[Federal Register Volume 77, Number 30 (Tuesday, February 14, 2012)]
[Proposed Rules]
[Pages 8185-8197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3424]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[SATS No. OH-252-FOR; Docket ID OSM 2011-0003]


Ohio Regulatory Program

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

ACTION: Proposed rule; reopening of the public comment period and 
opportunity for public hearing on the proposed amendment.

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SUMMARY: We 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) and reopening 
the public comment period. The comment period is being reopened to 
incorporate changes that Ohio made to its initial amendment submission 
of 2007 regarding Ohio's alternative bonding

[[Page 8186]]

system. We did not make a decision on that submission since Ohio 
planned to submit additional revisions in response to OSM's review of 
the submission. The comment period is being reopened to incorporate 
recent amendment submissions, which consist of changes in response to 
OSM's concerns and other changes that Ohio made at its own initiative. 
Taken together, the revised amendment includes legislative and 
regulatory actions regarding subjects such as bond program changes, AML 
provisions, program funding, permitting standards, valid existing 
rights, re-mining, blasting, and topsoil handling. It also includes two 
actuarial reports on Ohio's bonding program and letters to Ohio's 
Governor from the Reclamation Forfeiture Fund Advisory Board of Ohio 
with recommendations regarding these reports.
    This document gives the times and locations that the Ohio submittal 
is available for your inspection, the comment period during which you 
may submit written comments, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments until 4 p.m., local time March 
15, 2012. If requested, we will hold a public hearing on March 12, 
2012. We will accept requests to speak until 4 p.m., local time on 
February 29, 2012.

ADDRESSES: You may submit comments, identified by ``OH-252-FOR; Docket 
ID: OSM-2011-0003 by either of the following two methods:
    Federal eRulemaking Portal: www.regulations.gov. The proposed rule 
has been assigned Docket ID: OSM-2011-0003. If you would like to submit 
comments through the Federal eRulemaking Portal, go to 
www.regulations.gov and follow the instructions.
    Mail/Hand Delivery/Courier: Mr. Ben Owens, Acting Chief, Pittsburgh 
Field Division, Office of Surface Mining Reclamation and Enforcement, 
4605 Morse Rd., Room 102, Columbus, Ohio 43230.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
of this document.
    Docket: In addition to obtaining a copy of the submission letter at 
www.regulations.gov, information may also be obtained at the addresses 
listed below during normal business hours, Monday through Friday, 
excluding holidays. You may receive one free copy of the amendment by 
contacting OSM's Pittsburgh Field Division Office.

Ben Owens, Acting Chief, Pittsburgh Field Division, Office of Surface 
Mining Reclamation and Enforcement, 4605 Morse Rd., Room 102, Columbus, 
OH 43230, Telephone: (614) 416-2238, Email: <a href="/cdn-cgi/l/email-protection#20424f57454e53604f534d52450e474f56"><span class="__cf_email__" data-cfemail="096b667e6c677a49667a647b6c276e667f">[email protected]</span></a>.
Lanny Erdos, Chief, Division of Mineral Resources Management, Ohio 
Department of Natural Resources, 2045 Morse Rd., Building H-2, 
Columbus, OH 43229, Telephone: (614) 265-6888; Email: 
<a href="/cdn-cgi/l/email-protection#6c200d02021542291e08031f2c08021e421f180d180942030442191f"><span class="__cf_email__" data-cfemail="b2fed3dcdccb9cf7c0d6ddc1f2d6dcc09cc1c6d3c6d79cddda9cc7c1">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Ben Owens, Telephone: (614) 416-2238. 
Email: <a href="/cdn-cgi/l/email-protection#e2808d95878c91a28d918f9087cc858d94"><span class="__cf_email__" data-cfemail="b6d4d9c1d3d8c5f6d9c5dbc4d398d1d9c0">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program
II. Description of the 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 this Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior 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 (41 FR 34688). You can also find later actions concerning the 
Ohio program and program amendments at 30 CFR 935.11, 935.12, 935.15, 
and 935.16.

II. Description of the Amendment

    Initial Submission: By letter dated March 6, 2007, Ohio sent us an 
amendment to its program (Administrative Record Number OH-2185-28), 
known by Ohio as Program Amendment No. 82. The amendment was intended 
primarily to satisfy a program condition codified in the Federal 
regulations at 30 CFR 935.11(h). It was in response to our letter of 
May 4, 2005, issued under provisions of 30 CFR 733.12(b). The program 
condition and the 733 letter provided that Ohio 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. We announced the receipt of this amendment in the 
April 30, 2007, Federal Register (72 FR 21176).
    The submission was a result of the adoption of Ohio House Bill 443 
in 2007, which was intended to address many of the issues of concern to 
OSM relative to Ohio's alternative bonding system. The submission 
involved legislative action resulting in changes to the Ohio Revised 
Code (ORC) regarding the state's alternative bonding system, funding 
for its regulatory and abandoned mine land programs, permitting 
procedures for determining the potential for acid mine drainage, and 
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 submission included: Ohio House Bill 443 as 
signed into law; a Summary of Coal Mining Provisions of House Bill 443 
prepared by the Ohio Division of Mineral Resources Management (DMRM); 
Program Amendment No. 82 request; revisions to the Ohio Bonding 
Program; Explanation of Proposed Bond Pool Revisions; and an Analysis 
of the impacts of House Bill 443 upon DMRM revenues.
    OSM conducted a review of the submission and documented its 
findings in a letter to Ohio dated July 26, 2007 (Administrative Record 
No. OH-2185-36). In that letter, OSM identified 24 issues that required 
additional clarification or a description of necessary rulemaking 
before OSM could provide the analysis necessary to make a decision on 
the adequacy of the amendment provisions in meeting SMCRA requirements. 
These issues would require additional legislative changes, rulemaking, 
procedure development, and completion of an actuarial study, followed 
by a revised program amendment. For these reasons, OSM deferred 
deciding on the submission until Ohio submitted additional information. 
The following actions occurred subsequent to the initial submission:
    Establishment of Workgroups:
    Ohio acknowledged that significant amendments to the Ohio 
Administrative Code (OAC) would be needed to ensure that the final 
program amendment, in whole, was consistent with the relevant Federal 
regulations. Ohio chartered several workgroups made up of internal

[[Page 8187]]

