21176 Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Proposed Rules 

Issued in Kansas City, Missouri, on April 

20, 2007. 

Charles L. Smalley, 

Acting Manager, Small Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. E7–8163 Filed 4–27–07; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 935 

[OH–252–FOR] 

Ohio Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior. 

ACTION: Proposed rule; public comment 

period and opportunity for public 

hearing on proposed amendment. 

SUMMARY: We (OSM) are announcing 

receipt of a proposed amendment to the 

Ohio regulatory program (the ‘‘Ohio 

program’’) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). Ohio proposes to 

revise the Ohio Revised Code (ORC) 

regarding changes to the State’s 

alternate bonding system (bond pool), 

funding for its regulatory and 

abandoned mine land programs and its 

bond pool, permitting procedures for 

determining the potential that proposed 

mine sites may or may not produce 

acid-mine drainage, and authorizes rulemaking if Ohio becomes covered by a 

State programmatic general permit 

issued by the U.S. Army Corps of 

Engineers for the discharge of dredged 

or fill material into waters of the United 

States by coal mining operations. The 

amendment is primarily intended to 

satisfy a program condition codified in 

the Federal regulations. This 

amendment replaces the State’s bond 

pool amendment that the State 

previously submitted and that OSM 

announced, and requested public 

comments on, in the Federal Register 

dated February 13, 2006 (71 FR 7480). 

This document gives the times and 

locations that the Ohio program and 

proposed amendment to that program 

are available for your inspection, the 

comment period during which you may 

submit written comments on the 

amendment, and the procedures that we 

will follow for the public hearing, if one 

is requested. 

DATES: We will accept written 

comments on this amendment until 4 

p.m. (local time), May 30, 2007. If 

requested, we will hold a public hearing 

on the amendment on May 25, 2007. We 

will accept requests to speak at a 

hearing until 4 p.m., local time, on May 

15, 2007. 

ADDRESSES: You may submit comments, 

identified by OH–252–FOR, by any of 

the following methods: 

• E-mail: grieger@osmre.gov. Include 

OH–252–FOR in the subject line of the 

message; 

• Mail/Hand Delivery: Mr. George 

Rieger, Chief, Pittsburgh Field Division, 

Office of Surface Mining Reclamation 

and Enforcement, 4605 Morse Road, 

Room 102, Columbus, OH 43230. 

Telephone: 614–416–2238. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Instructions: All submissions received 

must include the agency docket number 

for this rulemaking. For detailed 

instructions on submitting comments 

and additional information on the 

rulemaking process, see the ‘‘Public 

Comment Procedures’’ heading in the 

SUPPLEMENTARY INFORMATION section of 

this document. You may also request to 

speak at a public hearing by any of the 

methods listed above or by contacting 

the individual listed under FOR FURTHER

INFORMATION CONTACT. 

Docket: You may review copies of the 

Ohio program, this amendment, a listing 

of any scheduled public hearings, and 

all written comments received in 

response to this document at the 

addresses listed below during normal 

business hours, Monday through Friday, 

excluding holidays. You may also 

receive one free copy of this amendment 

by contacting OSM’s Pittsburgh Field 

Division listed below: 

Mr. George Rieger, Chief, Pittsburgh 

Field Division, Office of Surface 

Mining Reclamation and Enforcement 

4605 Morse Road, Room 102, 

Columbus, OH 43230 614–416–2238. 

E-mail: grieger@osmre.gov. 

Mr. Scott Kell, Acting Chief, Division of 

Mineral Resources Management, Ohio 

Department of Natural Resources, 

2045 Morse Road, Bldg. H–2, 

Columbus, Ohio 43229, Telephone: 

(614) 265–6633. 

FOR FURTHER INFORMATION CONTACT: Mr. 

George Rieger, Chief, Pittsburgh Field 

Division, Telephone: (717) 782–4849, 

extension 11; or 614–416–2238; or 412–

937–2153. E-mail: grieger@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Ohio Program 

II. Description of the Proposed Amendment 

III. Public Comment Procedures 

IV. 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. Description of the Proposed 

Amendment 

By letter dated March 6, 2007, Ohio 

sent us a proposed amendment to its 

program (Administrative Record 

Number OH–2185–28) under SMCRA 

(30 U.S.C. 1201 et seq.). In its letter, 

Ohio stated that in December of 2006, 

the Ohio legislature passed House Bill 

443, which is intended to address many 

of the issues of concern relative to 

Ohio’s bond pool. Ohio proposes to 

revise the Ohio Revised Code (ORC) 

regarding changes to the State’s 

alternate bonding system (bond pool), 

funding for its regulatory and 

abandoned mine land programs and its 

bond pool, permitting procedures for 

determining the potential that proposed 

mine sites may or may not produce 

acid-mine drainage, and authorizes rulemaking if Ohio becomes covered by a 

State programmatic general permit 

issued by the U.S. Army Corps of 

Engineers for the discharge of dredged 

or fill material into waters of the United 

States by coal mining operations. 

The amendment is intended to satisfy 

a program condition codified in the 

Federal regulations at 30 CFR 935.11(h), 

and is in response to OSM’s letter of 

May 4, 2005, issued under provisions of 

30 CFR 733.12(b). The program 

condition provides that Ohio must 

submit a program amendment that 

demonstrates how the alternative 

bonding system will assure timely 

reclamation at the site of all operations 

for which bond has been forfeited. 


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Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Proposed Rules 21177 

The State also acknowledged that its 

March 6, 2007, submittal is intended to 

replace the bond pool amendment that 

the State had submitted to OSM on 

December 19, 2005. We published and 

requested public comment on that 

previous bond pool amendment in the 

Federal Register on February 13, 2006 

(71 FR 7480). Because the State has 

requested that the current amendment 

replace its previous amendment, we are 

hereby withdrawing the proposed 

rulemaking that we announced in the 

Federal Register on February 13, 2006. 

In its March 6, 2007, submittal, Ohio 

also stated that it realizes that the 

passage of HB 443 is only the first step 

in its efforts to establish a bonding 

program in Ohio that is in accordance 

with the requirements of SMCRA. Ohio 

anticipates that significant amendments 

to the Ohio Administrative Code (OAC) 

will be needed in order to ensure that 

the final program amendment, in whole, 

is consistent with the relevant Federal 

regulations. To that end, Ohio stated, 

the Division of Mineral Resources 

Management (DMRM) has chartered 

several workgroups made up of internal 

and external stakeholders to develop 

final procedures and policies that will 

be used as a basis for revising the OAC 

to implement the provisions of HB 443. 

Ohio has requested OSM’s technical 

assistance on these workgroups. 

The current amendment provides the 

following specific revisions. In the 

descriptions below, we have not 

identified the numerous paragraph renumbering and citation referencing 

changes that result from the substantive 

changes proposed in this amendment. 

1. ORC 1513.01(W) Definition of 

‘‘Performance Security’’

This definition is new, and provides 

as follows: 

(W) ‘‘Performance security’’ means a form 

of financial assurance, including, without 

limitation, a surety bond issued by a surety 

licensed to do business in this state; an 

annuity; cash; a negotiable certificate of 

deposit; an irrevocable letter of credit that 

automatically renews; a negotiable bond of 

the United States, this state, or a municipal 

corporation in this state; a trust fund of 

which the state is named a conditional 

beneficiary; or other form of financial 

guarantee or financial assurance that is 

acceptable to the chief. 

In addition to the change quoted 

above, the State has amended or deleted 

terms throughout ORC Chapter 1513 in 

which the word ‘‘bond’’ appears, such 

as in the terms ‘‘performance bond’’ and 

‘‘bond coverage,’’ and has replaced 

those terms with the term ‘‘performance 

security.’’

2. ORC 1513.02(E)(3) Responsibilities 

of the DMRM 

This provision is being amended by 

deleting the phrase ‘‘coal mining 

administration and reclamation reserve 

fund created in section 1513.181 of the 

Revised Code’’ and revising that phrase 

to read: ‘‘Reclamation forfeiture fund 

created in section 1513.18 of the 

Revised Code.’’

