[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Proposed Rules]
[Pages 46346-46349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19049]



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), 

ACTION: Proposed rule; public comment period and opportunity for public 


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

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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: 
[email protected];
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: 
[email protected], Fax: (614) 265-7999.

FOR FURTHER INFORMATION CONTACT: Ben Owens, Acting Chief, Pittsburgh 
Field Division; Telephone: (614) 416-2238. Email: [email protected].

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 
    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;

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     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 
    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 
    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 

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 
    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 
    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]