and external stakeholders to develop final procedures that would be 
issued as a basis for writing new and revising existing regulations 
under the Ohio Administrative Code (OAC) to implement the provisions of 
HB 443. The workgroups' efforts resulted in development of procedures 
affecting such matters as acid-base accounting, reclamation cost 
estimates, performance security release/approval, tax credits, and 
others as described in some of the following paragraphs.
    OSM/State Communications:
    OSM met with Ohio on August 22, 2007 (Administrative Record No. OH-
2185-37), and on August 27, 2007 (Administrative Record No. OH-2185-
38), to discuss the issues and Ohio's plans to address them. Ohio 
responded to OSM's July 26, 2007, letter on October 15, 2007 
(Administrative Record No. OH-2185-39) requesting an extension of time 
until January 18, 2008, to respond to OSM's issues. OSM responded on 
November 6, 2007 (Administrative Record No. OH-2185-40), granting 
Ohio's request for an extension. Ohio provided a detailed response to 
OSM's issues on January 18, 2008 (Administrative Record No. OH-2185-
41). Their response included Ohio's expectation that discussion with 
the mining industry regarding needed statutory changes would continue 
and regulations would be adopted by December 2009. By letter dated July 
3, 2008 (Administrative Record No. OH-2185-42), Ohio responded to 
concerns that OSM identified regarding changes to program funding and 
described a new revenue source. By letter dated January 9, 2009, OSM 
responded (Administrative Record No. OH-2185-44) to Ohio's letter of 
January 18, 2008. In this letter OSM reiterated some of the major 
concerns with the amendment and acknowledged Ohio's letter of July 3, 
2008, regarding program funding concerns. OSM met with Ohio on January 
29, 2009 (Administrative Record No. OH-2185-45), to discuss OSM's 
January 9, 2009, letter and Ohio's progress with additional program 
changes in response to OSM's issues. Ohio responded to OSM's letter of 
January 9, 2009, by letter dated April 17, 2009 (Administrative Record 
No. OH-2185-46), that described statutory changes that had occurred or 
would occur to address the major concerns OSM identified.
    Ohio provided OSM with a copy of a letter from Pinnacle Actuarial 
Resources to the Chair of the Ohio Reclamation Forfeiture Advisory 
Board dated June 22, 2009, that included a report entitled ``Analysis 
of the Ohio Reclamation Forfeiture Fund.'' This actuarial analysis 
provided information and recommendations regarding the fiscal condition 
of Ohio's performance security pool (Administrative Record No. OH-2185-
47). The Board forwarded this report, along with recommendations 
resulting from the report, to the Governor of Ohio by letter dated June 
29, 2009 (Administrative Record No. OH-2185-48).
    On July 28, 2009, Ohio provided OSM with an update (Administrative 
Record No. OH-2185-49) to Ohio's Program Amendment No. 82, which was 
intended to address several of the issues OSM had identified with 
Ohio's original program amendment submittal. This document included 
three legislative actions (portions of House Bill 119, Senate Bill 73, 
and Senate Bill 386); changes to OAC effective April 30, 2009; an 
opinion from DMRM's Chief legal counsel regarding the cap on liability 
of Ohio's alternative bonding system, and the 2009 actuarial report. 
Since additional changes were forthcoming, OSM did not process this 
update as a formal program amendment.
    On July 27, 2010, OSM sent a letter to Ohio (Administrative Record 
No. OH-2185-52), providing the issues that OSM believed to remain 
unresolved and asked for an update on the status of addressing the 
issues since Ohio's projected completion date of December 2009 had 
passed. Ohio replied on October 18, 2010 (Administrative Record No. OH-
2185-53), providing a status report on negotiations with the Ohio Coal 
Association regarding additional legislative issues, the status of a 
second actuarial analysis, and a number of rules that had been adopted.
    April Submission: By letter dated April 1, 2011, Ohio sent us an 
amendment to its program (a continuation of the original 2007 
submission), Administrative Record No. OH-2185-54, under SMCRA (30 
U.S.C. 1201 et seq.). Ohio changed its program by adding and changing 
statutory provisions (Ohio Revised Code--ORC) and rules (Ohio 
Administrative Code--OAC) regarding performance bond on coal mining 
operations in response to OSM's concerns and in order to codify 
regulatory language resulting from House Bill 443 (which had been 
announced previously). In addition to these changes, Ohio subsequently 
added or changed statutory provisions and regulations regarding topics 
such as valid existing rights, re-mining, abandoned mine lands, 
blasting, and topsoil handling, among others.
    The submission includes statutory changes to Chapters 1513 and 5749 
of the ORC that resulted from four different legislative actions (House 
Bill 119, Senate Bill 73, Senate Bill 181, and Senate Bill 386); 
regulatory changes to Chapter 1501 of the OAC; a 2009 actuarial report 
analysis of Ohio's reclamation forfeiture fund; and procedure 
directives. In addition to the documents mentioned above, the state has 
included procedure directives for the purposes of clarity and support 
and they are not considered part of this amendment.
    July Submission: By letter dated July 26, 2011 (Administrative 
Record No. OH-2185-61), Ohio provided additional statutory changes 
adopted under House Bill 163 on June 30, 2011; a recently completed 
2011 actuarial report on the reclamation forfeiture fund; and a letter 
to the Governor from the Reclamation Forfeiture Fund Advisory Board 
regarding the actuarial report.
    We are combining the April 1, 2011, and the July 26, 2011, 
submissions with the original submission and reopening the comment 
period. When taken together, the March 8, 2007, the April 1, 2011, and 
the July 26, 2011, submissions include changes to the following 
provisions of the ORC and OAC.
    Legislative Actions:
    As mentioned above, we announced the provisions of the April 6, 
2007, submission that included House Bill 443 in the April 30, 2007, 
Federal Register (72 FR 21176). Since that publication, five additional 
legislative actions have occurred: House Bill 119 dated September 28, 
2007; Senate Bill 386 dated April 7, 2009; Senate Bill 73 dated June 
15, 2009; Senate Bill 181 dated September 13, 2010; and House Bill 163 
dated June 30, 2011. As legislative activity progressed throughout 
these years, many of the provisions of the more recent bills modified 
previously enacted bills. We did not announce these legislative actions 
as they occurred, but rather aggregately included them with this 
notice. To simplify our description of the outcome of the legislative 
activity that occurred subsequent to House Bill 443, we have summarized 
pertinent changes based on the ORC language that currently exists. 
While we had already announced the submission involving ORC changes 
resulting from the enacted provisions of House Bill 443, we have chosen 
to include them here to provide a comprehensive summary of all of the 
changes requested for approval. The summary of the changes follows:

1513.01: Coal Surface Mining Definitions (Revised by House Bill 443 and 
Senate Bill 73)

    This section was revised to define the new term ``performance 
security'' and to

[[Page 8188]]

clarify that the state is the primary beneficiary of any trust fund.

1513.02: Chief of Division of Mineral Resources Management--Powers and 
Duties (Revised by House Bill 443)

    With regard to the power and duties of the Chief concerning 
violations and penalty assessments, this section was revised to direct 
that all funds collected from civil penalties be deposited in the 
reclamation forfeiture fund, instead of the coal mining administration 
and reclamation reserve fund. With regard to the power and duties of 
the Chief, this section was revised to add the provision that if the 
state 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 the waters of the U.S. 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.

1513.07: Coal Mining and Reclamation Permit--Application or Renewal--
Reclamation Plan (Revised by House Bill 443, Senate Bill 386, Senate 
Bill 73, and House Bill 163)

    With regard to the permit application, this section was revised to 
delete the permit application and renewal fee. The loss of program 
operation funding previously generated by the fees was addressed 
through changes to the excise tax on coal production. With regard to 
the results of test borings or core samplings from the application 
area, the section was revised to add that if test borings or core 
samplings from the application 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. With regard 
to the reclamation plan, this section was revised to clarify that it is 
the applicant's responsibility to provide adequate information in the 
application to enable the Chief to determine the estimated cost to 
reclaim the site in the event of forfeiture and eliminate the 
requirement that the permittee provide the estimated cost of 
reclamation per acre in a permit application. With regard to post-
application processing, this section was revised to establish that the 
state must make a decision on completeness on coal mining permit 
applications and notify the applicant of a decision within 14 days of 
submission. This section was also revised to add a permit provision 
that addresses the situation involving a conflict of results between 
various methods of calculating potential acidity and neutralization 
potential. The change is for purposes of assessing the potential for 
acid mine drainage to occur at a mine site. It requires that the permit 
include provisions for monitoring and recordkeeping 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 additional requirements regarding mining practices and 
site reclamation to prevent the discharge of acid mine drainage from 
the mine site. With regard to right-of-entry documents, this section 
was revised to provide that right-of-entry documents must be provided 
in cases where the private mineral estate has been severed from the 
private surface estate only in cases where surface disturbance will 
result from the extraction of coal by the applicant's proposed strip 
mining method.

1513.073: Designating Areas as Unsuitable for Coal Mining Operations 
(Revised by House Bill 163)

    With regard to the designation criteria, this section was revised 
to clarify that prohibitive distances for mining close to public roads, 
occupied dwellings, public buildings, schools, churches, community or 
institutional buildings, public parks, and cemeteries are measured 
horizontally.

1513.075: Potential Acidity and Neutralization of Disturbed Strata 
(Created by House Bill 443 and Revised by House Bill 163)

    This is a new section that 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 a 
proposed mining operation's potential to create acid or toxic drainage. 
The section provides specific criteria and the conditions under which 
proposed mining areas not meeting certain numeric criteria ``may'' not 
be considered as potential acid/toxic producers.

1513.076: Agency Coordination and Cooperation Respecting Permits 
(Created by Senate Bill 386)

    This is a new section that requires coordination, cooperation, and 
communication between the Ohio Department of Natural Resources and the 
Ohio Environmental Protection Agency regarding processing of coal 
mining permit applications. It requires establishment of a joint-agency 
task force to ensure that procedures are established and implemented.

