[Federal Register Volume 69, Number 186 (Monday, September 27, 2004)]
[Rules and Regulations]
[Pages 57640-57647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21539]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-248-FOR]


Ohio Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving an amendment to the Ohio surface coal mining 
regulatory program (the Ohio program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). The amendment we are 
approving revises the Ohio program to reflect changes promulgated by 
the U.S. Environmental Protection Agency (EPA) related to coal remining 
operations. The amendment is intended to revise the Ohio program to be 
consistent with the corresponding Federal regulations.

DATES: Effective September 27, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Chief, Pittsburgh 
Field Division, Office of Surface Mining Reclamation and Enforcement, 
Appalachian Regional Coordinating Center, 3 Parkway Center, Pittsburgh, 
Pennsylvania 15220, Telephone (412) 937-2153. E-mail: 
<a href="/cdn-cgi/l/email-protection#6a0d18030f0d0f182a051907180f440d051c"><span class="__cf_email__" data-cfemail="c3a4b1aaa6a4a6b183acb0aeb1a6eda4acb5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program
II. Submission of the Amendment
III. OSM's Findings

[[Page 57641]]

IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Ohio Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Ohio program on August 16, 1982. You can 
find background information on the Ohio program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Ohio program in the August 16, 1982, Federal Register 
(47 FR 34687). You can also find later actions concerning Ohio's 
program and program amendments at 30 CFR 935.11, 935.15, and 935.16.

II. Submission of the Amendment

    By letter dated November 7, 2003, Ohio sent us an amendment to its 
program (Administrative Record Number OH-2184-00) under SMCRA (30 
U.S.C. 1201 et seq.). Ohio proposed to revise the Ohio Administrative 
Code (OAC) rules, Sections 1501:13-1-02 and 1501:13-4-15 relating to 
coal remining operations and water quality standards so that the Ohio 
program is consistent with the revised U.S. Environmental Protection 
Agency's (EPA) water quality standards relating to coal remining 
operations (January 23, 2002; 67 FR 3370).
    We announced receipt of the proposed amendment in the January 20, 
2004, Federal Register (69 FR 2689) (Administrative Record Number OH-
2184-02). In the same document, we opened the public comment period and 
provided an opportunity for a public hearing or meeting on the 
amendment's adequacy. We did not hold a hearing or a meeting because no 
one requested one. The public comment period closed on February 19, 
2004. We received comments from one Federal agency.
    In the letter that accompanied the State's November 7, 2003, 
submittal of this amendment, the Chief of the Division of Mineral 
Resources Management (DMRM) stated that the intent of the proposed 
amendment is to ``bring Ohio's program up to date with the recent 
changes promulgated by the USEPA [United States Environmental 
Protection Agency] on January 23rd, 2002 [67 FR 3370] to 40 CFR part 
434, subpart G Coal Remining. * * *'' The letter also stated that the 
DMRM ``proposes updating existing policy and procedure directives to 
capture the statistical and monitoring procedures for coal mining.'' 
The statistical and monitoring procedures referred to in the quoted 
language above are located in appendix B to 40 CFR part 434.
    Ohio's submittal also included two draft documents. One of the 
draft documents is titled ``Memorandum of Agreement, Remining NPDES 
Permits'' and concerns an agreement between the Ohio Environmental 
Protection Agency (OEPA) and Ohio Department of Natural Resources, DMRM 
related to the issuance of remining National Pollutant Discharge 
Elimination System (NPDES) permits. The second draft document is titled 
``Policy/Procedure Directive, Regulatory'' and outlines the inspection 
responsibilities for pollution abatement areas. Because both of these 
documents were in draft form and not applicable as a State program 
amendment, we did not request public comment on the documents in the 
January 20, 2004, Federal Register notice.

III. OSM's Findings

    Following are findings we made concerning the amendments under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment. Any revisions that we do not specifically 
discuss below concern nonsubstantive wording or editorial changes, or 
re-codification changes resulting from these amendments, and we are 
approving them here without discussion.
    As we noted above, Ohio submitted the proposed amendment to update 
Ohio's program with the recent changes to 40 CFR part 434, subpart G--
Coal Remining that were promulgated by the EPA on January 23rd, 2002. 
The EPA regulations apply to pre-existing discharges that are located 
within, or that are hydrologically connected to, pollution abatement 
areas of a coal remining operation. The EPA regulations implement 
Section 301(p) of the Clean Water Act, which provides incentives for 
remining abandoned mine lands that pre-date the passage of SMCRA in 
1977.
    Despite the fact that Ohio submitted the amendment to update its 
program with the recent changes to EPA's regulations at 40 CFR part 
434, subpart G--Coal Remining, our standards for review and approval of 
State program amendments, as provided in the Federal regulations at 30 
CFR 732.17(h)(10) and 732.15(a), are SMCRA and its implementing 
regulations at 30 CFR part 700 to End. That is, our standards of 
approval for the proposed amendments are not the Clean Water Act nor 
EPA's regulations at 40 CFR part 434, but are SMCRA and its 
implementing regulations.
    We note, however, that the Federal regulations at 30 CFR 816/
817.42, concerning hydrologic balance, water quality standards and 
effluent limitations, provide as follows:

    Discharges of water from areas disturbed by surface mining 
activities shall be made in compliance with all applicable State and 
Federal water quality laws and regulations and with the effluent 
limitations for coal mining promulgated by the U.S. Environmental 
Protection Agency set forth in 40 CFR 434.

    Therefore, while our standards for review and approval of the 
amendments are SMCRA and its implementing regulations at 30 CFR part 
700 to End, we will also discuss the proposed amendments in the light 
of the EPA regulations at 40 CFR part 434, subpart G--Coal Remining.

1. 1501:13-1-02 Definitions

    a. Definition of ``Abatement plan.'' This definition has been 
revised by adding a reference to ``best management practices'' and, as 
an example of best management practices, the phrase ``daylighting old 
underground works.'' As amended, the definition provides as follows:

    (A) ``Abatement plan'' means any individual technique or 
combination of techniques, the implementation of which may result in 
reduction of the base line [baseline] pollution load. Abatement 
techniques may include but are not limited to Best Management 
Practices such as: addition of alkaline material, daylighting old 
underground works, special plans for managing toxic- and acid-
forming material, regrading, and revegetation.

    This new State provision appears to be consistent with EPA's 
requirements at 40 CFR 434.72(a) concerning effluent limitations 
attainable by the application of best practicable control technology 
currently available. The EPA provision at 40 CFR 434.72(a) provides 
that the operator must submit a site-specific ``Pollution Abatement 
Plan'' to the permitting authority for the pollution abatement area. 
The EPA requirement further provides, among other things, that the Plan 
must identify the selected ``best management practices (BMPs)'' to be 
used. In its discussion of BMPs for permits issued after the 1987 
amendment to the Clean Water Act

[[Page 57642]]

(January 23, 2002; 67 FR 3370, 3376), EPA stated that ``[t]hese BMPs 
include special handling of acid-producing materials, daylighting of 
abandoned underground mines, control of surface water and ground water, 
control of sediment, addition of alkaline material, and passive 
treatment.'' Therefore, the State's proposed revision to the definition 
of ``Abatement plan'' appears to be consistent with EPA's requirements 
concerning Pollutional Abatement Plans at 40 CFR 434.72(a).
    Neither SMCRA nor its implementing regulations have a definition of 
``best management practices.'' However, we find that the addition of 
the term ``best management practices'' and the addition of the phrase 
``daylighting old underground works'' as a specific example of a best 
management practice are not inconsistent with SMCRA or its implementing 
regulations and do not render the existing definition less effective 
than the Federal regulations at 30 CFR 816/817.42, which require 
compliance with all applicable State and Federal water quality laws and 
regulations and with the effluent limitations for coal mining 
promulgated by EPA at 40 CFR part 434. Therefore, we are approving the 
amendments to the definition of ``Abatement plan.''
    b. Definition of ``Acid water.'' This definition has been revised 
by changing the pH standard and by adding the phrase ``or a total iron 
concentration equal to or greater than 10mg/l.'' As amended, the 
definition provides as follows:

    (D) `Acid water' means any waters, the pH of which, as 
determined by standard methods, is less than 6.5, or a total iron 
concentration equal to or greater than 10mg/l.

    The amended definition of ``Acid water'' appears to be consistent 
with EPA's definition of AMD (acid mine drainage) in appendix A of the 
preamble to EPA's January 23, 2002, final rule notice (67 FR 3370, 
3405). EPA defines AMD as acid mine drainage which, before any 
treatment, either has a pH of less than 6.0 or a total iron 
concentration equal to or greater than 10 mg/l. The pH standard in the 
State's definition of acid water (less than 6.5) is a higher standard 
than EPA's standard for AMD (less than 6.0) and, therefore, appears to 
be not inconsistent with the EPA standard.
    The Federal regulations at 30 CFR 701.5 define the term ``acid 
drainage'' as follows:

    Acid drainage means water with a pH of less than 6.0 and in 
which total acidity exceeds total alkalinity, discharged from an 
active, inactive or abandoned surface coal mine and reclamation 
operation or from an area affected by surface coal mining and 
reclamation operations.

