[Federal Register Volume 72, Number 82 (Monday, April 30, 2007)]
[Proposed Rules]
[Pages 21176-21185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8171]


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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.

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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 rule-making 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:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#3354415a56545641735c405e41561d545c45"><span class="__cf_email__" data-cfemail="e681948f83818394a689958b9483c8818990">[email protected]</span></a>. Include OH-252-FOR in the 
subject line of the message;
    <bullet> 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.
    <bullet> 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: <a href="/cdn-cgi/l/email-protection#5136233834363423113e223c23347f363e27"><span class="__cf_email__" data-cfemail="bbdcc9d2dedcdec9fbd4c8d6c9de95dcd4cd">[email protected]</span></a>.
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: <a href="/cdn-cgi/l/email-protection#8becf9e2eeeceef9cbe4f8e6f9eea5ece4fd"><span class="__cf_email__" data-cfemail="f89f8a919d9f9d8ab8978b958a9dd69f978e">[email protected]</span></a>.

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 rule-
making 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.

[[Page 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 
re-numbering 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:

[[Page 21178]]

    (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

[[Page 21179]]

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 non-
contemporaneous 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

[[Page 21180]]

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 long-term 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 long-term 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

[[Page 21181]]

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.


[[Page 21182]]


    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 vice-chairperson, 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:


[[Page 21183]]


    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-six-
hundredths 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

[[Page 21184]]

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.

[[Page 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 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 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


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