3. ORC 1513.02(J) Responsibilities of 

DMRM 

This provision is new, and provides 

as follows: 

(J) If this state becomes covered by a state 

programmatic general permit issued by the 

United States Army Corps of engineers for 

the discharge of dredged or fill material into 

the waters of the United States by operations 

that conduct surface and underground coal 

mining and reclamation operations and the 

restoration of abandoned mine lands, the 

chief may establish programs and adopt rules 

and procedures designed to implement the 

terms, limitations, and conditions of the 

permit. The purpose of the programs, rules, 

and procedures shall be to enable the state 

to reduce or eliminate duplicative state and 

federal project evaluation, simplify the 

regulatory approval process, provide 

environmental protection for aquatic 

resources that is equivalent to Federal 

protection, and satisfy the requirements of 

the United States Army Corps of Engineers 

regulatory program under which the permit 

is issued and that is established under 

section 404 of the ‘‘Federal Water Pollution 

Control Act,’’ 86 Stat. 48 (1972), 33 U.S.C. 

1344, as amended by the ‘‘Clean Water Act 

of 1977,’’ 91 Stat. 1600, 33 U.S.C. 1344; 

section 10 of the ‘‘Rivers and Harbors Act of 

1899,’’ 30 Stat. 1151, 33 U.S.C. 403; and 

section 103 of the ‘‘Marine Protection, 

Research, and Sanctuaries Act of 1972,’’ 86 

Stat. 1055, 33 U.S.C. 1413. 

In its submittal, Ohio stated that ‘‘if’’

a General Permit is issued for Ohio by 

the U.S. Army Corps of Engineers 

regarding discharges into jurisdictional 

waters of United States from surface/ 

underground coal mining operations 

and abandoned mine land reclamation 

(AML) projects, then DMRM ‘‘may’’

establish programs, adopt rules and 

develop procedures to implement the 

General Permit. 

4. ORC 1513.07(B)(1) Permit 

Application; Permit Fee 

Paragraph (B)(1) is proposed to be 

deleted in its entirety, and provides as 

follows. 

(B)(1) Each application for a coal mining 

and reclamation permit or renewal of such a 

permit shall be accompanied by a permit or 

renewal fee in an amount equal to the 

product of seventy-five dollars multiplied by 

the number of acres, estimated in the 

application, that will comprise the area of 

land to be affected within the permit or 

renewal period by the coal mining operation 

for which the permit or renewal is requested. 

5. ORC 1513.07(B)(1)(o) Permit 

Application; Statement of Acid 

Generating Potential and Acid 

Neutralizing Potential 

The following new language is added 

at the end of this existing paragraph: 

If the test borings or core samplings from 

the permit area indicate the existence of 

potentially acid forming or toxic forming 

quantities of sulfur in the coal or overburden 

to be disturbed by mining, the application 

also shall include a statement of the acid 

generating potential and the acid neutralizing 

potential of the rock strata to be disturbed as 

calculated in accordance with the calculation 

method established under section 1513.075 

of the Revised Code or with another 

calculation method. 

In its submittal, Ohio stated that this 

new provision directs applicants to 

provide an Acid Base Accounting 

statement pursuant to methodology 

prescribed in ORC 1513.075, or another 

method. 

6. ORC 1513.07(E)(8) Permit 

Application; Monitoring and 

Recordkeeping Related to Potential 

Acidity and Neutralization Potential 

This paragraph is new and provides 

as follows: 

(8) In the case of the issuance of a permit 

that involves a conflict of results between 

various methods of calculating potential 

acidity and neutralization potential for 

purposes of assessing the potential for acid 

mine drainage to occur at a mine site, the 

permit shall include provisions for 

monitoring and record keeping to identify the 

creation of unanticipated acid water at the 

mine site. If the monitoring detects the 

creation of acid water at the site, the permit 

shall impose on the permittee additional 

requirements regarding mining practices and 

site reclamation to prevent the discharge of 

acid mine drainage from the mine site. As 

used in division (E)(8) of this section, 

‘‘potential acidity’’ and ‘‘neutralization 

potential’’ have the same meanings as in 

section 1513.075 of the Revised Code. 

In its submittal, Ohio stated that this 

new paragraph provides for additional 

monitoring for Acid Mine Drainage if 

there is a conflict concerning the 

assessment of the potential for a mine to 

discharge AMD. In the event 

unanticipated AMD occurs during 

mining and reclamation, additional 

mining practices and reclamation shall 

be required in order to prevent AMD 

discharges. 

7. ORC 1513.075 Definitions and 

Calculating Potential Acidity and 

Neutralization Potential 

This provision is new and provides as 

follows: 

Sec. 1513.075. (A) As used in this section: 


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21178 Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Proposed Rules 

(1) ‘‘Potential acidity’’ means a laboratory 

measurement of the amount of acidity that 

could be produced by material in a rock 

strata proposed to be disturbed by mining 

and that is expressed by a numeral indicating 

the number of tons of that acidity that would 

be present in one thousand tons of disturbed 

overburden. 

(2) ‘‘Neutralization potential’’ means a 

laboratory measurement of the alkalinity of a 

rock strata expressed as the amount of acidity 

that would be neutralized by material 

proposed to be disturbed by mining and that 

is expressed by a numeral indicating the 

number of tons of that alkalinity that would 

be present in one thousand tons of disturbed 

overburden. 

(3) ‘‘Test borings or core samplings’’ refer 

to test borings or core samplings performed 

on rock strata in an area proposed to be 

covered by a permit for a coal mining 

operation, the results of which must be stated 

in the permit application in accordance with 

division (B)(1)(o) of section 1513.07 of the 

Revised Code. 

(B) For purposes of the determination of 

the chief of the division of mineral resources 

management regarding whether to approve 

an application for a permit for a coal mining 

operation based on criteria established in 

divisions (E)(2)(a) and (c) of section 1513.07 

of the Revised Code and related performance 

standards established in division (A)(10) of 

section 1513.16 of the Revised Code, the 

potential acidity and the neutralization 

potential of the rock strata that would be 

disturbed under the permit may be calculated 

in accordance with this section. 

(C) The measurement of potential acidity 

may be based on laboratory analyses of the 

sulfur content of the coal and overburden to 

be disturbed by mining. If the results of test 

borings or core samplings include laboratory 

analyses of the pyritic form of sulfur, the 

applicant may base the calculation of the 

potential acidity for the area on the pyritic 

sulfur content of the coal and overburden to 

be disturbed by mining rather than on the 

total sulfur content. 

(D) The tons of rock in the area represented 

by each core hole resulting from test boring 

or core sampling may be estimated and used 

to calculate the tons of potential acidity and 

tons of neutralization potential for each rock 

stratum. The sum of those values across the 

proposed permit area may be used to 

calculate the site’s overall neutralization 

potential and potential acidity. 

(E) The proposed permit area may not be 

considered to have the potential to create 

acid or other toxic mine drainage if either of 

the following applies: 

(1) The numeral that indicates the site’s 

overall neutralization potential divided by 

the numeral that indicates the site’s overall 

potential acidity results in a quotient that is 

equal to or greater than two. 

(2) The numeral that indicates the 

neutralization potential subtracted from the 

numeral that indicates the potential acidity 

results in a remainder that is equal to or less 

than either of the following: 

(a) Negative five in the case that the total 

sulfur content of rock strata is used to 

calculate potential acidity; 

(b) Negative ten in the case that the pyritic 

sulfur content of rock strata is used to 

calculate potential acidity. 

In its submittal, Ohio stated that this 

new provision defines certain terms 

relative to potential acidity and 

neutralization potential of strata 

overlying the coal to be mined. The 

provision also provides for calculation 

of proposed mining operations’

potential to create acid or toxic drainage 

based on specific criteria and indicates 

that proposed mining areas not meeting 

certain numeric criteria ‘‘may’’ not be 

considered as potential acid/toxic 

producers. 

8. ORC 1513.08 Requirement to File a 

Performance Security 

This provision is amended by 

deleting, adding and rearranging 

language relating to performance 

security. Much new language is added 

to this provision, and the provision is 

reorganized to accommodate the new 

language. As amended this section 

provides as follows: 

Sec. 1513.08. (A) After a coal mining and 

reclamation permit application has been 

approved, but before the permit is issued, the 

applicant shall file with the chief of the 

division of mineral resources management, 

on a form prescribed and furnished by the 

chief, the performance security required 

under this section. 