    There is no definition of ``acid water'' in SMCRA or its 
implementing regulations. However, there is a definition in OSM's 
regulations for ``acid drainage'' at 30 CFR 701.5. The State has set a 
higher pH standard (6.5) than the 6.0 pH standard in OSM's definition. 
We note Ohio also has a definition for ``acid drainage'' which is 
identical to and no less effective than the Federal definition. There 
is nothing in the proposed definition of ``acid water'' that supersedes 
or replaces the definition of ``acid drainage'' or the State's effluent 
limitation standards for iron or its compliance with the EPA effluent 
limitation at 40 CFR part 434. Therefore, we find that the State's 
definition is not inconsistent with the Federal definition and can be 
approved.
    c. Definition of ``Base line pollution load.'' This definition has 
been revised by deleting the term ``pH'' and replacing that term with 
the words ``net acidity.'' In addition, the word ``total'' is added 
immediately before the words ``iron,'' and ``manganese.'' The words 
``and total suspended solids'' are added immediately following the word 
``manganese.'' As amended, the definition provides as follows:

    (N) ``Base line pollution load'' means the characterization of 
the material being discharged from or on the pollution abatement 
area, described in terms of mass loading for net acidity, total iron 
and total manganese, and total suspended solids, including seasonal 
variations and variations in response to precipitation events.

    The EPA regulations do not specifically define the term ``baseline 
pollution load.'' However, the EPA regulations at 40 CFR part 434, 
appendix B outline the procedures for determining the baseline loadings 
of pre-existing pollutional discharges, and provide us with some 
understanding of the term baseline pollution load. Essentially, 
baseline pollution load is an estimate of the existing quantities of 
pollutants in a discharge as determined by at least monthly sampling 
over a period of 12 months. Such a sampling regimen would take into 
consideration the seasonal changes in water quantities and pollutant 
concentrations. As amended, the State's definition of ``Base line 
pollution load'' appears to be consistent with and incorporates the 
same pollutant terminology that appear in the table of effluent 
limitations at 40 CFR 434.72(b)(1).
    There is no definition of ``Base line pollution load'' in SMCRA or 
its implementing regulations. We find, however, that the State's 
definition is not inconsistent with the Federal regulations at 30 CFR 
816/817.42, which require compliance with all applicable State and 
Federal water quality laws and regulations and with the effluent 
limitations for coal mining promulgated by EPA at 40 CFR part 434 and 
can be approved.
    d. Definition of ``Best available technology economically 
achievable.'' This definition has been totally revised to provide as 
follows:

    (O) ``Best available technology economically achievable'' for 
remining operations means implementation of a pollution abatement 
plan that incorporates Best Management Practices (BMPs) designed to 
improve pH (as acidity) and reduce pollutant loadings of iron, 
manganese and sediment to the maximum extent possible from or on the 
pollution abatement area.
    (1) BMP's are practices implemented during the mining and 
reclamation of remining sites that are designed to reduce, if not 
completely eliminate, the pre-existing water pollution problems. 
BMP's are tailored to specific mining operations based largely on 
pre-existing site conditions, hydrology, and geology. BMP's are 
designed to function in a physical and/or geochemical manner to 
reduce pollution loadings. These BMP measures include engineering, 
geochemical, daylighting, regrading, revegetation, diversion ditches 
or other applicable practices.

    In the preamble to the Federal Register notice in which EPA 
promulgated its coal remining regulations at 40 CFR part 434, subpart 
G, EPA discussed the term ``best available technology economically 
achievable'' (BAT) (67 FR 3370, 3379; January 23, 2002). Specifically, 
EPA stated that it ``is establishing that the best available technology 
economically achievable for remining operations is implementation of a 
pollution abatement plan that incorporates BMPs [best management 
practices] designed to improve pH (as acidity) and reduce pollutant 
loadings of iron, manganese and sediment, and a requirement that such 
pollutant levels do not increase over baseline conditions.'' In the 
same notice, in a discussion of remining permits issued by various 
States under Section 301(p) of the Clean Water Act, EPA stated that the 
remining operations must meet the alternate baseline numeric limits 
specified in the permits ``and must implement site-specific BMPs'' (67 
FR at 3376). These BMPs, EPA stated, ``include special handling of 
acid-producing materials, daylighting of abandoned underground mines, 
control of surface water and ground water, control of sediment, 
addition of alkaline material, and passive treatment'' (67 FR at 3376). 
Ohio's definition of ``Best available technology economically

