[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Proposed Rules]
[Pages 46346-46349]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19049]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-254-FOR; Docket ID OSM-2012-0012]
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
-----------------------------------------------------------------------
SUMMARY: We are announcing receipt of a proposed amendment to the Ohio
regulatory program under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act). Ohio's proposed amendment updates the Ohio
Administrative Code (OAC) to address issues raised by OSM regarding
consistency of Ohio's surface mining program with the final Federal
rule relative to Ownership and Control, Permit and Application
Information and Transfer, and Assignment or Sale of Permit Rights,
which became effective December 3, 2007. The proposed amendment
specifically alters the following regulations within the OAC:
Definitions; Incorporation by reference; Permit applications,
requirements for legal, financial, compliance, and related information;
Permit applications, revisions, and renewals, and transfers,
assignments, and sales of permit rights; Improvidently issued permits;
and Enforcement and Individual civil penalties. By submittal of this
proposed amendment, Ohio intends to revise its approved program
pursuant to the additional flexibility afforded by the revised Federal
regulations and SMCRA, as amended, to ensure Ohio's proposed regulatory
provisions are no less effective than the corresponding regulations.
This document provides the times and locations that the Ohio program
and proposed amendment are available for public inspection, the comment
period during which you may submit written comments on this amendment,
and the procedures that we will follow for the public hearing, if one
is requested.
DATES: We will accept written comments on these amendments until
[[Page 46347]]
4:00 p.m., Eastern Standard Time (EST) September 4, 2012. If requested,
we will hold a public hearing on the amendment on August 28, 2012. We
will accept requests to speak at a hearing until 4:00 p.m., EST on
August 20, 2012.
ADDRESSES: You may submit comments, identified by SATS No. OH-254-FOR
by any of the following methods:
Mail/Hand Delivery: Mr. Ben Owens, Acting Chief,
Pittsburgh Field Division, Office of Surface Mining Reclamation and
Enforcement, 4605 Morse Road, Rm. 102, Columbus, Ohio 43230.
Fax: (614) 416-2248.
Federal eRulemaking Portal: The amendment has been
assigned Docket ID OSM-2012-0012. If you would like to submit comments,
go to http://www.regulations.gov and follow the instructions.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. 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: For access to the docket to review copies of the Ohio
regulations, this amendment, a listing of any scheduled public
hearings, and all written comments received in response to this
document, you must go to the address listed below during normal
business hours, Monday through Friday, excluding holidays. You may
receive one free copy of the amendments by contacting OSM's Pittsburgh
Field Division Office; or you can view the full text of the program
amendment available for you to read at www.regulations.gov.
In addition, you may review a copy of the amendment during regular
business hours at the following locations:
Ben Owens, Acting Chief, Pittsburgh Field Division, Office of Surface
Mining Reclamation and Enforcement, 4605 Morse Road, Room 102,
Columbus, OH 43230, Telephone: (614) 416- 2238, Email:
bowens@osmre.gov;
Lanny E. Erdos, Chief, Division of Mineral Resources Management, Ohio
Department of Natural Resources, 2045 Morse Road, Building H-2,
Columbus, Ohio 43229-6693, Telephone: (614) 265-6893, Email:
Lanny.Erdos@dnr.state.oh.us, Fax: (614) 265-7999.
FOR FURTHER INFORMATION CONTACT: Ben Owens, Acting Chief, Pittsburgh
Field Division; Telephone: (614) 416-2238. Email: bowens@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program
II. Description and Submission of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Ohio Program
Section 503(a) of SMCRA 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
conditionally approved the Ohio program effective August 16, 1982. You
can find background information on the Ohio program, including the
Secretary's findings, the disposition of comments, and the conditions
of approval of the Ohio program in the August 16, 1982, Federal
Register (41 FR 34688). You can also find later actions concerning
Ohio's program and program amendments at 30 CFR 935.11, 935.12, 935.15,
and 935.16.