(B) Using the information contained in the 

permit application; the requirements 

contained in the approved permit and 

reclamation plan; and, after considering the 

topography, geology, hydrology, and 

revegetation potential of the area of the 

approved permit, the probable difficulty of 

reclamation; the chief shall determine the 

estimated cost of reclamation under the 

initial term of the permit if the reclamation 

has to be performed by the division of 

mineral resources management in the event 

of forfeiture of the performance security by 

the applicant. The chief shall send written 

notice of the amount of the estimated cost of 

reclamation by certified mail to the 

applicant. The applicant shall send written 

notice to the chief indicating the method by 

which the applicant will provide the 

performance security pursuant to division (C) 

of this section. 

(C) The applicant shall provide the 

performance security in an amount using one 

of the following: 

(1) If the applicant elects to provide 

performance security without reliance on the 

reclamation forfeiture fund created in section 

1513.18 of the Revised Code, the amount of 

the estimated cost of reclamation as 

determined by the chief under division (B) of 

this section for the increments of land on 

which the operator will conduct a coal 

mining and reclamation operation under the 

initial term of the permit as indicated in the 

application; 

(2) If the applicant elects to provide 

performance security together with reliance 

on the reclamation forfeiture fund through 

payment of the additional tax on the 

severance of coal that is levied under 

division (A)(8) of section 5749.02 of the 

Revised Code, an amount of twenty-five 

hundred dollars per acre of land on which 

the operator will conduct coal mining and 

reclamation under the initial term of the 

permit as indicated in the application. 

However, in order to be eligible to provide 

performance security in accordance with 

division (C)(2) of this section, an applicant 

shall have held a permit issued under this 

chapter for any coal mining and reclamation 

operation for a period of not less than five 

years. In the event of forfeiture of 

performance security that was provided in 

accordance with division (C)(2) of this 

section, the difference between the amount of 

that performance security and the estimated 

cost of reclamation as determined by the 

chief under division (B) of this section shall 

be obtained from money in the reclamation 

forfeiture fund as needed to complete the 

reclamation. 

The performance security provided under 

division (C) of this section for the entire area 

to be mined under one permit issued under 

this chapter shall not be less than ten 

thousand dollars. The performance security 

shall cover areas of land affected by mining 

within or immediately adjacent to the 

permitted area, so long as the total number 

of acres does not exceed the number of acres 

for which the performance security is 

provided. However, the authority for the 

performance security to cover areas of land 

immediately adjacent to the permitted area 

does not authorize a permittee to mine areas 

outside an approved permit area. As 

succeeding increments of coal mining and 

reclamation operations are to be initiated and 

conducted within the permit area, the 

permittee shall file with the chief additional 

performance security to cover the increments 

in accordance with this section. If a permittee 

intends to mine areas outside the approved 

permit area, the permittee shall provide 

additional performance security in 

accordance with this section to cover the 

areas to be mined. 

An applicant shall provide performance 

security in accordance with division (C)(1) of 

this section in the full amount of the 

estimated cost of reclamation as determined 

by the chief for a permitted coal preparation 

plant or coal refuse disposal area that is not 

located within a permitted area of a mine. A 

permittee shall provide the performance 

security not later than one year after the 

effective date of this amendment for a 

permitted coal preparation plant or coal 

refuse disposal area that is in existence on 

the effective date of this amendment and that 

is not located within a permitted area of a 

mine. 

(D) A permittee’s liability under the 

performance security shall be limited to the 

obligations established under the permit, 

which include completion of the reclamation 

plan in order to make the land capable of 

supporting the postmining land use that was 

approved in the permit. The period of 

liability under the performance security shall 

be for the duration of the coal mining and 

reclamation operation and for a period 

coincident with the operator’s responsibility 


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for revegetation requirements under section 

1513.16 of the Revised Code. 

(E) The amount of the estimated cost of 

reclamation determined under division (B) of 

this section and the amount of a permittee’s 

performance security provided in accordance 

with division (C)(1) of this section may be 

adjusted by the chief as the land that is 

affected by mining increases or decreases or 

if the cost of reclamation increases or 

decreases. If the performance security was 

provided in accordance with division (C)(2) 

of this section and the chief has issued a 

cessation order under division (D)(2) of 

section 1513.02 of the Revised Code for 

failure to abate a violation of the 

contemporaneous reclamation requirement 

under division (A)(15) of section 1513.16 of 

the Revised Code, the chief may require the 

permittee to increase the amount of 

performance security from twenty-five 

hundred dollars per acre of land to five 

thousand dollars per acre of land. 

The chief shall notify the permittee, each 

surety, and any person who has a property 

interest in the performance security and who 

has requested to be notified of any proposed 

adjustment to the performance security. The 

permittee may request an informal 

conference with the chief concerning the 

proposed adjustment, and the chief shall 

provide such an informal conference. 

If the chief increases the amount of 

performance security under this division, the 

permittee shall provide additional 

performance security in an amount 

determined by the chief. If the chief 

decreases the amount of performance 

security under this division, the chief shall 

determine the amount of the reduction of the 

performance security and send written notice 

of the amount of reduction to the permittee. 

The permittee may reduce the amount of the 

performance security in the amount 

determined by the chief. 

(F) A permittee may request a reduction in 

the amount of the performance security by 

submitting to the chief documentation 

proving that the amount of the performance 

security provided by the permittee exceeds 

the estimated cost of reclamation if the 

reclamation would have to be performed by 

the division in the event of forfeiture of the 

performance security. The chief shall 

examine the documentation and determine 

whether the permittee’s performance security 

exceeds the estimated cost of reclamation. If 

the chief determines that the performance 

security exceeds that estimated cost, the chief 

shall determine the amount of the reduction 

of the performance security and send written 

notice of the amount to the permittee. The 

permittee may reduce the amount of the 

performance security in the amount 

determined by the chief. Adjustments in the 

amount of performance security under this 

division shall not be considered release of 

performance security and are not subject to 

section 1513.16 of the Revised Code. 

(G) If the performance security is a bond, 

it shall be executed by the operator and a 

corporate surety licensed to do business in 

this state. If the performance security is a 

cash deposit or negotiable certificates of 

deposit of a bank or savings and loan 

association, the bank or savings and loan 

association shall be licensed and operating in 

this state. The cash deposit or market value 

of the securities shall be equal to or greater 

than the amount of the performance security 

required under this section. The chief shall 

review any documents pertaining to the 

performance security and approve or 

disapprove the documents. The chief shall 

notify the applicant of the chief’s 

determination. 

(H) If the performance security is a bond, 

the chief may accept the bond of the 

applicant itself without separate surety when 

the applicant demonstrates to the satisfaction 

of the chief the existence of a suitable agent 

to receive service of process and a history of 

financial solvency and continuous operation 

sufficient for authorization to self-insure or 

bond the amount. 

(I) Performance security provided under 

this section may be held in trust, provided 

that the state is the conditional beneficiary of 

the trust and the custodian of the 

performance security held in trust is a bank, 

trust company, or other financial institution 

that is licensed and operating in this state. 

The chief shall review the trust document 

and approve or disapprove the document. 

The chief shall notify the applicant of the 

chief’s determination. 

(J) If a surety, bank, savings and loan 

association, trust company, or other financial 

institution that holds the performance 

security required under this section becomes 

insolvent, the permittee shall notify the chief 

of the insolvency, and the chief shall order 

the permittee to submit a plan for 

replacement performance security within 

thirty days after receipt of notice from the 

chief. If the permittee provided performance 

security in accordance with division (C)(1) of 

this section, the permittee shall provide the 

replacement performance security within 

ninety days after receipt of notice from the 

chief. If the permittee provided performance 

security in accordance with division (C)(2) of 

this section, the permittee shall provide the 

replacement performance security within one 

year after receipt of notice from the chief, 

and, for a period of one year after the 

permittee’s receipt of notice from the chief or 

until the permittee provides the replacement 

performance security, whichever occurs first, 

money in the reclamation forfeiture fund 

shall be the permittee’s replacement 

performance security in an amount not to 

exceed the estimated cost of reclamation as 

determined by the chief. 