1513.08: Filing Performance Bond or Deposit of Cash or Securities 
(Revised by House Bill 443, House Bill 119, and Senate Bill 73)

    With regard to an applicant's obligations after a coal mining and 
reclamation permit application has been approved, this section was 
revised to provide that the applicant shall file a performance security 
that is payable to the state and conditioned on the faithful 
performance of the requirements and rules and conditions of the permit. 
The section had previously provided that after the permit application 
was approved and before the permit was issued, the applicant must file 
such a security.
    With regard to estimated cost of reclamation for performance 
security calculations, changes require the state to provide: (1) 
Reclamation cost estimates on all permits according to the basic 
criteria provided followed by a written notice of the estimate to the 
applicant; and (2) an option for some applicants/permittees to provide: 
(a) performance security in the full amount of the estimated cost to 
reclaim the site; or (b) performance security of $2,500 per acre with 
reliance on the reclamation forfeiture fund by paying an excise tax on 
coal production. With regard to the first option, the section was 
revised to establish that the amount of performance security will be 
based on the state's estimated cost to reclaim the site. With regard to 
the second option, this section was revised to: define the terms 
``affiliate of the applicant'' and ``owner and controller of the 
applicant;'' clarify that the applicant includes the owner or 
controller and/or any affiliate of the applicant; clarify eligibility 
for applicants to participate in the performance security pool; 
establish that if forfeiture occurs, the difference between the amount 
of performance security provided by the permittee and the estimated 
cost to reclaim the site will be provided from the reclamation 
forfeiture fund; and, establish the methods of providing performance 
security for permits held prior to the effective date of House Bill 
443.
    With regard to the permittee's liability under the performance 
security, this section was revised to add that a permittee's liability 
under the performance security is limited to the obligation established 
under the permit. That includes completion of the reclamation plan to 
return the land to a

[[Page 8189]]

condition capable of supporting the postmining land use that was 
approved in the permit.
    With regard to the estimated cost to reclaim, this section was 
changed to require the state to adjust the estimate under certain 
conditions, provide notice to the permittee and other interested 
parties, and provide an opportunity for an informal conference 
regarding the adjustment. Changes also provide that the permittee may 
request a reduction in the amount of performance security. The state 
will make a determination on such requests based on the documentation 
provided and other information and will notify the permittee of the 
findings.
    With regard to performance security, this section was revised to 
provide that, upon approval by the Chief, performance security may be 
held in trust, provided that the state is the primary 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 the state. With regard to surety insolvency, 
this section was revised to add provisions that require the operator to 
submit a plan for replacement of performance security if a surety, 
bank, savings and loan association, trust company, or other financial 
institution that holds the performance security becomes insolvent.
    With regard to the permittee's responsibility for addressing 
subsidence damage, this section was revised to clarify that liability 
insurance may be used in lieu of performance security for subsidence 
damage under the full-cost performance security option. It also 
specifies that performance security must be adjusted to cover the cost 
of subsidence repair or water supply replacement if repairs/
replacement/compensation does not occur within 90 days, with allowance 
for more time, up to one year, if the permittee shows that subsidence 
is not yet completed.
    The section regarding the amount of security was revised to add the 
provision that, if the performance security provided exceeds the 
estimated cost of reclamation, the Chief may authorize the amount of 
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.

1513.081: Priority Lien Where Operator Becomes Insolvent (Created by 
House Bill 443 and Revised by House Bill 163)

    This is a new section that provides the lien provisions and 
conditions when an operator becomes insolvent. It includes a provision 
that the state shall have a priority lien superior to all interested 
creditors against the assets of that operator for the amount of any 
reclamation that is required, including the cost of long-term water 
treatment and replacement of alternative water supplies, as a result of 
the operator's mining activities. This section describes the procedures 
the Chief will use in such cases. It also describes the conditions 
under which the Chief shall issue a certificate of release, modify the 
amount of the lien, and authorize a closing agent to hold a certificate 
of release in escrow for a period not to exceed 180 days for the 
purpose of facilitating the transfer of unreclaimed mine land. This 
section also adds the provision that all money from the collection of 
liens shall be deposited in the state treasury to the credit of the 
reclamation forfeiture fund.

1513.10: Refund of Permit Fees (Repealed by House Bill 443)

    This section was repealed. It provided conditions in which the 
operator would be entitled to a permit fee refund and described the 
manner in which the reclamation fee fund and coal mining administration 
and reclamation reserve fund were used and maintained for such use.

1513.13: Public Adjudicatory Hearings (Revised by House Bill 443)

    With regard to appeals made to the reclamation commission, this 
section was revised to clarify that only the petitioning party may be 
awarded costs and expenses, including attorney's fees that were 
necessary and reasonably incurred for, or in connection with 
participating in the proceeding before the commission.

1513.16: Performance Standards (Revised by House Bill 443 and House 
Bill 163)

    With regard to general performance standards that apply to all coal 
mining and reclamation operations and performance security, this 
section was revised to provide that alternative financial security is 
required when 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 when the permittee must 
provide an alternative water supply after reclamation is completed. The 
revision also provides the amount and form of the security. It also 
provides permittees under performance security with reliance on the 
reclamation forfeiture fund with the option of funding an alternative 
financial security over time, up to five years, with reliance for the 
balance on the reclamation forfeiture fund until the alternative 
financial security is fully funded. Permittees taking this option must 
pay the state a fee of 7.5 percent of the average balance of the 
alternative financial security that is being provided by reliance on 
the reclamation forfeiture fund. The fee will be credited to the fund. 
In addition, the revision provides that rules must be developed to 
address how contracts/trusts/annuities for water treatment will be 
developed. With regard to final release of the performance security, 
this section was revised to add that the final release of the 
performance security terminates the jurisdiction of the Chief over the 
reclaimed site of a surface coal mining and reclamation operation or 
applicable portion of an operation. It provides the conditions under 
which the Chief may reassert jurisdiction over such a site and the 
appeal procedures regarding such a determination.

1513.171: Tax Credit for Reclamation Outside Permit Area (Created by 
House Bill 443)

    This is a new section that provides the procedures for claiming a 
credit and the authority for approving and determining the amount of 
such a credit. It provides that rules shall be adopted to establish 
procedures for determining the amount; when the chief may obtain 
consent of the owners of land or water resources to allow reclamation 
work; and delivery of notice to the owners of land or water resources 
on which the reclamation work is to be performed.

1513.18: Reclamation Forfeiture Fund (Revised by House Bill 443, House 
Bill 119, Senate Bill 73, and House Bill 163)

    With regard to the fund, this section was revised to delete a 
phrase describing the reclamation forfeiture fund and its contents. The 
fund was comprised of any monies transferred to it from the unreclaimed 
lands fund and monies collected and credited to it. The section now 
provides that the fund is comprised of all money from the collection of 
liens, any monies transferred to it from the coal mining and 
reclamation reserve fund, fines collected, and monies collected and 
credited to it. Since the fund is no longer responsible for non-coal 
sites, the Chief's priority for designating funding was eliminated. 
Thus, this section was further revised to delete the requirement that 
the Chief's priority for management of the fund, including the 
selection of projects and transfer of monies, shall be to ensure that 
sufficient funds are

[[Page 8190]]

available for the reclamation of areas affected by mining under a coal 
mining and reclamation permit. It now provides that the Chief may 
expend monies from the fund to pay necessary administrative costs of 
the reclamation forfeiture fund advisory board.
    This section was revised to authorize the Chief to enter into a 
contract with a contractor hired by the trust administrator to provide 
long-term water treatment or a long-term alternative water supply on 
areas on which a permittee defaulted or has not fully funded an 
alternative financial security without advertising for bids. It 
clarifies that the money from forfeited performance security credited 
to the reclamation forfeiture fund will pay the cost of completing 
reclamation to the standards established by the law and rules. It also 
authorizes use of any alternative financial security in addition to 
forfeited performance security to complete the reclamation of sites. It 
clarifies that for permits covered by performance security with 
reliance on the reclamation forfeiture fund, if the forfeited 
performance security and any alternative financial security are not 
sufficient to complete reclamation to the standards of the law and 
rule, the Chief may expend any other monies transferred to the fund to 
complete the reclamation. It also provides an exception to the 
prohibition that the reclamation forfeiture fund cannot be used for 
water treatment. The exception allows use of money from the reclamation 
forfeiture fund for reclamation of land and water resources affected by 
mine drainage that requires treatment or for an alternative water 
supply in an amount not to exceed the balance of the alternative 
financial security provided by the reclamation forfeiture fund. In 
addition, money from the reclamation forfeiture fund shall not 
supplement the performance security of a permittee that has provided 
performance security without reliance on the reclamation forfeiture 
fund. This section was also revised to add that all investment earnings 
of the fund shall be credited to the fund and shall be used only for 
the reclamation of land for which the performance security was 
provided.