[[Page 57643]]

achievable,'' with its included definition of ``best management 
practices'' appears to be consistent with EPA's discussion of the 
meaning of these terms in its January 23, 2002, Federal Register 
notice.
    There is no definition of ``Best available technology economically 
achievable'' in SMCRA or its implementing regulations. We find, 
however, that the State's definition is not inconsistent with the 
Federal regulations at 30 CFR 816/817.42, which require compliance with 
all applicable State and Federal water quality laws and regulations and 
with the effluent limitations for coal mining promulgated by EPA at 40 
CFR part 434 and can be approved.
    e. Definition of ``Chief.'' This definition, at 13-1-02(R), has 
been revised to mean the Chief of the division of ``Mineral Resources 
Management.'' The name change resulted when Ohio's Department of 
Natural Resources combined the responsibilities of the Division of Oil 
and Gas with those of the Division of Mines and Reclamation. We find 
that this revision does not render the Ohio program less effective than 
the Federal regulations and can be approved.
    f. Definition of ``Pollution abatement area.'' This definition has 
been amended by adding a new sentence at the end of the existing 
definition. The new sentence provides that the ``pollution abatement 
area must include, to the extent practicable, areas adjacent to and 
nearby the remining operation that also must be affected to reduce the 
pollution load of the pre-existing discharges and may include the 
immediate location of the pre-existing discharges.'' As amended, the 
definition provides as follows:

    (MMMM) ``Pollution abatement area'' means that part or parts of 
the permit area which are causing or contributing to the base line 
[baseline] pollution load, and which must be affected to bring about 
potential improvement of the base line [baseline] pollution load, 
and which may include the immediate location of the discharge(s). 
The pollution abatement area must include, to the extent 
practicable, areas adjacent to and nearby the remining operation 
that also must be affected to reduce the pollution load of the pre-
existing discharges and may include the immediate location of the 
pre-existing discharges.

    The new sentence that has been added to the definition of 
``Pollution abatement area'' appears to be substantively identical to 
the counterpart sentence in EPA's definition of ``pollution abatement 
area'' in the Federal regulations at 40 CFR 434.70(b). There is no 
definition of ``Pollution abatement area'' in SMCRA or its implementing 
regulations. We find, however, that the State's definition is not 
inconsistent with the Federal regulations at 30 CFR 816/817.42, which 
require compliance with all applicable State and Federal water quality 
laws and regulations and with the effluent limitations for coal mining 
promulgated by EPA at 40 CFR part 434 and can be approved.
    g. Definition of ``Pre-existing discharge.'' This definition has 
been amended by adding a new sentence at the end of the existing 
definition. As amended, the definition provides as follows:

    (OOOO) ``Pre-existing discharge'' means a discharge from surface 
or subsurface waters which is located on previously mined area as 
defined in this rule. This term shall include a pre-existing 
discharge that is relocated as a result of the implementation of 
best management practices contained in the abatement plan.

    The new sentence that was added to the definition of ``Pre-existing 
discharge'' appears to be substantively identical to the counterpart 
sentence in EPA's definition of ``pre-existing discharge'' in the 
Federal regulations at 40 CFR 434.70(c). There is no definition of 
``Pre-existing discharge'' in SMCRA or its implementing regulations. We 
find, however, that the State's definition is not inconsistent with the 
Federal regulations at 30 CFR 816/817.42, which require compliance with 
all applicable State and Federal water quality laws and regulations and 
with the effluent limitations for coal mining promulgated by EPA at 40 
CFR part 434 and can be approved.

2. OAC 1501:13-4-15 Authorization To Conduct Coal Mining on Pollution 
Abatement Areas

    This provision is amended by adding new paragraphs 1501:13-4-
15(C)(2)(a), (b) and (c) as follows:

    (a) If the Chief determines that it is infeasible to collect 
samples for establishing the baseline pollution load and that 
remining will result in significant improvement that would not 
otherwise occur, then the numeric effluent limitations do not apply 
to the pollution abatement area. Pre-existing discharges for which 
it is infeasible to collect samples for determination of baseline 
pollutant levels include, but are not limited to, discharges that 
exist as a diffuse groundwater flow that cannot be assessed via 
sample collection; a base flow to a receiving stream that cannot be 
monitored separate from the receiving stream; a discharge on a steep 
or hazardous slope that is inaccessible for sample collection; a 
pre-existing discharge that is too large to adequately assess via 
sample collection; or a number of pre-existing discharges so 
extensive that monitoring of individual discharges is infeasible.
    (b) If the Chief approves a non-numeric NPDES remining permit 
the operator shall implement a pollution abatement plan 
incorporating BMP's designed to reduce the pollutant levels of 
acidity, iron, manganese, and solids in pre-existing discharges. The 
monitoring plan will be determined by the Chief. An operator who 
obtains a non-numeric NPDES remining permit will not be subject to 
paragraphs F(2), (3), (4), (5), (6) and (H)(3)(c) of this section.
    (c) TSS [total suspended solids] and SS [suspended solids] are 
exempt during mining and reclamation, if the Chief determines it is 
infeasible or impractical based on the site specific conditions of 
the soil, climate, topography, steep slopes, or other baseline 
conditions provided that the operator demonstrates that significant 
reductions of TSS and SS will be achieved through the incorporation 
of sediment control BMP's into the pollution abatement plan as 
required under paragraph (C)(4).