(K) A permittee’s responsibility for 

repairing material damage and replacement 

of water supply resulting from subsidence 

may be satisfied by liability insurance 

required under this chapter in lieu of the 

permittee’s performance security if the 

liability insurance policy contains terms and 

conditions that specifically provide coverage 

for repairing material damage and 

replacement of water supply resulting from 

subsidence. 

(L) If the performance security provided in 

accordance with this section exceeds the 

estimated cost of reclamation, the chief may 

authorize the amount of the performance 

security that exceeds the estimated cost of 

reclamation together with any interest or 

other earnings on the performance security to 

be paid to the permittee. 

In its submittal, Ohio summarized the 

amendments at ORC 1513.08 as follows. 

Ohio stated that ORC 1513.08(B) 

requires the Chief of DMRM to 

determine the cost of reclamation, on a 

case by case basis, for all permit 

applications submitted. The cost of such 

reclamation shall be determined as if 

forfeiture of the performance security 

had occurred and DMRM is required to 

perform the reclamation. This 

determination shall be a basis for the 

amount of performance security, and 

shall be made subsequent to application 

approval, but prior to permit issuance. 

DMRM notifies the applicant via 

certified mail of the cost of performance 

security. Ohio stated that the applicant 

then responds and indicates the method 

of providing performance security at 

ORC 1513.08(C): 

(C)(1) Full cost, incrementally, under the 

initial permit term, or 

(C)(2) $2,500/acre on land under initial 

permit term. 

If choosing option (C)(2), the company 

will pay additional tax into the bond 

pool in the amount provided by ORC 

5749.02(A)(8). 

Ohio stated that if performance 

security is forfeited, the bond pool may 

be used to supplement the $2,500/acre 

flat bond rate up to the Chief’s 

determination of cost pursuant to 

ORC1513.08(B). Only applicants 

holding permits in Ohio for at least 5 

years have option (C)(2). 

The minimum performance security 

shall be $10,000 for any one permit. 

Existing (permitted) coal prep plants/ 

refuse disposal facilities not within a 

permit of a mine must provide full cost 

performance security within one year of 

the effective date of the law. 

Ohio stated that under ORC 

1513.08(D), performance security 

liability is limited to obligations 

established under the permit. 

Ohio stated that under ORC 

1513.08(E), the Chief’s estimated cost of 

reclamation and amount of performance 

security may be adjusted by DMRM 

based upon cost increases/decreases. 

Operators choosing the flat rate/bond 

pool option may have the bond rate 

increased to $5,000/acre if a failure to 

abate cession order is issued due to noncontemporaneous reclamation. 

Ohio stated that performance security 

adjustments require notification to 

permittee, surety and any person who 

has a property interest in the 

performance security upon request. A 

permittee may request an informal 

conference regarding a proposed rate 

adjustment. 

Ohio stated that ORC 1513.08(F), 

provides for a permittee to request 

reduction in performance security based 

upon documentation proving actual cost 


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of reclamation to the Division is less 

than the amount posted. 

Ohio stated that under ORC 1513.08 

(G), if performance security is issued in 

the form of a bond, the surety must be 

licensed to conduct business in Ohio. If 

the performance security is cash deposit 

or a certificate of deposit of a bank or 

savings and loan association, that 

business shall be licensed and operating 

in Ohio. Ohio further stated that the 

Chief is required to review performance 

security documents and approve of their 

use. 

Ohio stated that ORC 1513.08(I) 

provides criteria for performance 

security held in trust. The Chief must 

review and approve trust documents. 

Ohio stated that ORC 1513.08 (J) 

provides the following procedures for 

holder of performance security 

insolvency: Permittee notification to 

DMRM; Plan for replacement of 

performance; security; Replacement of 

full cost performance security in 90 

days; Replacement of flat rate 

performance security in one year. 

Ohio stated that ORC 1513.08(K) 

provides that subsidence damages and 

replacement of subsidence damaged 

water supplies may be satisfied by 

liability insurance in lieu of 

performance security. Such insurance 

specifically must address such damages. 

Ohio stated that ORC 1513.08(L) 

provides that performance security 

exceeding the cost of reclamation may 

be returned to the operator along with 

interest or other earnings. 

9. ORC 1513.081 DMRM Priority Lien 

This provision is new and provides as 

follows: 

Sec. 1513.081. (A) If an operator becomes 

insolvent, the division of mineral resources 

management shall have a priority lien in 

front of all other interested creditors against 

the assets of that operator for the amount of 

any reclamation that is required as a result 

of the operator’s mining activities. The chief 

of the division of mineral resources 

management shall file a statement in the 

office of the county recorder of each county 

in which the mined land lies of the estimated 

cost to reclaim the land. The estimated cost 

to reclaim the land shall include the direct 

and indirect costs of the development, 

design, construction, management, and 

administration of the reclamation. The 

statement shall constitute a lien on the assets 

of the operator as of the date of the filing. The 

lien shall continue in force so long as any 

portion of the lien remains unpaid or until 

the chief issues a certificate of release of the 

lien. If the chief issues a certificate of release 

of the lien, the chief shall file the certificate 

of release in the office of each applicable 

county recorder. 

(B) The chief promptly shall issue a 

certificate of release of a lien under any of 

the following circumstances: 

(1) Upon the repayment in full of the 

money that is necessary to complete the 

reclamation; 

(2) Upon the transfer of an existing permit 

that includes the areas of the operation for 

which reclamation was not completed to a 

different operator; 

(3) Any other circumstance that the chief 

determines to be in the best interests of the 

state. 

(C) The chief may modify the amount of a 

lien under this section. If the chief modifies 

a lien, the chief shall file a statement in the 

office of the county recorder of each 

applicable county of the new amount of the 

lien. 

(D) The chief may authorize an agent to 

hold a certificate of release in escrow for a 

period not to exceed one hundred eighty 

days for the purpose of facilitating the 

transfer of unreclaimed mine land. 

(E) All money from the collection of liens 

under this section shall be deposited in the 

state treasury to the credit of the reclamation 

forfeiture fund created in section 1513.18 of 

the Revised Code. 

In its submittal, Ohio stated that ORC 

1513.081(A) provides for DMRM’s 

priority lien ahead of other creditors in 

event of operator insolvency. Lien can 

be used to recover the cost of 

reclamation including all associated 

administrative costs. Lien must be filed 

by DMRM in the appropriate county 

recorder’s office. Ohio stated that 

subsection (B) provides for the release of 

a filed lien and/or adjustment. 

10. ORC 1513.16(F)(8)(a) Alternative 

Financial Security (AFS) 

This provision is new and provides as 

follows: 

(8)(a) Except as provided in division 

(F)(8)(c) of this section, if the chief 

determines that a permittee is responsible for 

mine drainage that requires water treatment 

after reclamation is completed under the 

terms of the permit or that a permittee must 

provide an alternative water supply after 

reclamation is completed under the terms of 

the permit, the permittee shall provide 

alternative financial security in an amount 

determined by the chief prior to the release 

of the remaining portion of performance 

security under division (F)(3)(c) of this 

section. The alternative financial security 

shall be in an amount that is equal to or 

greater than the present value of the 

estimated cost over time to develop and 

implement mine drainage plans and provide 

water treatment or in an amount that is 

necessary to provide and maintain an 

alternative water supply, as applicable. The 

alternative financial security shall include a 

contract, trust, or other agreement or 

mechanism that is enforceable under law to 

provide long-term water treatment or a longterm alternative water supply, or both. 

(b) The chief shall adopt rules in 

accordance with Chapter 119 of the Revised 

Code that are necessary for the 

administration of division (F)(8)(a) of this 

section. 

(c) Division (F)(8)(a) of this section does 

not apply while the chief’s determination of 

a permittee’s responsibility under that 

division is the subject of a good faith 

administrative or judicial appeal contesting 

the validity of the determination. If after 

completion of the appeal there is an 

enforceable administrative or judicial 

decision affirming or modifying the chief’s 

determination, the permittee shall provide 

the alternative financial security in an 

amount established in the administrative or 

judicial decision. 