1513.181: Coal Mining Administration and Reclamation Reserve Fund 
(Revised by House Bill 443)

    With regard to the fund, this section was revised to remove the 
provision that fines collected shall be paid into the coal mining 
administration and reclamation reserve fund. The section was also 
revised to provide that if the Director of Natural Resources determines 
it necessary, he/she 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.

1513.182: Reclamation Forfeiture Fund Advisory Board (Created by House 
Bill 443)

    This is a new section that provides for the creation of the 
reclamation forfeiture fund advisory board. It includes provisions for 
the composition of the board, term limits for board members, 
compensation of board members, election of officers, meeting frequency, 
establishment of board procedures, and responsibilities of the board. 
The responsibilities of the board include: reviewing deposits into and 
expenditures from the reclamation forfeiture fund; procuring periodic 
actuarial studies; adopting rules to adjust the rate of tax levied; 
providing a forum for discussion of issues related to the reclamation 
forfeiture fund and the performance security that is required; 
submitting a biennial report 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, recommending to the Governor, if necessary, alternative methods of 
providing money for or using money in the reclamation forfeiture fund. 
The board will also evaluate any rules, procedures, and methods for 
estimating the cost of reclamation for purposes of determining the 
amount of performance security that is required; 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.

1513.29: Council on Unreclaimed Strip Mined Lands (Revised by House 
Bill 443)

    With regard to meeting frequency, this section has been revised to 
change the requirement to hold at least four quarterly meetings each 
year to providing that meetings would occur as necessary.

1513.30: Unreclaimed Lands Fund--Selection of Project Areas (Revised by 
House Bill 443)

    The section regarding the Chief's recommendations concerning 
project selection and priorities to the council on unreclaimed strip 
mined lands has been revised. The revision removes the requirement that 
the Chief shall mail a notice at least two weeks before any meeting of 
the council during which the Chief will submit a project proposal, a 
project area will be selected, or the boundaries of a project area will 
be determined, to the board of county commissioners 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 area. The Chief is no longer required 
to give reasonable notice to the news media in the county where the 
proposed project lies. This section has also been revised to remove the 
provision that the controlling board may transfer excess funds from the 
oil and gas well fund after recommendation by the council to meet 
deficiencies in the unreclaimed lands fund. Also, if the director of 
natural resources determines it necessary, he/she may request the 
controlling board to transfer an amount of money from the fund to the 
coal mining administration and reclamation reserve fund.

1513.371: Abandoned Mine Reclamation Fund (Created by House Bill 443, 
Revised by House Bill 163)

    This is a new section that provides for the creation and management 
of an abandoned mine land set-aside fund. This section was later 
revised to delete research and demonstration projects from the list of 
eligible expenditures from the AML set-aside fund.

1513.372: Immunity From Liability (Created by Senate Bill 181)

    This is a new section establishing the conditions under which an 
eligible landowner or nonprofit organization is immune from liability 
for injuries or damages that occur during an abandoned mine land or 
acid-mine drainage reclamation project. It also establishes procedures 
for notifying the division of known, latent, dangerous conditions 
located at the reclamation project work area and limitations on 
immunity.

5749.02: Excise Tax on Severance of Natural Resources (Revised by House 
Bill 443, House Bill 119, and Senate Bill 73)

    With regard to the excise tax, this section was revised to increase 
the coal excise tax from 7 cents to 10 cents per ton for providing 
revenue to administer the state's coal mining and reclamation 
regulatory program. It also 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 and 
credited to the reclamation

[[Page 8191]]

forfeiture fund. It also provides the conditions and applicable dates 
for adjustment of this tax, depending on the forfeiture fund balance. 
In addition, it provides the conditions that must exist for determining 
that forfeiture liability no longer exists and the excise tax can be 
discontinued for a period of time. It further provides that an 
additional 1.2 cents per ton is required for coal mined by surface 
mining methods and credited to the unreclaimed lands fund. With regard 
to the allocation of the taxes levied, the section has been revised to 
specify the percentage of each severance tax that will be credited to 
each of the following funds: coal mining administration and reclamation 
reserve fund; reclamation forfeiture fund; the unclaimed lands fund; 
or, other fund as designated. The section was also revised to eliminate 
the tax levied at the rate of one cent per ton of coal, the monies of 
which were allocated to reclaim bond forfeiture lands.

5749.11: Nonrefundable Credit (Created by House Bill 443)

    This is a new section that provides for a nonrefundable credit 
against the severance taxes imposed on coal production based on an 
issued reclamation tax credit certificate.

Rule Changes

    As a result of the statutory changes, Federal rule changes, and 
Ohio's internal review of rules, Ohio made numerous rule changes as 
described in the paragraphs below. In addition to the substantive 
changes we mention below, non-substantive changes were also included 
with this submission. Non-substantive changes include: changes of 
address; inclusion of Web site addresses; changes in division names and 
titles; typographical errors; chapter titles; paragraph references; 
citations; use of ``performance security'' rather than ``bond;'' 
inclusion of reference to the National Register of Historic Places; 
name change to ``reclamation commission;'' use of ``applicant'' and 
``permittee'' rather than ``operator'' to clarify obligations and 
responsibilities; and, the incorporation by reference to dates of 
Federal regulations and Federal laws. Substantive changes to the Ohio 
Administrative Code, Chapter 1501:13 included in the submission are as 
follows:

1501:13-1-02: Definitions

    Ohio made several additions and modifications of definitions that 
are intended to simplify, clarify, or mirror Federal regulations or 
state statutory language. Definitions of the following terms have been 
added to this section: angle of draw; effluent limitations; incremental 
mining unit; national pollutant discharge elimination system; point 
source discharge; receiving water; shadow area; trust fund; and, water 
quality standards. The following definitions have been revised: 
collateral bond; engineer; incremental area; operator; performance 
security; pollution abatement area; person; recurrence interval; 
runoff; safety factor; surveyor; and valid existing rights.

1501:13-1-03: Restrictions on Financial Interest of Employees

    The Reclamation Forfeiture Fund Advisory Board was added to this 
rule to clarify that the restrictions on financial interest of 
employees do not apply to the advisory board members. However, advisory 
board members do have to file an annual statement of employment and 
financial interest.
    This section also clarifies that members of the Reclamation 
Commission do not have prohibited financial interests under this rule 
and, therefore, will never be ordered by the Chief to take remedial 
action. Instead, commission members are required to file statements of 
employment and financial interest and are required to recuse themselves 
from proceedings which may affect their direct or indirect financial 
interests. Unlike the requirements for commissioner members, there are 
prohibited financial interest provisions for hearing officers of the 
Reclamation Commission.
    In addition, more detail was added regarding employees accepting 
gifts of nominal value from coal companies; clarification was added 
regarding how an employee is notified that remedial action is necessary 
to resolve a prohibited interest; and, clarification was added that 
appeals procedures involving remedial action to be taken by employees 
are different than those to be taken by the Chief or a hearing officer 
of the Reclamation Commission.

1501-13-1-10: Availability of Records

    With regard to the public's accessibility to documents involving 
permits and inspection and enforcement actions, this rule was changed 
to only provide access to such documents at the Division of Mineral 
Resources Management's district office that is responsible for 
inspection of the mining operation. This rule has also been changed to 
delete the provision that copies of information sent by mail at the 
request of a member of the public will occur at the division's expense.

