendment Number 63 which reduces and reorganizes
approved staffing levels. Action is deferred on the engineering portion
of the amendment until after Ohio has completed the reorganization and
resubmitted the final staffing configuration to OSM.
[FR Doc. 94-21583 Filed 8-31-94; 8:45 am]
BILLING CODE 4310-05-M