In its submittal, Ohio stated that ORC 

1513.16(F)(8) provides provisions for an 

Alternative Financial Security (AFS) to 

address mine drainage treatment or 

alternative water supply replacement 

after reclamation is completed. An AFS 

is to be provided prior to release of 

remaining bond in the form of a 

contract, trust or other agreements 

enforceable under law to provide longterm water treatment or alternative 

supply. Subsection (b) requires the 

Chief to adopt new rules to administer 

the AFS. 

11. ORC 1513.16(F)(9) Termination of 

Jurisdiction 

This provision is new and provides as 

follows: 

(9) Final release of the performance 

security in accordance with division (F)(3)(c) 

of this section terminates the jurisdiction of 

the chief under this chapter over the 

reclaimed site of a surface coal mining and 

reclamation operation or applicable portion 

of an operation. However, the chief shall 

reassert jurisdiction over such a site if the 

release was based on fraud, collusion, or 

misrepresentation of a material fact and the 

chief, in writing, demonstrates evidence of 

the fraud, collusion, or misrepresentation. 

Any person with an interest that is or may 

be adversely affected by the chief’s 

determination may appeal the determination 

to the reclamation commission in accordance 

with section 1513.13 of the Revised Code. 

In its submittal, Ohio stated that this 

provision provides for the final release 

of performance security and terminates 

the Division’s jurisdiction unless certain 

specific issues are subsequently found 

to be present. 

12. ORC 1513.171 Coal Reclamation 

Tax Credit 

This provision is new, and provides 

as follows: 

Sec. 1513.171. (A) For the purpose of 

claiming a credit under section 5749.11 of 

the Revised Code, an operator with a valid 

permit issued under section 1513.07 of the 

Revised Code may submit an application to 

the chief of the division of mineral resources 

management to perform reclamation on land 

or water resources that are not within the 

area of the applicant’s permit and that have 

been adversely affected by past coal mining 

for which the performance security was 


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forfeited. The chief shall provide the 

application form. The application shall 

include all of the following: 

(1) The operator’s name, address, and 

telephone number; 

(2) The valid permit number of the 

operator; 

(3) An identification of the area or areas to 

be reclaimed; 

(4) An identification of the owner of the 

land; 

(5) A reclamation plan that describes the 

work to be done to reclaim the land or water 

resources. The plan shall include a 

description of how the plan is consistent 

with local physical, environmental, and 

climatological conditions and the measures 

to be taken during the reclamation to ensure 

the protection of water systems. 

(6) An estimate of the total cost of the 

reclamation; 

(7) An estimate of the timetables for 

accomplishing the reclamation; 

(8) Any other requirements that the chief 

prescribes by rule. 

The chief shall approve, disapprove, or 

approve with modifications the application 

concerning the proposed reclamation work. If 

the chief approves the application, the 

applicant may commence reclamation in 

accordance with the timetables included in 

the application. Upon the completion of the 

reclamation to the satisfaction of the chief, 

the chief shall issue a numbered reclamation 

tax credit certificate showing the amount of 

the credit and the identity of the recipient. 

Prior to the close of the fiscal quarter in 

which the tax credit certificate is issued, the 

chief shall certify to the tax commissioner the 

amount of the credit and the identity of the 

recipient. 

(B) The chief shall determine the amount 

of the credit in accordance with this section 

and rules adopted under it. The amount of 

the credit shall be equal to the cost that the 

division of mineral resources management 

would have expended from the reclamation 

forfeiture fund created in section 1513.18 of 

the Revised Code to complete the 

reclamation. 

(C) The chief shall adopt rules in 

accordance with Chapter 119. of the Revised 

Code that are necessary to administer this 

section. The rules shall establish all of the 

following: 

(1) A procedure that the chief shall use to 

determine the amount of the credit issued 

under this section; 

(2) A procedure by which the chief may 

obtain consent of the owners of land or water 

resources to allow reclamation work for 

purposes of this section; 

(3) A procedure for delivery of notice to the 

owners of land or water resources on which 

the reclamation work is to be performed. The 

rules shall require the notice to include the 

date on which the reclamation work is 

scheduled to begin. 

In its submittal, Ohio stated that this 

provision establishes procedures for 

claiming tax credit pursuant to section 

5749.11 of the ORC. A coal mine 

operator may submit an application to 

reclaim another mined area with 

forfeited bond. Once reclamation is 

completed, the Chief shall issue 

numbered tax credits in the amount of 

the credit. Under subsection (B), the 

Chief shall determine the amount of the 

credit, equivalent to the cost of 

reclamation to the division if the work 

had been completed by the state. 

Subsection (C) requires the Chief to 

adopt rules to administer and establish 

procedures to address: Amount of tax 

credit; Consent of landowner or owner 

of the water resources to conduct 

reclamation; and Notification to 

landowner of reclamation work and 

schedule. 

13. ORC 1513.18 Reclamation 

Forfeiture Fund 

Subsection (B) is amended in the first 

sentence by deleting the phrase ‘‘any 

moneys transferred to it under this 

division from the unreclaimed lands 

fund created in section 1513.30.’’ In 

place of that deleted language, the 

following phrase is added: ‘‘All money 

from the collection of liens under 

section 1513.081.’’ The first sentence in 

subsection (B) is also amended by 

identifying that funds derived from 

certain fines will be added to the 

reclamation forfeiture fund. Language 

concerning the Chief’s management of 

the fund is deleted. Language 

concerning the transfer of funds from 

the unreclaimed lands fund is deleted. 

Language concerning use of money from 

the reclamation forfeiture fund to cover 

administrative expenses has been 

added. As amended, subsection (B) 

provides as follows: 

(B) The fund also shall consist of all money 

from the collection of liens under section 

1513.081 of the Revised Code, any moneys 

transferred to it under section 1513.181 of the 

Revised Code from the coal mining and 

reclamation reserve fund created in that 

section, fines collected under division (E) of 

section 1513.02 and section 1513.99 of the 

Revised Code, fines collected for a violation 

of section 2921.31 of the Revised Code that, 

prior to July 1, 1996, would have been a 

violation of division (G) of section 1513.17 of 

the Revised Code as it existed prior to that 

date, and moneys collected and credited to 

it pursuant to section 5749.02 of the Revised 

Code. Disbursements from the fund shall be 

made by the chief in accordance with 

division (D) of this section for the purpose of 

reclaiming areas that an operator has affected 

by mining and failed to reclaim under a coal 

mining and reclamation permit issued under 

this chapter or under a surface mining permit 

issued under Chapter 1514. of the Revised 

Code. 

The chief may expend moneys from the 

fund to pay necessary administrative costs, 

including engineering and design services, 

incurred by the division of mineral resources 

management in reclaiming these areas. The 

chief also may expend moneys from the fund 

to pay necessary administrative costs of the 

reclamation forfeiture fund advisory board 

created in section 1513.182 of the Revised 

Code as authorized by the board under that 

section. Expenditures from the fund to pay 

such administrative costs need not be made 

under contract. 

Subsection (C) is amended by adding 

the phrase ‘‘or trustee, if the 

performance security is held in trust,’’

immediately following the words ‘‘or a 

contractor hired by the surety.’’

Subsection (D) is amended by 

amending the existing language, 

codifying the existing language as 

paragraph (1), and by adding three new 

paragraphs. As amended, subsection (D) 

provides as follows: 

(D)(1) The chief shall expend money 

credited to the reclamation forfeiture fund 

from the forfeiture of the performance 

security applicable to an area of land or 

under section 1513.181 of the Revised Code 

the amount of money to pay for the cost of 

the reclamation of the land. 

(2) If the performance security for the area 

of land was provided under division (C)(1) of 

section 1513.08 of the Revised Code, the 

chief shall use the money from the forfeited 

performance security to complete the 

reclamation that the operator failed to do 

under the operator’s applicable coal mining 

and reclamation permit issued under this 

chapter. 