1501:13-1-14: Incorporation by Reference

    This is a new rule that contains a list of all Federal regulations 
and Federal laws that are incorporated by reference in Chapter 1501:13 
of the Ohio Administrative Code. The rule also explains where the 
public can find a copy of the Federal regulations and Federal laws, and 
the editions of the Code of Federal Regulations and United States Code 
in which the regulations and laws are published.

1501:13-3-01: Standards for Demonstration of Valid Existing Rights

    This is a new rule that describes the demonstration requirements 
for a person claiming valid existing rights. As proof of valid existing 
rights, it requires that a person must provide a property rights 
demonstration and compliance with the good faith/all permits standard 
or compliance with the needed for and adjacent standard. In addition, 
if a person who claims valid existing rights to use or construct a road 
across the surface of protected lands, he/she must provide additional 
demonstrations. Possession of valid existing rights only provides 
exceptions to the prohibited distances from certain structures, 
facilities, and resources as described under the areas designated as 
unsuitable for mining provisions of ORC and OAC.

1501:13-3-02: Submission and Processing of Requests for Valid Existing 
Rights Determinations

    This is a new rule that describes the requirements for submitting a 
request for a valid existing rights determination, which is required 
before preparing and submitting an application for a permit or boundary 
revision for the land for which the determination is sought. This 
includes: Requirements for property rights demonstration; additional 
requirements for the good faith/all permits standard; additional 
requirements for the needed for and adjacent standard; and requirements 
for roads.
    This rule also describes the procedures Ohio will use to process a 
request for a valid existing rights determination. This includes the: 
Initial review of the request; public notice and opportunity to 
comment; determination of the Chief; and post-determination process.

1501:13-3-03: Areas Where Mining Is Prohibited or Limited

    This rule was reorganized and a provision was added to provide 
exceptions for existing operations. The provisions of this rule do not 
apply to mining operations for which a valid

[[Page 8192]]

permit existed when the land came under protection of the law.

1501:13-3-04: Procedures for Identifying Areas Where Mining Is 
Prohibited Or Limited

    The rule change clarifies that the rule applies to a complete 
application for a coal mining and reclamation operation permit as well 
as to a complete application for revision of the boundaries of a coal 
mining and reclamation operation permit. It also expands the 
requirements for obtaining a road permit to include situations where 
the applicant proposes to relocate or close a public road. The rule 
also provides that an applicant for a permit to mine on Federal land 
shall submit a permit application to the Director of the Office of 
Surface Mining under the terms of the cooperative agreement between OSM 
and Ohio. An applicant requesting a determination regarding valid 
existing rights to mine on Federal land must submit a request to the 
Director of the Office of Surface Mining.

1501:13-4-01: General Contents Requirements for Permit Applications

    This rule change deletes the provision requiring submittal of a 
permit fee with an application.

1501:13-4-02: Requirements of Coal Exploration

    With regard to the requirements for a written notice for coal 
exploration operations, this rule was revised to remove the limitation 
regarding the requirements for those operations involving the removal 
of 250 tons of coal or less. This rule was also revised to add the 
requirement that, for any area where mining is prohibited or limited, a 
demonstration that the proposed exploration activities have been 
designed to minimize interference with the values for which those lands 
were designated as unsuitable for coal mining operations, to the extent 
technologically and economically feasible. The application must include 
documentation of consultation with the owner of the feature causing the 
land to come under the protection of unsuitable for mining and, when 
applicable, with the agency with primary jurisdiction over the feature 
with respect to the values that caused the land to come under such 
protection. With regard to decisions on applications for exploration, 
this rule was revised to add that before making a finding, the Chief 
shall provide reasonable opportunity to the owner of the feature 
causing the land to come under such protection and, when applicable, to 
the agency with primary jurisdiction over the feature with respect to 
the values that caused the land to come under the protection, to 
comment on whether the finding is appropriate.

1501:13-4-03: Permit Application, Requirements for Legal, Financial, 
Compliance and Related Information

    With regard to right of entry and operation information, this rule 
was revised to clarify that right of entry information must be provided 
for the permit and shadow areas of underground mines.

1501:13-4-04: Permit Application Requirements for Information on 
Environmental Resources

    With regard to groundwater and surface water information, this rule 
was revised to add parameters for aluminum and sulfates for analyzing 
water samples. This rule now requires that the application map be 
prepared by or under the direction of and certified by a surveyor 
(``engineer'' is removed from this portion of the paragraph), or 
jointly by a surveyor and an engineer, since this map is the 
responsibility of a surveyor rather than an engineer. This rule was 
also revised to require that the supplementary maps and cross sections 
required under this section be prepared by or under the direction of 
and certified by an engineer (``surveyor'' is removed from this portion 
of the paragraph), or jointly by an engineer and a surveyor, since the 
information required is the responsibility of an engineer rather than a 
surveyor.

1501:13-4-05: Permit Applications; Requirements for Legal, Financial, 
Compliance and Related Information

    With regard to the requirement that an operation plan include a 
description of the mining operations proposed and a narrative 
explaining the construction, modification, use, maintenance, and 
removal of certain facilities (i.e., dams, overburden, topsoil 
handling, storage areas, and structures), this rule was revised to 
delete the requirement that retention of such facilities is necessary 
for the postmining land use. The revision now provides that the 
facilities be approved by the Chief for postmining land use. With 
regard to the application information, this rule was revised to include 
a requirement that it is the applicant's responsibility to provide 
adequate information in the application to enable the Chief to 
determine the estimated cost to reclaim the site in the event of 
forfeiture. Such information must be sufficient to determine the 
greatest potential reclamation cost liability to the state. With regard 
to the operation plan and existing structures, this rule was revised to 
no longer allow an applicant to make a showing that existing structures 
meet interim program performance standards. With regard to the 
reclamation plan, this rule was revised to clarify that that detailed 
design plans shall be certified by an engineer, not just prepared under 
the direction of an engineer.

1501:13-4-06: Permit Applications, Revisions, and Renewals, and 
Transfers, Assignments, and Sales of Permit Rights

    With regard to the requirements for applications for permits and 
permit renewals, this rule was revised to require that an application 
is deemed complete unless the Chief notifies an applicant within 14 
business days of an application submission that an application is 
incomplete and provides written notification that identifies the 
deficiencies in the application. This rule was also revised to add the 
requirement that the Chief review revisions to permits to determine if 
an adjustment of the estimated cost of reclamation will be required. 
This rule was also revised regarding transfer, assignment, or sale of 
permit rights by indicating that any person seeking to succeed by 
transfer, assignment, or sale must obtain the appropriate performance 
security coverage for the permitted operation by either obtaining 
transfer of the original performance security coverage of the original 
permittee, provided that the successor meets the eligibility 
requirements for obtaining performance security together with reliance 
on the reclamation forfeiture fund, or by providing sufficient 
performance security under the full-cost option.

1501:13-4-07: Annual Reports

    With regard to the requirements that the permittee file information 
with the Chief 30 days after each anniversary date of the issuance of a 
coal mining and reclamation permit, this rule was revised to clarify 
that estimates of acreages are required for both the permit area and 
any incremental area or incremental mining unit. With regard to the 
requirement to provide performance security information, this rule was 
revised to clarify the information that is required. With regard to the 
annual map, it also includes the requirement that the annual report 
must include the boundaries of each incremental mining unit affected 
during the permit area during the permit year for which the annual 
report is filed and for all preceding permit years. It removes the 
requirement that the map be shaded in various colors, if applicable, 
for the types of bonds posted for each area of the permit and if more 
than one surety

[[Page 8193]]

was procured. This rule has also been revised to add that within 30 
days after the completion of mining operations on a permit, a final 
report shall be filed with the Chief.

1501:13-4-09: General Map Requirements

    With regard to general map requirements, this rule was revised to 
clarify that acreage figures shall be reported or estimated to the 
nearest \1/10\th of an acre. This rule was also revised to remove 
engineers, to clarify that the certification of maps is limited to 
surveyors. A paragraph has been added to explain when a professional 
engineer must also sign and seal a map.