II. Description and Submission of the Proposed Amendment
Following the approval of Federal rule, ``Ownership and Control;
Permit and Application Information; Transfer, Assignment, or Sale of
Permit Rights; Final Rule'' on December 7, 2007 (72 FR 68000). OSM
performed a side-by-side comparison of Ohio's regulations to ensure the
OAC provisions were no less effective than the Federal regulations. OSM
and Ohio discussed the implementation of Ohio regulations and potential
revisions. Ohio, in a letter dated September 25, 2009, (Administrative
Record Number OH 2190-01) responded to the findings from the OSM side-
by-side analysis, described Ohio's plan to address provisions that were
determined to be less effective than the Federal regulations, and
stated a proposed amendment would be submitted to OSM. By letter dated
March 30, 2012, (Administrative Record Number OH 2190-01), Ohio sent
OSM a request to approve six revised regulations. Key provisions of the
proposed amendment add the definitions of ``knowingly,'' ``transfer,
assignment, or sale of permit rights,'' and ``violation'' to the OAC;
require enhanced identification of interests; a provision for a central
repository documenting identification of interests; and alteration for
the determination of an improvidently issued permit. The following is a
summary of the revisions and additions to OAC:
1501:13-1-02. Definitions
Changes have been made to reflect the absence of ``knowing'' or
``knowingly'' from the OAC definition section. This term has been added
to conform to the Federal definition defined in 30 CFR 701.5.
Additionally, the proposed amendment alters the definition in other
sections of the OAC. The thrust of the change is the substitution of
the word ``individual'' formerly used by Ohio, to the usage of
``person'' as utilized in the Federal regulations.
Ohio has added the definition of ``[t]ransfer, assignment, or sale
of permit rights'' to the definition section. Ohio's definition of this
term contemplates any change of a permittee, including any fundamental
legal change in the structure or nature of the permittee or a name
change.
The definition of ``violation'' has been added for the purposes of
the following OAC sections:
Permit applications; requirements for legal, financial,
compliance and related information;
Review, public participation, and approval or disapproval
of permit applications and permit terms and conditions; and
Improvidently issued permits.
Violation is defined as any of the following:
Written notification from a governmental agency
identifying a failure to comply with applicable Federal or state law or
regulations relative to environmental air or water protection;
Noncompliance identified by the Chief of the Division of
Mineral Resources Management, OSM, or a comparable authority, pursuant
to the federal or state regulatory program. Notice of this
noncompliance may be given via a notice of violation, cessation order,
final order, bill or demand letter relative to a delinquent civil
penalty; a bill or demand letter relative to delinquent reclamation
fees or a performance security or bond forfeiture order.
The definition of ``violation notice'' has been altered to apply to
the following OAC sections:
Permit applications; requirements for legal, financial,
compliance and related information;
[[Page 46348]]
Review, public participation, and approval or disapproval
of permit applications and permit terms and conditions; and
Improvidently issued permits.
A violation notice is now defined as a written notification from a
regulatory authority or other governmental entity of a violation, as
defined in this section. This change reflects the language used to
define this term in 30 CFR 701.5.
1501:13-14-02. Enforcement
Section (A)(8) has been revised to require any permittee, within
thirty days of the issuance of a cessation order, to provide accurate
and current identification of interest information as defined in the
Permit applications; requirements for legal, financial compliance and
related information sections of the OAC. Formatting changes were made
to reflect changes in numbering.
1501: 13-14-06 Individual Civil Penalties
Revisions were made to remove the definition of ``knowingly'' from
this section. Consequently, formatting changes were required to account
for the elimination of this definition.
1501: 13-4-03. Permit Applications; Requirements for Legal, Financial,
Compliance and Related Information
Grammar and formatting changes are present that do not alter the
meaning or intent of the OAC as previously structured. Multiple changes
have been made to incorporate all inclusive gender reference.
In addition, sections (B)(2) and (3) have been altered to require
submission of addresses for all owners of record, holders of record of
any leasehold interests, and any purchasers of record of the property
to be mined. Previously this requirement did not require address
submission. The alteration expands the requirements for providing
addresses in order to encompass all aspects of interest.
This section is further revised to require submission of data when
a departure or change of an individual named in a permit application
occurs.
Section (C)(1) requires violation history relative to an operator
be provided in the permit application. Previously, the applicant was
the only individual required to submit this information.
Section (C)(2) requires date of suspension, revocation, or
forfeiture.
Section (C)(3) also adds a provision requiring all applications to
include a listing of any cessation order or notice of violation in
instances when the abatement period has not expired.
Section (C)(4) requires a certification by the Federal or state
regulatory authority issuing the notice of violation or cessation order
confirming the violation has been abated or corrected is required. This
provision does not interfere with the requirement in (C)(4)(f) that all
violations and cessation orders having an expired abatement period must
still provide information as to the action taken to abate or correct
the violation or cessation order.