(3) If the performance security for the area 

of land was provided under division (C)(2) of 

section 1513.08 of the Revised Code, the 

chief shall use the money from the forfeited 

performance security to complete the 

reclamation that the operator failed to do 

under the operator’s applicable coal mining 

and reclamation permit issued under this 

chapter. If the money credited to the 

reclamation forfeiture fund from the 

forfeiture of the performance security 

provided under division (C)(2) of section 

1513.08 of the Revised Code is not sufficient 

to complete the reclamation, the chief shall 

notify the reclamation forfeiture fund 

advisory board of the amount of the 

insufficiency. The chief may expend money 

credited to the reclamation forfeiture fund 

under section 5749.02 of the Revised Code or 

transferred to the fund under section 

1513.181 of the Revised Code to complete the 

reclamation. The chief shall not expend 

money from the fund in an amount that 

exceeds the difference between the amount of 

the performance security provided under 

division (C)(2) of section 1513.08 of the 

Revised Code and the estimated cost of 

reclamation as determined by the chief under 

divisions (B) and (E) of that section. 

(4) Money from the reclamation forfeiture 

fund shall not be used for reclamation of land 

or water resources affected by material 

damage from subsidence, mine drainage that 

requires extended water treatment after 

reclamation is completed under the terms of 

the permit, or coal preparation plants or coal 

refuse disposal areas not located within a 

permitted area of a mine if performance 

security for the area of land was provided 

under division (C)(2) of section 1513.08 of 

the Revised Code. 


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Subsection (F) is amended in the first 

sentence by adding the following 

proviso to the beginning of the sentence: 

‘‘Except as otherwise provided in 

division (H) of this section.’’

New subsection (H) is added to 

provide as follows: 

(H) All investment earnings of the fund 

shall be credited to the fund and shall be 

used only for the reclamation of land for 

which performance security was provided 

under division (C)(2) of section 1513.08 of 

the Revised Code. 

14. ORC 1513.181 Coal Mining 

Administration and Reclamation 

Reserve Fund 

This provision is amended by deleting 

from the first paragraph, third sentence, 

the following phrase: ‘‘Or by surface 

mining under a surface mining permit 

issued under Chapter 1514 of the 

Revised Code.’’ Also, the second 

paragraph, concerning the identification 

of fines collected that would be added 

to the coal mining administration and 

reclamation reserve fund is deleted. 

That deleted paragraph is replaced by 

the following new paragraph: 

If the director of natural resources 

determines it to be necessary, the director 

may request the controlling board to transfer 

an amount of money from the coal mining 

administration and reclamation reserve fund 

to the unreclaimed lands fund created in 

section 1513.30 of the Revised Code. 

15. ORC 1513.182 Reclamation 

Forfeiture Fund Advisory Board 

This provision is new, and provides 

as follows: 

Sec. 1513.182. (A) There is hereby created 

the reclamation forfeiture fund advisory 

board consisting of the director of natural 

resources, the director of insurance, and 

seven members appointed by the governor 

with the advice and consent of the senate. Of 

the governor’s appointments, one shall be a 

certified public accountant, one shall be a 

registered professional engineer with 

experience in reclamation of mined land, two 

shall represent agriculture, agronomy, or 

forestry, one shall be a representative of 

operators of coal mining operations that have 

valid permits issued under this chapter and 

that have provided performance security 

under division (C)(1) of section 1513.08 of 

the Revised Code, one shall be a 

representative of operators of coal mining 

operations that have valid permits issued 

under this chapter and that have provided 

performance security under division (C)(2) of 

section 1513.08 of the Revised Code, and one 

shall be a representative of the public. 

Of the original members appointed by the 

governor, two shall serve an initial term of 

two years, three an initial term of three years, 

and two an initial term of four years. 

Thereafter, terms of appointed members shall 

be for four years, with each term ending on 

the same date as the original date of 

appointment. An appointed member shall 

hold office from the date of appointment 

until the end of the term for which the 

member was appointed. Vacancies shall be 

filled in the same manner as original 

appointments. A member appointed to fill a 

vacancy occurring prior to the expiration of 

the term for which the member’s predecessor 

was appointed shall hold office for the 

remainder of that term. A member shall 

continue in office subsequent to the 

expiration date of the member’s term until 

the member’s successor takes office or until 

a period of sixty days has elapsed, whichever 

occurs first. The governor may remove an 

appointed member of the board for 

misfeasance, nonfeasance, or malfeasance. 

The directors of natural resources and 

insurance shall not receive compensation for 

serving on the board, but shall be reimbursed 

for the actual and necessary expenses 

incurred in the performance of their duties as 

members of the board. The members 

appointed by the governor shall receive per 

diem compensation fixed pursuant to 

division (J) of section 124.15 of the Revised 

Code and reimbursement for the actual and 

necessary expenses incurred in the 

performance of their duties. 

(B) The board annually shall elect from 

among its members a chairperson, a vicechairperson, and a secretary to record the 

board’s meetings. 

(C) The board shall hold meetings as often 

as necessary as the chairperson or a majority 

of the members determines. 

(D) The board shall establish procedures 

for conducting meetings and for the election 

of its chairperson, vice-chairperson, and 

secretary. 

(E) The board shall do all of the following: 

(1) Review the deposits into and 

expenditures from the reclamation forfeiture 

fund created in section 1513.18 of the 

Revised Code; 

(2) Retain periodically a qualified actuary 

to perform an actuarial study of the 

reclamation forfeiture fund; 

(3) Based on an actuarial study and as 

determined necessary by the board, adopt 

rules in accordance with Chapter 119. of the 

Revised Code to adjust the rate of the tax 

levied under division (A)(8) of section 

5749.02 of the Revised Code and the balance 

of the reclamation forfeiture fund that 

pertains to that rate; 

(4) Evaluate any rules, procedures, and 

methods for estimating the cost of 

reclamation for purposes of determining the 

amount of performance security that is 

required under section 1513.08 of the 

Revised Code; the collection of forfeited 

performance security; payments to the 

reclamation forfeiture fund; reclamation of 

sites for which operators have forfeited the 

performance security; and the compliance of 

operators with their reclamation plans; 

(5) Provide a forum for discussion of issues 

related to the reclamation forfeiture fund and 

the performance security that is required 

under section 1513.08 of the Revised Code; 

(6) Submit a report biennially to the 

governor that describes the financial status of 

the reclamation forfeiture fund and the 

adequacy of the amount of money in the fund 

to accomplish the purposes of the fund and 

that may discuss any matter related to the 

performance security that is required under 

section 1513.08 of the Revised Code; 

(7) Make recommendations to the governor, 

if necessary, of alternative methods of 

providing money for or using money in the 

reclamation forfeiture fund and issues related 

to the reclamation of land or water resources 

that have been adversely affected by past coal 

mining for which the performance security 

was forfeited; 

(8) Adopt rules in accordance with Chapter 

119. of the Revised Code that are necessary 

to administer this section. 

In its submittal, Ohio stated that ORC 

1513.182 creates the reclamation 

forfeiture fund advisory board, 

establishes specific terms of 

appointments and per diem 

compensation, and establishes the 

duties of the board. 

16. ORC 1513.29 Council on 

Unreclaimed Strip Mined Lands 

This existing provision is amended in 

the third paragraph by deleting the 

requirement to hold ‘‘at least four 

regular quarterly meetings each year,’’

and amending the provision to 

authorize meetings ‘‘as necessary.’’ The 

fourth paragraph is amended by deleting 

reference to the ‘‘strip mining 

reclamation fund,’’ and in its place, 

adding reference to the ‘‘reclamation 

forfeiture fund created in section 

1513.18 of the Revised Code.’’ The fifth 

paragraph is amended by deleting the 

phrase ‘‘of the division of mineral 

resources management.’’

17. ORC 1513.30 Unreclaimed Strip 

Mined Lands Fund 

This provision is amended by deleting 

the following requirement to provide 

public notice: 

At least two weeks before any meeting of 

the council on unreclaimed strip mined 

lands at which the chief will submit a project 

proposal, a project area will be selected, or 

the boundaries of a project area will be 

determined, the chief shall mail notice by 

first class mail to the board of county 

commissioners of the county and the board 

of township trustees of the township in 

which the proposed project lies and the chief 

executive and the legislative authority of 

each municipal corporation within the 

proposed project area. The chief also shall 

give reasonable notice to the news media in 

the county where the proposed project lies. 