1501:13-4-12: Requirements for Permits for Special Categories of Mining

    With regard to approximate original contour restoration 
requirements and variances granted under this rule, this rule was 
revised to clarify that recreational facilities are considered a public 
postmining land use allowable under the rules governing variances. For 
coal preparation plants or support facilities not located within the 
permit area of a specified mine, this rule adds the requirement that 
each application for a permit shall contain the information required 
for the proposed permit area in sufficient detail to determine the 
estimated cost of reclamation, if the reclamation has to be performed 
by the state in the event of forfeiture of the performance security by 
the permittee. It adds that the operational detail shall be sufficient 
to determine the greatest potential reclamation cost liability to the 
state and any other operational detail required that may affect the 
cost of reclamation.

1501:13-4-13: Underground Mining Permit Application Requirements for 
Information on Environmental Resources

    With regard to groundwater and surface water information, this rule 
was revised to require testing for the added parameters of aluminum and 
sulfates. This rule has also been revised to allow surveyors to certify 
maps, but not cross sections, which are certified by an engineer.

1501:13-4-14: Underground Mining Permit Application Requirements for 
Reclamation and Operations Plans

    With regard to the requirement that the narrative for the operation 
plan of an underground mining permit application explain the 
construction, modification, use, maintenance, and removal of certain 
facilities, this rule was revised to delete the requirement that 
retention of such facilities is necessary for postmining land use. The 
revision now provides that the facilities be approved by the Chief for 
postmining land use. With regard to underground mining permit 
application general requirements, this rule was revised to add the 
requirement that each application for a permit shall contain the 
information required for the proposed permit area in the detail 
necessary for the Chief to determine the estimated cost of reclamation, 
if the reclamation has to be performed by the state in the event of 
forfeiture of the performance security by the permittee. It adds that 
the operational detail shall be sufficient to determine the greatest 
potential reclamation cost liability to the state and any other 
operational detail required that may affect the cost of reclamation. 
With regard to the operation plan and existing structures, this rule 
was revised to no longer allow an applicant to make a showing that 
existing structures meet interim program performance standards. With 
regard to the reclamation plan, this rule was revised to clarify that 
detailed design plans shall be certified by an engineer, not just 
prepared and under the direction of an engineer. With regard to the 
subsidence control plan, this rule was revised to add the requirement 
that an application shall include a map of the shadow area, including 
the angle of draw for the workings described.

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

    The rule regarding effluent limits of a remining NPDES permit was 
revised to clarify that it applies to operators seeking authorization 
to conduct mining operations under modified effluent limits of a 
remining NPDES permit. The rule was revised to clarify and establish 
minimum sampling and data collection criteria, provide criteria for 
exceptions for meeting the minimum sampling and data collection, and 
provide exemptions from meeting numeric effluent standards when using 
best management practices under certain conditions. The rule revision 
also eliminates the requirement that the permittee must notify the 
Chief prior to the start and upon completion of each step of the 
pollution abatement plan. The rule was also changed to clarify criteria 
for treatment of mine discharges under the pollution abatement plan. 
Changes to the performance security release criteria clarify that 
numeric effluent limits established in the remining NPDES permit must 
be met when applicable.

1501:13-4-16: Requirements for Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals

    With regard to the requirements for exemption for coal extraction 
incidental to the extraction of other minerals, this rule has been 
revised to add language regarding coal mining activities that are 
exempt from the requirements of ORC Chapter 1513. For an activity to be 
exempt from the requirements of the ORC, three of the five requirements 
were clarified: 1) the requirement that coal must be produced from a 
geological stratum lying above or immediately below the deepest stratum 
from which other minerals are extracted for purposes of bona fide sale 
or reasonable commercial use was clarified to define that the term 
``immediately below'' means that the coal to be mined shall be located 
not more than three feet below the lowest other mineral to be mined; 2) 
language was added that other minerals mined in a mining area, but not 
in the stratigraphic column of coal removed, shall not be used to 
calculate cumulative production or cumulative revenue; and 3) language 
was added stating that augering of coal is not used as a mining method, 
except for permits issued prior to February 29, 1988, with approved 
mining plans that allowed the augering of coal.

1501:13-5-01: Review, Public Participation, and Approval or Disapproval 
of Permit Applications and Permit Terms and Conditions

    With regard to the review of permit applications, revisions, and 
renewals, this rule was revised to add time frames for the review 
process. This rule was also revised to differentiate between the time 
frames for review when no informal conference is held and when an 
informal conference is held. A revision was also made to provide that 
the Chief shall grant or deny a permit not more than 240 business days 
after the submission of a complete application. It provides that any 
time during which the applicant is making revisions to the application 
or providing additional information requested by the Chief shall not be 
included in the 240 business days. If the Chief determines that a 
permit cannot be granted or denied within this time frame, the Chief 
shall provide the applicant with written notice of the expected delay 
no more than 210 business days after the submission of a complete 
application. The word ``significant'' was added before ``revisions'' 
throughout this section to clarify that public notice of

[[Page 8194]]

the filing of applications for significant permit revisions is 
required.

1501:13-7-01: General Requirements for Providing Performance Security 
for Coal Mining and Reclamation Operations

    With regard to performance securities, this rule was revised to 
clarify provisions for those permittees opting to provide performance 
security with reliance on the reclamation forfeiture fund (performance 
security pool) and provide new rules for those permittees opting to 
provide performance security without reliance on the fund (full-cost 
performance security). The rule now allows performance security to be 
deposited for incremental mining units and establishes criteria for 
identifying incremental mining units on the application map and on 
subsequent annual maps. It also states that once a permittee opts to 
provide full-cost performance security, the permittee may not change to 
using performance security with reliance on the reclamation forfeiture 
fund participation once coal extraction begins.
    Changes establish that the Chief will determine an estimated cost 
of reclamation for the state to reclaim the site should the permittee 
default on its obligation to reclaim. The rule describes the 
information the Chief will use to develop this estimate. The rule now 
specifies that the applicant must notify the Chief of the method chosen 
for providing performance security and provide the required amount of 
performance security after the Chief provides the written estimate to 
the applicant. Changes provide that for an applicant to be eligible to 
provide performance security with reliance on the reclamation 
forfeiture fund, the applicant, an owner or controller of the 
applicant, or an affiliate of the applicant must have had a permit in 
Ohio for not less than five years. The rule now establishes that if 
forfeiture of performance security on a permit that is reliant on the 
reclamation forfeiture fund occurs, the fund will provide the 
difference between the performance security provided by the permittee 
and the estimated cost of reclamation provided by the Chief. Changes 
also provide processes for obtaining release of excess performance 
security under both options and require the Chief to make adjustments 
to the estimated cost of reclamation.

1501:13-7-02: Amount and Duration of Performance Security

    With regard to the amount and duration of a performance security, 
this rule was revised to distinguish the amount of performance security 
for those permittees opting to provide performance security with 
reliance on the reclamation forfeiture fund (performance security pool) 
from those permittees opting to provide performance security without 
reliance on the fund (full-cost performance security). The rule further 
describes responsibilities for providing performance security for areas 
affected by material damage and water supplies from subsidence under 
each option. The rule now lists events that trigger the Chief's review 
and adjustment of performance security, establishes a permittee's right 
to request an informal review concerning adjustments of performance 
security, and provides that a permittee may request the Chief to reduce 
the performance security estimate when the method of operation or other 
circumstances reduce the cost of reclamation. An adjustment to 
performance security is not considered a release of performance 
security.

1501:13-7-03: Form, Conditions, and Terms of Performance Security

    With regard to the form, conditions, and terms of performance 
securities, this rule was revised to include a trust fund as an 
acceptable form of performance security. The rule is clarified to 
require that the name of the permittee on the performance security be 
identical to the name of the permittee on the permit. The rule also 
provides specific criteria that each form of bond must meet. Revisions 
further clarify that upon insolvency of an institution that holds the 
performance security, permittees under the full-cost option will have 
90 days to replace performance security coverage. Permittees who are 
reliant on the reclamation forfeiture fund will have up to one year to 
replace coverage.