    On January 23, 2002, the EPA amended 40 CFR part 434 by adding new 
subpart G-Coal Remining (67 FR 3370). 40 CFR 434.72(b)(1) sets forth 
the effluent limits for pre-existing discharges. 40 CFR 434.72(b)(2) 
authorizes an exception to compliance with the effluent limitations at 
40 CFR 434.72(b)(1) in cases where the permitting authority determines 
that it is infeasible to collect samples for establishing the baseline 
pollutant levels and that remining will result in significant 
improvement that would not otherwise occur. The proposed State language 
at OAC 1501: 13-4-15 (C)(2)(a) appears to be substantively identical to 
the EPA provisions at 40 CFR 434.72(b)(2).
    OAC 1501: 13-4-15(C)(2)(a) authorizes the use of non-numeric 
effluent limitations in cases where the Chief of the DMRM determines 
that it is infeasible to collect samples for establishing the baseline 
pollution load and where significant improvement that would not 
otherwise occur. In response to our request to EPA for its concurrence 
and comments on the proposed amendment, the EPA concurred with the 
proposed amendment and stated that it had no comments (Administrative 
Record Numbers OH-2184-03 and OH-2184-04). EPA is primarily responsible 
for establishing effluent limitations. Therefore, for the reasons 
discussed above, we find that proposed OAC 1501:13-4-15 (C)(2)(a) can 
be approved because it is in accordance with Section 702(a) of SMCRA 
which provides that nothing in SMCRA can be construed as superseding, 
amending or modifying the Federal Water Pollution Control Act (i.e. the 
Clean Water Act) or its regulations.

[[Page 57644]]

    OAC 1501: 13-4-15(C)(2)(b) exempts an operator who receives a non-
numeric NPDES remining permit under OAC 1501: 13-4-15(C)(2)(a) from the 
discharge treatment requirements at OAC 1501: 13-4-15 F(2), (3), (4), 
(5), (6), and from the bond release requirements at OAC 1501: 13-4-
15(H)(3)(c). The new State provision appears to be consistent with 
EPA's requirements concerning effluent limitations for coal remining 
operations at 40 CFR 434.72(b)(2). The EPA provision provides that if 
the permitting authority determines that it is infeasible to collect 
samples for establishing the baseline pollutant levels pursuant to 40 
CFR 434.72(b)(1), and that remining will result in significant 
improvement that would not otherwise occur, then the numeric effluent 
limitations at 40 CFR 434.72(b)(1) do not apply. That is, under the EPA 
rule, no effluent limitations would be established for pre-existing 
pollutional discharges that qualify under the ``unfeasible to establish 
baseline pollutant levels'' provision at 40 CFR 434.72(b)(2). 
Therefore, when the State authorizes a non-numerical NPDES permit for 
pre-existing pollutional discharges, no baseline effluent limitation 
standards would be established for the qualifying discharges. 
Therefore, the requirements concerning treatment of discharges at OAC 
1501: 13-4-15 F(2), (3), (4), (5), and (6) would not apply to the 
qualifying discharges because no numerical baseline treatment standards 
were established and these Subsections pertain to numeric effluent 
limitations. Similarly, the bond release requirements at OAC 1501: 13-
4-15(H)(3)(c) would not apply to the qualifying discharges because no 
numerical baseline treatment standards were established.
    The EPA regulations concerning alternate and non-numerical effluent 
limitations for pre-existing pollutional discharges, at 40 CFR part 
434, subpart G-Coal Remining, apply only to pre-existing discharges 
that are not co-mingled with waste streams from active mining areas. 
Any pre-existing discharge that is co-mingled with active mining 
wastewater is subject to the most stringent limitations applicable to 
any component of the waste stream. Once active co-mingling of waters 
has ceased, however, the pre-existing discharge is not required to 
continue to meet the more stringent effluent limits. EPA stated that it 
believes that it would create a significant disincentive for remining 
activities to continue to require compliance with the more stringent 
effluent limits after co-mingling has ceased (67 FR 3378). The same is 
true in Ohio at OAC 1501: 13-4-15(F)(1).
    In its January 23, 2002, Federal Register notice, EPA explained 
that in specific and limited cases, permit requirements may be based on 
implementation of an approved BMP plan ``in lieu of numeric limitations 
based on baseline pollution levels'' (67 FR 3378). That is, in specific 
and limited cases, there would be no numerical effluent limitations 
established based upon baseline sampling data. Rather, the Pollution 
Abatement Plan that is required under 40 CFR 434.72(a), must be 
designed to reduce the pollution load from pre-existing discharges and 
must identify selected BMPs to be used. The BMPs must be implemented as 
specified in the plan. As we noted above, EPA concurred with the 
proposed Ohio amendments and stated that it had no comments. Neither 
SMCRA nor its implementing regulations have a counterpart to 1501:13-4-
15(F)(2), (3), (4), (5), (6) and (H)(3)(c). Therefore, an exemption 
from these requirements found at proposed OAC 1501:13-4-15 (C)(2)(b), 
does not render the Ohio program inconsistent with the Federal 
regulations at 30 CFR 816/817.42 and can be approved. Considering the 
above, we find that proposed OAC 1501: 13-4-15(C)(2)(b) does not render 
the Ohio program less effective than the Federal regulations at 30 CFR 
816/817.42 concerning compliance with water quality standards and 
effluent limitations and can be approved.
    OAC 1501: 13-4-15(C)(2)(c) exempts pre-existing pollutional 
discharges from TSS and SS standards upon the specified determinations 
by the Chief of the DMRM. This new State provision appears to be 
consistent with EPA's requirements concerning effluent limitations for 
coal remining operations at 40 CFR 434.72(b)(1). Footnote 1 to the 
table of effluent limitations at 40 CFR 434.72(b)(1) provides as 
follows:

    \1\ A pre-existing discharge is exempt from meeting standards in 
Subpart E of this part [40 CFR part 434, subpart E] for TSS and SS 
when the permitting authority determines that Subpart E standards 
are infeasible or impractical based on the site-specific conditions 
of soil, climate, topography, steep slopes, or other baseline 
conditions provided that the operator demonstrates that significant 
reductions of TSS and SS will be achieved through the incorporation 
of sediment control BMPs into the Pollution Abatement Plan as 
required by paragraph (a) of this section [40 CFR 434.72(a)].

    The proposed State provision at OAC 1501: 13-4-15(C)(2)(c) appears 
to be substantively identical to and provides the same exemption 
concerning TSS and SS as is authorized by EPA at 40 CFR 434.72(b)(1). 
As 40 CFR 434.71(a) clarifies, 40 CFR part 434, subpart G applies to 
pre-existing discharges that are located within or are hydrologically 
connected to pollution abatement areas of a coal remining operation. 
Therefore, the exemption for TSS and SS applies only to pre-existing 
discharges that are located within or are hydrologically connected to 
pollution abatement areas of a coal remining operations. As we noted 
above, EPA concurred with the proposed amendments and stated that it 
had no comments. We find that proposed OAC 1501: 13-4-15(C)(2)(c) does 
not render the Ohio program less effective than the Federal regulations 
at 30 CFR 816/817.42, which requires compliance with all applicable 
State and Federal water quality laws and regulations, or with 30 CFR 
780.21(j)(2)(ii), which requires the monitoring of point source 
discharges in accordance with 40 CFR parts 122, 123 and 434, and can be 
approved.

3. OAC 1501:13-4-15(E)(3) Notification of Implementation and Completion 
of Each Step of the Abatement Plan

    Subsection 13-4-15(E)(3) is deleted from the performance standards 
at OAC 1501:13-4-15(E). The deleted language provided that an operator 
shall ``[n]otify the chief immediately prior to the start and upon 
completion of each step of the abatement plan.'' There is no direct 
counterpart to the deleted State language in SMCRA or its implementing 
regulations, nor in the EPA requirements at 40 CFR part 434, subpart G 
concerning coal remining.
    The State's provision at Subsection 13-4-15(C)(4)(b) requires an 
operator to provide ``a description and explanation of each step in the 
proposed abatement plan.'' In addition, Subsection 13-4-15(E)(4) 
provides than an operator must ``submit a certification by the 
supervising professional engineer of the proper construction of certain 
steps of the abatement plan which may include, but not be limited to, 
the completion of mine seals, compaction tests, subsurface drains and, 
where necessary, stability analyses.'' As we noted above, EPA concurred 
with the proposed amendments and stated that it had no comments. 
Therefore, it appears that the proposed deletion does not render the 
performance standards at 13-4-15(E) inconsistent with EPA's 
requirements at 40 CFR part 434, subpart G concerning coal remining. We 
find that the proposed deletion of OAC 1501: 13-4-15(E)(3) does not 
render the Ohio program less effective than the Federal regulations at 
30 CFR 816/817.42

[[Page 57645]]

concerning compliance with all applicable State and Federal water 
quality laws and regulations and with the effluent limitations for coal 
mining promulgated by EPA at 40 CFR part 434 and can be approved.