ORC 1513.30 is also amended by 

deleting a paragraph that authorized the 

controlling board to transfer excess 

funds from the oil and gas well fund. 

ORC 1513.30 is amended by adding a 

new paragraph to authorize the 

controlling board to transfer money 

from the fund to the coal mining 

administration and reclamation reserve 

fund. The new paragraph provides as 

follows: 


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If the director of natural resources 

determines it to be necessary, the director 

may request the controlling board to transfer 

an amount of money from the fund to the 

coal mining administration and reclamation 

reserve fund created in section 1513.181 of 

the Revised Code. 

18. ORC 1513.37 Abandoned Mine 

Reclamation Fund 

This provision is amended at 

subsection (C)(3) by adding the words 

‘‘performance security, or other form of 

financial guarantee’’ in three places 

following the word ‘‘bond.’’

19. ORC 1513.371 Mined Land Set 

Aside Fund 

This provision is new and provides as 

follows: 

There is hereby created in the state 

treasury the mined land set aside fund 

consisting of grants made by the United 

States secretary of the interior from the 

federal abandoned mine reclamation fund 

pursuant to section 402 of the ‘‘Surface 

Mining Control and Reclamation Act of 

1977,’’ 91 Stat. 445, 30 U.S.C. 1232. The chief 

of the division of mineral resources 

management shall administer the fund. 

Money in the fund shall be used solely for 

the purposes specified in divisions (B)(1) to 

(4) of section 1513.37 of the Revised Code. 

All investment earnings of the fund shall be 

credited to the fund. 

20. ORC 5749.02 Excise Tax on 

Severance of Natural Resources 

Subsection (A) is amended at 

paragraph (A)(1) by increasing the 

severance tax levied on coal from 

‘‘Seven’’ cents to ‘‘Ten’’ cents. 

Subsection (A) is further amended by 

adding new paragraphs (8) and (9). New 

paragraph (A)(8) levies a tax of 14 cents 

per ton of coal to fund the bond pool, 

and paragraph (A)(9) levies a tax of one 

and two tenths cents per ton of coal. 

New paragraphs (A)(8) and (A)(9) 

provide as follows: 

(8) Except as otherwise provided in this 

division or in rules adopted by the 

reclamation forfeiture fund advisory board 

under section 1513.182 of the Revised Code, 

an additional fourteen cents per ton of coal 

produced from an area under a coal mining 

and reclamation permit issued under Chapter 

1513. of the Revised Code for which the 

performance security is provided under 

division (C)(2) of section 1513.08 of the 

Revised Code. If at the end of a fiscal 

biennium the balance of the reclamation 

forfeiture fund created in section 1513.18 of 

the Revised Code is equal to or greater than 

ten million dollars, the rate levied shall be 

twelve cents per ton. If at the end of a fiscal 

biennium the balance of the fund is at least 

five million dollars, but less than ten million 

dollars, the rate levied shall be fourteen cents 

per ton. If at the end of a fiscal biennium the 

balance of the fund is less than five million 

dollars, the rate levied shall be sixteen cents 

per ton. Not later than thirty days after the 

close of a fiscal biennium, the chief of the 

division of mineral resources management 

shall certify to the tax commissioner the 

amount of the balance of the reclamation 

forfeiture fund as of the close of the fiscal 

biennium. Any necessary adjustment of the 

rate levied shall take effect on the first day 

of the following January and shall remain in 

effect during the calendar biennium that 

begins on that date. 

(9) An additional one and two-tenths cents 

per ton of coal mined by surface mining 

methods. 

In its submittal, Ohio stated that ORC 

5749.02(A) has been amended by 

increasing the coal severance tax from 

seven cents to 10 cents per ton. New 

paragraph (8) provides that if 

performance security is provided by 

way of the bond pool and $2,500 flat 

rate bond, then an additional 14 cents 

per ton is required by those operations. 

If the forfeiture fund balance exceeds 

$10 million at the end of a fiscal 

biennium, the rate is reduced to 12 

cents per ton. If the balance is greater 

than $5 million but less than $10 

million, 14 cents per ton is required. If 

the balance is less than $5 million, 16 

cents per ton is required. 

Ohio stated that paragraph (9) 

provides for an additional one and two 

tenths cents per ton at all surface coal 

mines. 

Subsection (B) is amended by 

changing the allocation values of the 

moneys received under the taxes levied 

under ORC 5749.02(A)(1), specifying 

that all of the moneys received under 

paragraph (A)(8) will be credited to the 

reclamation forfeiture fund, and 

specifying that all of the moneys 

received under paragraph (A)(9) will be 

credited to the unreclaimed lands fund. 

Paragraph (C), concerning a tax levied 

for the purpose of crediting moneys to 

the reclamation forfeiture fund is 

deleted. Paragraph (D) is amended by 

deleting the first paragraph (including 

its designation as (D)) concerning a tax 

levied for the purpose of crediting 

moneys to the reclamation forfeiture 

fund, and revising the second paragraph 

by adding language concerning 

adjustments to be made to the tax levied 

under paragraph (A)(8) based upon the 

balance of the reclamation forfeiture 

fund at the close of any fiscal year. As 

amended, ORC 5749.02(B) provides as 

follows: 

(B) Of the moneys received by the treasurer 

of state from the tax levied in division (A)(1) 

of this section, four and seventy-sixhundredths per cent shall be credited to the 

geological mapping fund created in section 

1505.09 of the Revised Code, eighty and 

ninety-five-hundredths per cent shall be 

credited to the coal mining administration 

and reclamation reserve fund created in 

section 1513.181 of the Revised Code, and 

fourteen and twenty-nine-hundredths per 

cent shall be credited to the unreclaimed 

lands fund created in section 1513.30 of the 

Revised Code. 

Fifteen per cent of the moneys received by 

the treasurer of state from the tax levied in 

division (A)(2) of this section shall be 

credited to the geological mapping fund and 

the remainder shall be credited to the 

unreclaimed lands fund. 

Of the moneys received by the treasurer of 

state from the tax levied in divisions (A)(3) 

and (4) of this section, seven and five-tenths 

per cent shall be credited to the geological 

mapping fund, forty-two and five-tenths per 

cent shall be credited to the unreclaimed 

lands fund, and the remainder shall be 

credited to the surface mining fund created 

in section 1514.06 of the Revised Code. 

Of the moneys received by the treasurer of 

state from the tax levied in divisions (A)(5) 

and (6) of this section, ninety per cent shall 

be credited to the oil and gas well fund 

created in section 1509.02 of the Revised 

Code and ten per cent shall be credited to the 

geological mapping fund. All of the moneys 

received by the treasurer of state from the tax 

levied in division (A)(7) of this section shall 

be credited to the surface mining fund. 

All of the moneys received by the treasurer 

of state from the tax levied in division (A)(8) 

of this section shall be credited to the 

reclamation forfeiture fund. 

All of the moneys received by the treasurer 

of state from the tax levied in division (A)(9) 

of this section shall be credited to the 

unreclaimed lands fund. 

When, at the close of any fiscal year, the 

chief finds that the balance of the 

reclamation forfeiture fund, plus estimated 

transfers to it from the coal mining 

administration and reclamation reserve fund 

under section 1513.181 of the Revised Code, 

plus the estimated revenues from the tax 

levied by division (A)(8) of this section for 

the remainder of the calendar year that 

includes the close of the fiscal year, are 

sufficient to complete the reclamation of 

lands for which the performance security has 

been provided under division (C)(2) of 

section 1513.08 of the Revised Code, the 

purposes for which the tax under division 

(A)(8) of this section is levied shall be 

deemed accomplished at the end of that 

calendar year. The chief, within thirty days 

after the close of the fiscal year, shall certify 

those findings to the tax commissioner, and 

the tax levied under division (A)(8) of this 

section shall cease to be imposed after the 

last day of that calendar year on coal 

produced under a coal mining and 

reclamation permit issued under Chapter 

1513. of the Revised Code if the permittee 

has made tax payments under division (A)(8) 

of this section during each of the preceding 

five full calendar years. Not later than thirty 

days after the close of a fiscal year, the chief 

shall certify to the tax commissioner the 

identity of any permittees who accordingly 

no longer are required to pay the tax levied 

under division (A)(8) of this section. 