1501:13-7-04: Self-Bonding

    With regard to self-bonding requirements, this rule has been 
revised to provide that an indemnity agreement, submitted by a limited 
liability company, must be signed by at least one member who is 
authorized to bind the company. The copy of such authorization shall be 
provided along with an affidavit certifying that such an agreement is 
valid under all applicable Federal and state laws.

1501:13-7-05: Procedures, Criteria, and Schedule for Release of 
Performance Security for Permits Reliant on the Reclamation Forfeiture 
Fund

    With regard to performance securities, this section heading was 
revised to clarify that this rule applies to a permittee that provides 
performance security together with reliance on the reclamation 
forfeiture fund. With regard to the procedures for seeking release of 
performance security, this rule was revised to clarify that a request 
for approval of a reclamation phase shall also include a request for 
release of performance security. With regard to the request for 
approval of a reclamation phase III request for release of performance 
security, this rule has been revised to provide that the number of 
acres of the area requested for release that are reclaimed as lands 
eligible for remining must be stated with the request. With regard to 
the criteria and schedule for release of performance security, this 
rule was revised to clarify that any portion of an incremental area 
requiring extended liability because of augmentation or failure to 
achieve the crop yields for prime farmland required for phase II 
performance security may be separated from the rest of the incremental 
area and have performance security provided separately if approved by 
the Chief. It also requires that in addition to other requirements for 
completeness of reclamation, any permanent structures to be maintained 
as part of the postmining land use must be included in the approved 
reclamation plan prior to phase II release. With regard to the approval 
of a reclamation phase, a new paragraph was added regarding remining 
and security release to provide that a portion of an incremental area 
requiring a reduced period of liability because of its classification 
as a remining area shall be separated from the rest of the incremental 
area and shall be eligible for phase III performance security release.

1501:13-7-05.1 Procedures, Criteria and Schedule for Release of 
Performance Security for Permits not Reliant on the Reclamation 
Forfeiture Fund

    This is a new rule applying only to a permittee that provides 
performance security without reliance on the reclamation forfeiture 
fund. This rule provides the terms, conditions, and procedures for 
seeking approval of a reclamation phase and release of performance 
security and the criteria and schedule for release of performance 
security.

1501:13-7-06: Performance Security Forfeiture Criteria and Procedures

    With regard to forfeiture procedures, this rule was revised to 
provide that, should the permittee fail to enter into a reclamation 
agreement or fail to comply with the terms of the reclamation agreement 
and a trust fund was the performance security filed with the

[[Page 8195]]

division, the forfeiture order shall inform the permittee that the 
state will proceed as set forth in the terms of the trust agreement.
    A paragraph was removed that provided that if during the forfeiture 
reclamation conducted by the state it appears that the cost of 
reclamation is greater than the performance bond filed for the 
incremental area and if there remains on file with the Chief 
performance bond for other incremental areas which have not already 
been forfeited, then the Chief may proceed to declare forfeit the 
remaining bond and collect monies under the bond up to an amount equal 
to the difference between the actual costs of reclamation and monies 
already collected. New language was added to the section to clarify 
that the Chief shall order forfeiture of all remaining performance 
security on deposit for the permit.

1501:13-7-06.1: Tax Credit for Reclamation Outside an Applicant's 
Permit Area

    This is a new rule that applies to a permittee providing 
performance security together with reliance on the reclamation 
forfeiture fund who wishes to claim a tax credit under Section 5749.1 
of the Revised Code. This rule sets forth the terms and conditions 
under which the Chief may approve an application to perform reclamation 
and establishes eligibility and application requirements for permittees 
applying for a tax credit. It also establishes procedures for obtaining 
the tax credit once reclamation is completed.

1501:13-7-08: Reclamation Phase Approval Conference and Performance 
Security Release Conference

    With regard to reclamation phase approval and performance security 
release, this section heading was changed to clarify that this rule 
applies to reclamation phase approval conferences in addition to 
performance security release conferences. With regard to the procedures 
for requesting such releases, this rule was revised to establish a 
reclamation approval conference since reclamation can be approved on 
portions of permits or incremental mining units without a release of 
performance security on sites under full-cost performance security.

1501:13-9-01: Signs and Markers

    With regard to signs and markers, this rule was revised to clarify 
that perimeter markers must be placed to clearly define the perimeter 
so that adjacent markers are visible by a person standing at any other 
marker along the perimeter. Markers must be maintained until final 
grading is approved.

1501:13-9-03: Topsoil Handling

    With regard to the topsoil to be salvaged and removed before any 
drilling for blasting, mining, spoil, or other surface disturbances, 
this rule was revised to provide the conditions for which the Chief may 
choose not to require the removal of topsoil for minor disturbances 
that occur at the site of small structures, such as power poles, signs, 
or fence lines, or will not destroy the existing vegetation and will 
not cause erosion. With regard to final grading and replacement of 
topsoil, this rule was revised to provide that final grading shall 
follow the completion of backfilling and rough grading with a timeframe 
that will allow replacement of topsoil or approved resoiling materials 
to begin and be completed during either the current normal period for 
favorable planting or at the start of the first appropriate normal 
period for favorable planting following final grading, whichever occurs 
first. It also provides that resoiling shall begin, continue reasonably 
uninterrupted, and be completed prior to the end of the normal period 
for favorable planting unless the permittee receives an extension of 
time limit because of climatic conditions. With regard to final grading 
and replacement of topsoil and soil thickness, this rule was revised to 
clarify that topsoil or approved alternative resoiling materials shall 
be redistributed in a manner that achieves an approximately uniform, 
stable thickness when consistent with the postmining land use, 
contours, and surface-water drainage systems. Soil thickness may also 
be varied to the extent such variations help meet the specific 
revegetation goals identified in the permit.

1501:13-9-06: Use of Explosives

    With regard to the general provisions of the use of explosives, 
this rule was revised to provide that blasts that use more than five 
pounds of explosive or blasting agent shall be conducted according to 
the schedule required. With regard to how blasting operations shall be 
conducted, this rule was revised to clarify that in addition to a 
certified blaster, a member of the blasting crew under the direct 
supervision of the certified blaster may detonate a blast. With regard 
to who shall be responsible for controlling access to the blasting area 
to prevent the presence of livestock or unauthorized persons at least 
ten minutes before each blast, this rule was revised to delete 
references to the ``permittee'' and include references to ``certified 
mine foreperson'' because that is the person responsible for 
controlling access to the blasting area. With regard to blasting 
occurring within one-half mile of any public or private institution, 
this rule was revised to clarify that notification to an institution 
occurs on the same day of a blast instead of the day before. With 
regard to the definition of flyrock, this rule was revised to provide 
that debris does not include dust. The rule concerning flyrock being 
cast beyond the permit boundary was revised to require initial 
telephone notification to the Division of Mineral Resources Management 
within two hours, followed by a more detailed written report within 
three days. The rule regarding airblasts was revised to require that 
maximum levels not exceed 133 decibels (except as authorized). With 
regard to seismic measuring systems, this rule was revised to replace 
existing provisions regarding seismic measuring systems with more 
detailed seismograph specifications to match current technology. The 
rule regarding blast records was revised to clarify the data required 
in blast records, to match current technology, and more clearly 
document how a blast was designed. With regard to when bulk-loaded 
explosives are used, this rule was revised to provide that the blast 
record data for bulk-loaded explosives must be completed no more than 
24 hours after the blast is detonated. The rule regarding maximum 
ground vibration was revised to refer to the frequency-dependent 
particle velocity limits that are being added through the chart. With 
regard to frequency-dependent particle velocity limits, a new chart was 
added that establishes frequency-dependent particle velocity limits 
using the Bureau of Mines' alternative blasting level criteria, which 
have become the standard of comparison for blasting seismology 
consultants and the legal community. The rule for protected structures 
and facilities was changed to clarify the types of structures and 
facilities within 300 feet that are protected. With regard to 
seismographic records, ``scaled-distance'' was changed to ``scaled 
distance'' and ``Ds'' was changed to ``SD'' to reflect standard 
industry usage. The term ``eight-millisecond period'' was changed to 
``period less than eight milliseconds'' to clarify the requirements.