Under (C)(4) the addition of ``Central file for identity
information,'' allows applicants or permittees to provide requisite
information in a streamlined method whereby all information required in
the Permit applications, revisions and renewals and transfers,
assignments and sales of permit rights provisions, as outlined in OAC
sections 1501:13-4-06 and 1501:13-5-01, are submitted to the Chief of
the Division of Mineral Resources Management and are applicable to all
permits held by that applicant or permittee. These items will be
maintained in a central file for reference in the event of any
subsequent submission. To participate, applicants or permittees must
submit a sworn or affirmed oath, in writing, verifying all the
information is accurate and complete. The central file will be
maintained for reference, eliminating the need to provide identity
information in each application. The file will be available for public
review upon request. This information shall be maintained and updated.
In the event a permittee or applicant has an established central
file, certification shall be made that the file is accurate and
complete when submitting permit applications, revisions, renewals,
transfers, assignments, and sales of permits rights in accordance with
1501:13-4-06. Upon submission, the permittee shall submit a
certification, provided by the Chief of the Division of Mineral
Resources Management swearing or affirming the information is accurate,
complete, and updated. This must be in the form of a written oath. Any
information that is missing, as required by the provisions set forth
herein, must be submitted and accompanied by a written oath as
described relative to providing an affirmation of a complete
information repository.
Throughout the regulations reference to the proposed central
repository for identification information is referenced and
incorporated.
1501:13-4-06. Permit Applications Revisions, and Renewals, and
Transfers, Assignments and Sales of Rights
The amendment proposes to alter Section (I) by adding a provision
requiring notification within 30 days of any addition, departure or
change in the structure. This must be done in writing and must include
any person's name, address, telephone number, title, and relationship
to the applicant, including percentage of ownership, interest and
position within the organizational structure. Information detailing
commencement and departure are also required.
1501:13-5-02. Improvidently Issued Permits
Pursuant to the proposed amendments, should the Chief of the
Division of Mineral Resources Management have reason to believe a coal
mining and reclamation permit was improvidently issued, then he or she
shall make a preliminary finding indicating improvident issuance if:
A determination based on the permit eligibility, in effect
at the time of issuance, indicates either:
(a) The permit should not have been issued due to an unabated or
uncorrected violation or
(b) The permit was issued based on the presumption that a violation
was in the process of being corrected;
The violation remains unabated or uncorrected and the time
frame for appeal is expired or a payment schedule, as approved, is not
being complied with as ordered;
Ownership or control existing at the time of issuance
demonstrates a link to the violation and remains in effect, or if the
link was severed, the permittee continues to be responsible for the
violation.
Upon a preliminary finding of an improvidently issued permit, the
Chief may serve the permittee with written notice establishing a prima
facie case indicating the permit was improvidently issued. Within
thirty days, the permittee may request an informal review and may
provide evidence to the contrary.
Section (C) augments references to abatement of a violation by
adding the term ``correction.''
Section (D) allows the Chief of the Division of Mineral Resources
Management to suspend a permit as opposed to the previous regulation
granting only the right to rescind the permit. Moreover, the proposed
amendment provides that, upon a determination indicating the permit was
improvidently issued, the Chief shall serve the permittee notice of the
[[Page 46349]]
proposed suspension and rescission which includes the reasons for the
finding and stipulates within sixty days the permit will be suspended,
or in one hundred and twenty days, the permit will be rescinded, unless
the permittee submits rebuttal proof and the Chief finds:
The previous determination was incorrect;
The violation is under appeal and an initial judicial
decision affirming the violation is absent;
The violation is subject to an approved abatement,
correction plan or payment schedule;
Ownership or control is severed and no continuing
responsibility is apportioned to permittee; or
An appeal as to ownership or control exists and an initial
judicial decision affirming such ownership or control is absent.
The proposed amendment eliminates previous provisions allowing
automatic suspension within ninety days upon proper showing.
In the event the permit is deemed suspended or rescinded the Chief
shall immediately order the cessation of coal mining and reclamation
operations and post written notice of the cessation order at the
Division of Mineral Resources Management District Office closest to the
permit area.
1501: 13-1-14. Incorporation by Reference
The Web site provided in the proposed amendment updates the public
to ensure access to federal regulation references. The revised Web site
is www.gpo.gov/fdsys/.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether Ohio's proposed amendment satisfies the applicable
program approval criteria of 30 CFR 732.15. If we approve the
amendment, it will become part of Ohio's 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 (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 comments, you should be
aware that your entire comments, including your personal identifying
information, may be made publicly available at any time. While you can
ask us in your comments 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 4:00 p.m., EST, on
August 20, 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 a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the 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 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; 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: June 8, 2012.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2012-19049 Filed 8-2-12; 8:45 am]
BILLING CODE 4310-05-P