Ohio stated that subsection ORC 

5749.02(B) is amended to provide that 

the moneys received from the ten-cent 

tax per ton of coal tax levied in ORC 


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21184 Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Proposed Rules 

5749.02(A)(1) is allocated as follows: 

0.476 cents per ton to the geological 

mapping fund; 8.095 cents per ton to the 

coal mining administration fund; and 

1.429 cents per ton to the State AML 

fund. Ohio also stated that all of the 

moneys received from the 1.2 cents per 

ton of on coal tax levied in ORC 

5749.02(A)(9) is allocated to the State 

AML fund. 

Ohio stated that subsection ORC 

5749.02(C) is deleted to eliminate the 

tax levied at the rate of one cent per ton 

of coal, the moneys of which were 

allocated to reclaiming bond forfeiture 

lands. 

Ohio stated that subsection ORC 

5749.02(D) is amended to eliminate the 

one cent per ton of coal that was 

allocated to bond forfeited permits 

issued between April 10, 1972 and 

September 1, 1981. Subsection (D) also 

provides for cessation of the subsection 

(A)(8) tax (14 cents/ton) upon finding by 

Chief that funds in the reclamation 

forfeiture fund are adequate to address 

bond pool reclamation on a permit by 

permit basis; upon such finding 

operators listed as having provided 

adequate performance security shall no 

longer be required to pay the (A)(8) tax 

(14 cents/ton), provided such operators 

have made such payments during the 

preceding five years. 

21. ORC 5749.11 Nonrefundable 

Credit 

This provision is new, and provides 

for a nonrefundable credit against the 

taxes imposed under ORC 

5749.02(A)(8). This new provision 

provides as follows: 

Sec. 5749.11. (A) There is hereby allowed 

a nonrefundable credit against the taxes 

imposed under division (A)(8) of section 

5749.02 of the Revised Code for any severer 

to which a reclamation tax credit certificate 

is issued under section 1513.171 of the 

Revised Code. The credit shall be claimed in 

the amount shown on the certificate. The 

credit shall be claimed by deducting the 

amount of the credit from the amount of the 

first tax payment due under section 5749.06 

of the Revised Code after the certificate is 

issued. 

If the amount of the credit shown on a 

certificate exceeds the amount of the tax 

otherwise due with that first payment, the 

excess shall be claimed against the amount 

of tax otherwise due on succeeding payment 

dates until the entire credit amount has been 

deducted. The total amount of credit claimed 

against payments shall not exceed the total 

amount of credit shown on the certificate. 

(B) A severer claiming a credit under this 

section shall retain a reclamation tax credit 

certificate for not less than four years 

following the date of the last tax payment 

against which the credit allowed under that 

certificate was applied. Severers shall make 

tax credit certificates available for inspection 

by the tax commissioner upon the tax 

commissioner’s request. 

22. Section 3 of the Amendment 

Submittal Provides as Follows 

Section 3. It is the intent of the General 

Assembly to appropriate five million dollars 

for the reclamation of land affected by the 

surface mining of coal. Of that five million 

dollars, not more than fifty thousand dollars 

shall be used to study the management of the 

financial resources of the coal mining 

regulatory program of the Division of Mineral 

Resources Management in the Department of 

Natural Resources. The Chief of the Division 

of Mineral Resources Management, in 

consultation with a statewide association 

representing the coal mining industry and a 

statewide association representing 

environmental advocacy, shall develop an 

outline of the subjects for the study. The 

Chief shall select an objective third party that 

has knowledge in the management of 

finances to conduct the study. Upon 

completion of the study, the third party shall 

prepare a report of its findings and submit 

the report to the Director of [the Department 

of] Natural Resources. 

23. Section 6 of the Amendment 

Submittal Provides That Section 

5749.02 of the Revised Code as 

Amended by This Act Shall Take Effect 

on April 1, 2007 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the amendment 

satisfies the applicable program 

approval criteria of 30 CFR 732.15. If we 

approve the amendment, it will become 

part of the Ohio program. 

Written Comments 

Send your written comments to OSM 

at the address given above. Your written 

comments should be specific, pertain 

only to the issues proposed in this 

rulemaking, and include explanations in 

support of your recommendations. We 

will not consider or respond to your 

comments when developing the final 

rule if they are received after the close 

of the comment period (see DATES). We 

will make every attempt to log all 

comments into the administrative 

record, but comments delivered to an 

address other than the Appalachian 

Region office identified above may not 

be logged in. 

Electronic Comments 

Please submit Internet comments as 

an e-mail or Word file avoiding the use 

of special characters and any form of 

encryption. Please also include ‘‘Attn: 

SATS No. OH–252–FOR,’’ your name 

and return address in your Internet 

message. If you do not receive a 

confirmation that we have received your 

Internet message, contact the 

Appalachian Region office at: (614) 416–

2238 . 

Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 4 

p.m., local time, on May 15, 2007. We 

will arrange the location and time of the 

hearing with those persons requesting 

the hearing. If no one requests an 

opportunity to speak, we will not hold 

the hearing. To assist the transcriber and 

ensure an accurate record, we request, if 

possible, that each person who speaks at 

a public hearing provide us with a 

written copy of his or her comments. 

The public hearing will continue on the 

specified date until everyone scheduled 

to speak has been given an opportunity 

to be heard. If you are in the audience 

and have not been scheduled to speak 

and wish to do so, you will be allowed 

to speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. If you are 

disabled and need a special 

accommodation to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. 

Public Meeting 

If only one person requests an 

opportunity to speak, we may hold a 

public meeting rather than a public 

hearing. If you wish to meet with us to 

discuss the amendment, please request 

a meeting by contacting the person 

listed under FOR FURTHER INFORMATION

CONTACT. All such meetings are open to 

the public and, if possible, we will post 

notices of meetings at the locations 

listed under ADDRESSES. We will make 

a written summary of each meeting a 

part of the administrative record. 

IV. 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 regulations. 


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Federal Register / Vol. 72, No. 82 / Monday, April 30, 2007 / Proposed Rules 21185 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) 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, to the extent 

allowable 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 

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. 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 Federallyrecognized 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 a Federal 

program 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 

Section 702(d) of SMCRA (30 U.S.C. 

1292(d)) provides that a decision on a 

proposed State regulatory program 

provision does not constitute a major 

Federal action within the meaning of 

section 102(2)(C) of the National 

Environmental Policy Act (42 U.S.C. 

4332(2)(C)). A determination has been 

made that such decisions are 

categorically excluded from the NEPA 

process (516 DM 8.4.A). 

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 

that 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. 

Accordingly, this rule will ensure that 

existing requirements previously 

promulgated by OSM will be 

implemented by the State. In making the 

determination as to whether this rule 

would have a significant economic 

impact, the Department relied upon the 

data and assumptions for the 

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; 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, geographic 

regions, or Federal, State or local 

governmental agencies; 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 fact 

that the State submittal, which is the 

subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation was not considered a major 

rule. 

Unfunded Mandates 

This rule will not impose a cost of 

$100 million or more in any given year 

on any governmental entity or the 

private sector. 

List of Subjects in 30 CFR Part 935 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: March 21, 2007. 

H. Vann Weaver, 

Acting Regional Director Appalachian 

Region. 

[FR Doc. E7–8171 Filed 4–27–07; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 943 

[Docket No. TX–057–FOR] 

Texas Regulatory Program and 

Abandoned Mine Land Reclamation 

Plan 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Proposed rule; public comment 

period and opportunity for public 

hearing on proposed amendment. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are announcing receipt of a 

proposed amendment to the Texas 

regulatory program (Texas program) and 

the Texas abandoned mine land plan 

(Texas plan) under the Surface Mining 


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