1501:13-9-10: Training, Examination, and Certification of Blasters

    With regard to the certified blaster examination, this rule was 
revised to require 40 hours of training for initial blaster 
certification instead of 30 hours.

[[Page 8196]]

The section on certification and recertification was revised to clarify 
that, in addition to the Chief, an agency, board, or institution 
authorized by the Chief may provide certification. It also provides 
that each person approved for certification shall receive a certificate 
suitable for office display and a wallet-size identification card. The 
certificate and identification card shall include, at a minimum, the 
type of certification, the person's name, certification number and date 
of expiration, and the name and signature of the Chief or of the 
official of the authorized agency, board, or institution granting the 
certification.

1501:13-9-13: Contemporaneous Reclamation

    With regard to contemporaneous reclamation, this rule was revised 
to provide that highwall mining is added to the language regarding 
auger mining timing requirements. With regard to final grading and 
replacement of topsoil, seeding and planting, and tree planting, this 
rule was revised to provide a timing element for each phase of 
reclamation. With regard to the Chief's granting additional time for 
backfilling and rough grading, this rule was revised to provide the 
requirements for requesting a permit revision including minimum 
criteria that must be provided to justify additional time.

1501:13-14-02: Enforcement

    With regard to when the Chief has issued a cessation order for 
failure to abate a violation of the contemporaneous reclamation 
requirements, and performance security was provided together with 
reliance on the reclamation forfeiture fund, this rule was revised to 
add that the Chief may require the permittee to increase the amount of 
performance security for the permit from $2,500 per acre to $5,000 per 
acre of land. This rule was also revised to provide that the Chief may 
determine the amount of performance security increase depending on the 
status of reclamation at the site. In addition, if the Chief orders the 
permittee to increase the amount of performance security, the Chief 
shall also order the permittee to show cause why the permittee has the 
ability to comply with the requirements. If the Chief orders the 
permittee to increase the amount of performance security, the increased 
performance security shall remain in effect for the permit, including 
all future acreage of the permit, until the Chief determines that the 
amount of performance security may be reduced. A reduction in the 
amount of performance security shall not be considered release of 
performance security.

1501:13-14-05: Informal Conferences

    With regard to requests for informal conferences, this rule was 
revised to clarify and include that the permittee may request an 
informal conference on a proposed performance security adjustment in 
addition to requesting that the Chief hold an informal conference on 
the application for a permit or application for significant revision or 
renewal of a permit. It also provides that the request shall be filed 
with the Chief not later than 30 days after receipt by the permittee of 
the proposed performance security adjustment. With regard to the 
timeliness of an informal conference, this rule has been revised to add 
the provision that the Chief hold an informal conference within a 
reasonable time, not to exceed 60 days following the close of the 
comment period for a permit application or significant revision or 
renewal or within a reasonable time, not to exceed 60 days following 
receipt by the permittee of a performance security adjustment. It was 
also revised to provide that if the informal conference has been held, 
the Chief shall issue and furnish the applicant for a permit, persons 
who participated in the informal conference, and persons who filed 
written objections, with the written finding of the Chief granting or 
denying the permit in whole or in part and stating the reasons 
therefore within 60 days of the conference.

Reclamation Forfeiture Fund Advisory Board Information

    Included in this submission are two reports, dated June 2009 and 
June 2011, providing an actuarial analysis of the Reclamation 
Forfeiture Fund (Fund) along with letters from the Reclamation 
Forfeiture Fund Advisory Board (Board) to the Governor of Ohio dated 
June 2009 and June 2011 regarding the Reclamation Forfeiture Fund and 
the actuarial analysis.
    Actuarial Analysis Reports: The 2009 and 2011 actuarial analysis 
reports were the result of the Board's commission of Pinnacle Actuarial 
Resources, Inc. to prepare an analysis of the Fund. The 2009 actuarial 
analysis report made similar findings to the 2011 report using a 
somewhat different analytical approach, but reported a higher amount of 
expected risk to the Fund. Since the 2011 report is the most current, 
we have summarized it below for purposes of this notice.
    The 2011 report concluded that the Fund is solvent on a short-term 
basis, as the current Fund assets exceed the current Fund's outstanding 
liabilities and obligations for forfeited reclamation projects. For 
longer-term solvency, the measurement compares the current available 
Fund's assets to the Fund's long-term expected exposure or liability. 
The reviewers do not believe that the Fund currently meets the criteria 
for long-term solvency, nor do scenario projections of future revenues 
fully place it in a compliant basis for some period of time into the 
future. There is currently a mismatch between the revenues collected 
and the future exposure to reclamation forfeiture for which this 
revenue and accumulated capital is needed. The report further 
concludes: ``Based upon the methodology and assumptions * * *, we have 
estimated the present value of expected liability of $32.254 million.'' 
The report further states: ``In actuarial and insurance regulatory 
language, the Fund has significant risk of material adverse deviation 
from the estimated expected loss.''
    Reclamation Forfeiture Fund Advisory Board Recommendations: The 
Board sent a letter to the Governor of Ohio on June 27, 2011, and did 
not recommend changes to the severance tax rates. The Board felt that 
more time was necessary to study the effectiveness of the present 
revenue structure to meet the requirements of the Fund. The letter 
outlined the key points concerning the review of the report, which 
included that the Fund is adequate to address the small current 
forfeiture liabilities; the current liabilities were estimated to be 
less than $100,000 and the fund had $9.92 million as of June 15, 2011; 
the backlog of forfeited sites was reclaimed at the end of calendar 
year 2010, with only small maintenance costs remaining; the Fund never 
received $5 million from the legislature in 2007 to eliminate the 
backlog of forfeitures as intended by House Bill 443; the actuarial 
study projects various financial liability scenarios into the future; 
the study concludes that the Fund may have longer-term solvency issues 
in the future, based on two of the three projected scenarios; the 
Division of Mineral Resources Management continues to do a very good 
job of fulfilling their duties in regulating the coal industry's 
performance regarding contemporaneous reclamation of permitted sites 
and of overseeing the reclamation of forfeited sites; generally 
speaking, the Ohio coal industry's financial strength and attention to 
good reclamation practices have improved over the past five to ten 
years; and since the Fund may have a longer-term

[[Page 8197]]

solvency issue, an abundance of caution dictates that the Board review 
the Fund's status next year. The Board recommended that an updated 
actuarial study be prepared in conjunction with the biennial report due 
to the Governor in 2013. In 2009, the Board asked DMRM to provide an 
analysis of Alternative Bonding Systems (ABS) conducted in other coal 
mining states. With the assistance of Pinnacle studying ABS systems in 
West Virginia and Kentucky, the Board believes that Ohio's ABS is at 
least as effective as those systems; the Board believes that a 
reasonable timeframe to reclaim forfeited sites is in the range of 
three to five years; should one of the largest five permit holders 
become insolvent, the Fund would likely be inadequate to allow 
reclamation within the 3 to 5-year range; and the Board will continue 
to study the model prepared by Pinnacle to refine, improve, and monitor 
this model of the Fund's inadequacy.
    The full text of the program amendment is available for you to read 
at the locations listed above under ADDRESSES.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the submission satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Ohio program.

Electronic or Written Comments

    If you submit written comments, they should be specific, confined 
to issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent state or 
Federal laws or regulations, technical literature, or other relevant 
publications. We cannot ensure that comments received after the close 
of the comment period (see DATES) or sent to an address other than 
those listed above (see ADDRESSES) will be included in the docket for 
this rulemaking and considered.

Public Availability of Comments

    Before including your address, phone number, email 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 may 
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. We will not consider anonymous comments.

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 
February 29, 2012. If you are disabled and need reasonable 
accommodations to attend a public hearing, contact the person listed 
under FOR FURTHER INFORMATION CONTACT. 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.

Public Meeting

    If there is only limited interest in participating in a public 
hearing, we may hold a public meeting rather than a public hearing. If 
you wish to meet with us to discuss the submission, 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 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSM for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
conclude our review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the rulemaking process and include them 
in the final rule.

List of Subjects in 30 CFR Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 23, 2011.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2012-3424 Filed 2-13-12; 8:45 am]
BILLING CODE 4310-05-P


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