4. OAC 1501:13-4-15(F)(1) Treatment of Discharges

    Subsection 13-4-15(F)(1) is revised to provide as follows:

    (F) Treatment of discharges.
    (1) For any pre-existing discharges from or on the pollution 
abatement area, that are commingled with active mining wastewater, 
the operator shall comply with rule 1501:13-9-04(B) of the 
Administrative Code, until the pollution abatement plan is 
implemented and the commingling is ceased.

    Prior to being amended, this provision provided that ``[e]xcept for 
pre-existing discharges from or on the pollution abatement area the 
operator shall comply with rule 1501:13-9-04 of the Administrative 
Code.'' The proposed amendment, in effect, clarifies that when 
commingling occurs between pollutional discharges from the pollutional 
abatement area and drainage from the active mining, the alternate 
effluent limitations for the pollutional discharges from the 
pollutional abatement area no longer apply, and the commingled 
discharge must comply with the standards at OAC 1501:13-9-04(B). 
Compliance with OAC 1501:13-9-04(B) must continue until the pollution 
abatement plan is implemented and the commingling ceases.
    As amended, OAC 1501:13-4-15(F)(1) appears to be consistent with 
EPA's requirements concerning effluent limitations for coal remining 
operations at 40 CFR 434.71(b). EPA's requirements at 40 CFR 434.71(b) 
provide that a pre-existing discharge that is intercepted by active 
mining or that is commingled with waste streams from active mining 
areas for treatment is subject to the provisions of 40 CFR 434.61 
concerning the commingling of waste streams. 40 CFR 434.71(b) also 
provides that Section 434.61 applies to the waste stream only during 
the time when the pre-existing discharge is intercepted by the active 
mining or is commingled with active wastewater for treatment or 
discharge. After commingling has ceased, the pre-existing discharge is 
subject to the provisions of 40 CFR part 434, subpart G, coal remining.
    There is no specific counterpart to the proposed language in either 
SMCRA or its implementing regulations. However, we find that Subsection 
13-4-15(F)(1) is consistent with the Federal regulations at 30 CFR 816/
817.42, which require compliance with all applicable State and Federal 
water quality laws and regulations and with the effluent limitations 
for coal mining promulgated by EPA at 40 CFR part 434 and can be 
approved. As we noted above, EPA concurred with the proposed amendments 
and stated that it had no comments.

5. OAC 1501:13-4-15(H)(3)(c) Criteria and Schedule for Release of Bonds 
on Pollution Abatement Area

    Subsection 13-4-15(H)(3)(c) has been revised by the addition of the 
phrase ``the total suspended solids meets the standard NPDES limits.'' 
As amended, 13-4-15(H)(3)(c) provides as follows:

    (c) The operator has not exceeded the effluent limitations 
established in the remining NPDES permit from the time of bond 
release pursuant to paragraph (H)(2) of this rule for a period of 
two years from the discontinuance of treatment pursuant to paragraph 
(F)(5) of this rule; the total suspended solids meets the standard 
NPDES limits.

    OAC 1501:13-4-15 concerns authorization to conduct coal mining on 
pollution abatement areas. Under OAC 1501:13-4-15(H)(3)(c), the 
remaining portion of the bond may be released if, among other 
requirements, the total suspended solids effluent is in compliance with 
the standards identified in the NPDES remining permit. Under a remining 
NPDES permit issued by the State, the total suspended solids 
limitations would be either required to comply with the baseline 
effluent limitations identified under OAC 1501:13-4-15(C)(2), or with 
the exemption to total suspended solids and suspended solids under OAC 
1501:13-4-15(C)(2)(c).
    This new State provision appears to be consistent with EPA's 
requirements concerning effluent limitations for total suspended solids 
for coal remining operations at 40 CFR 434.72(b)(1). Footnote 1 to the 
table of effluent limitations at 40 CFR 434.72(b)(1) provides that a 
pre-existing discharge is exempt from meeting standards in Subpart E of 
40 CFR part 434 for total suspended solids and suspended solids when 
the permitting authority determines that Subpart E standards are 
infeasible or impractical based on the site-specific conditions of 
soil, climate, topography, steep slopes, or other baseline conditions 
provided that the operator demonstrates that significant reductions of 
total suspended solids and suspended solids will be achieved through 
the incorporation of sediment control best management practices into 
the Pollution Abatement Plan as required by paragraph (a) of Section 40 
CFR 434.72(a). The State counterpart to the EPA exemption for total 
suspended solids that is identified in the footnote to Table 1 at 40 
CFR 434.72(b)(1) is the new State language at OAC 1501:13-4-15(C)(2)(c) 
(see finding 2, above).
    There is no specific counterpart to the proposed language at 
Subsection 13-4-15(H)(3)(c) either in SMCRA or its implementing 
regulations. However, we find that Subsection 13-4-15(H)(3)(c) is 
consistent with the Federal regulations at 30 CFR 816/817.42, which 
require compliance with all applicable State and Federal water quality 
laws and regulations and with the effluent limitations for coal mining 
promulgated by EPA at 40 CFR part 434, and with the Phase III bond 
release requirements at 30 CFR 800.40(c)(3) and can be approved. As we 
noted above, EPA concurred with the proposed amendments and stated that 
it had no comments.

IV. Summary and Disposition of Comments

Public Comments

    No comments were received in response to our request for comments 
from the public on the proposed amendments (see Section II of this 
preamble).

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and Section 503(b) of SMCRA we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Ohio program (Administrative 
Record Numbers OH-2184-01). We received a response from one Federal 
agency (see below).

Environmental Protection Agency (EPA) Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued 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.).
    On December 24, 2004, we requested concurrence on the amendment 
from EPA (Administrative Record Numbers OH-2184-01). The EPA responded 
by letter dated March 10, 2004, and an undated letter received by 
facsimile on March 18, 2004 (Administrative Record Numbers OH-2184-03 
and OH-2184-04, respectively). In its undated letter, EPA stated that 
it has ``no comment to offer on those proposed revisions to Ohio 
Administrative Code Section 1501:13-4-15 and 1501:13-1-02 and, as such, 
concur in those revisions.''

[[Page 57646]]

V. OSM's Decision

    As we noted above in Section II., Submission of the Amendment, the 
DMRM stated in its submittal letter dated November 7, 2003, that the 
proposed amendment is intended to bring Ohio's program up to date with 
the recent changes promulgated by the EPA on January 23rd, 2002, to 40 
CFR part 434, subpart G Coal Remining. The DMRM's November 7, 2003, 
letter also stated that it intends to update existing policy and 
procedure directives to capture the statistical and monitoring 
procedures for coal mining. The statistical and monitoring procedures 
that the State referred to are located in appendix B to 40 CFR part 
434.
    It is our understanding that the Ohio program requires compliance 
with the Federal regulations at 40 CFR part 434, including compliance 
with the procedures to be used for establishing effluent limitations 
for pre-existing discharges at coal remining operations that are set 
forth in subpart G. appendix B to part 434. It is also our 
understanding that Ohio will not implement the regulations that we 
approve here until it completes updating its existing policy and 
procedure directives to capture the statistical and monitoring 
procedures for coal mining that are located in appendix B to part 434. 
Our approval of the proposed amendments in the above findings is based 
upon those understandings.
    Based on the above findings, we are approving the amendments 
submitted to us on November 7, 2003.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 935, which codify decisions concerning the Ohio program. 
We find that good cause exists under 5 U.S.C. 553(d)(3) to make this 
final rule effective immediately. Section 503(a) of SMCRA requires that 
the State's program demonstrate that the State has the capability of 
carrying out the provisions of the Act and meeting its purposes. Making 
this rule effective immediately will expedite that process. SMCRA 
requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by Section 3 of Executive Order 12988 and has determined that 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 because 
each 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 
the Federal regulations at 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.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and Section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve Federal regulations involving 
Indian lands.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies 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. 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million;

[[Page 57647]]

(b) will not cause a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; and (c) does not have significant adverse effects 
on competition, employment, investment, productivity, innovation, or 
the ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 12, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 935 is amended as 
set forth below:

PART 935--OHIO

0
1. The authority citation for part 935 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
2. Section 935.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  935.15  Approval of Ohio regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
November 7, 2003..............  September 27,      OAC 1501:13-1-02(A),
                                 2004.              (D), (N), (O), (R),
                                                    (MMMM), (OOOO);
                                                    1501:13-4-
                                                    15(C)(2)(a),(b),(c);
                                                    (C)(3)(b); (E)(3);
                                                    (F)(1), (H)(3)(c).
------------------------------------------------------------------------

[FR Doc. 04-21539 Filed 9-24-04; 8:45 am]
BILLING CODE 4310-05-P


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