Rule2026-16136
Ohio Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 7, 2026
Effective
September 8, 2026
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
The Office of Surface Mining Reclamation and Enforcement (OSM), is approving, in part, two amendments to the Ohio regulatory program (the Ohio program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). As proposed by Ohio, the amendment involves statutory and regulatory changes to its bonding program (i.e., revising Ohio's alternative bonding system and providing the option for an applicant to post full-cost performance securities) and also includes statutory and regulatory changes pertaining to other subjects, such as abandoned mine land program funding, permitting standards, valid existing rights, remining, blasting, and topsoil handling. Ohio submitted this amendment, in part, to satisfy a program condition related to bonding inadequacies. We are removing this program condition.
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<title>Federal Register, Volume 91 Issue 151 (Friday, August 7, 2026)</title>
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[Federal Register Volume 91, Number 151 (Friday, August 7, 2026)]
[Rules and Regulations]
[Pages 51324-51358]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-16136]
[[Page 51323]]
Vol. 91
Friday,
No. 151
August 7, 2026
Part IV
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 935
Ohio Regulatory Program; Final Rule
Federal Register / Vol. 91 , No. 151 / Friday, August 7, 2026 / Rules
and Regulations
[[Page 51324]]
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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 No. OSM-2011-0003; SATS No. OH-262-FOR;
Docket No. OSM-2019-0006; S1D1S SS08011000 SX064A000 261S180110;S2D2S
SS08011000 SX064A000 26XS501520]
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; partial approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement
(OSM), is approving, in part, two amendments to the Ohio regulatory
program (the Ohio program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). As proposed by Ohio, the
amendment involves statutory and regulatory changes to its bonding
program (i.e., revising Ohio's alternative bonding system and providing
the option for an applicant to post full-cost performance securities)
and also includes statutory and regulatory changes pertaining to other
subjects, such as abandoned mine land program funding, permitting
standards, valid existing rights, remining, blasting, and topsoil
handling. Ohio submitted this amendment, in part, to satisfy a program
condition related to bonding inadequacies. We are removing this program
condition.
DATES: The effective date is September 8, 2026.
FOR FURTHER INFORMATION CONTACT: Thomas J. Koptchak, Field Office
Director, Pittsburgh Field Office, Office of Surface Mining Reclamation
and Enforcement, 3 Parkway Center, Pittsburgh, PA 15220; Telephone:
(412) 937-2827; Fax: (412) 937-2177; Email: <a href="/cdn-cgi/l/email-protection#9beff0f4ebeff8f3faf0dbd4c8d6b5fcf4ed"><span class="__cf_email__" data-cfemail="c9bda2a6b9bdaaa1a8a289869a84e7aea6bf">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Statutory and Executive Order Reviews
I. Background on the Ohio Program
A. General
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 approved State program includes, among other things, State laws and
regulations that govern surface coal mining and reclamation operations
in accordance with the Act and that are consistent with the Federal
regulations. See 30 U.S.C. 1253(a)(1) and (7). Based on 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 10, 1982 Federal Register (47 FR 34688). You can also find later
actions concerning Ohio's regulatory program and program amendments at
30 CFR 935.11, 935.12, 935.15, and 935.16.
B. Ohio Bonding Program
We announced conditional approval of Ohio's bonding provisions
(bonding program) in the August 10, 1982, Federal Register (47 FR
34688) (Finding 18). In lieu of approving a bonding program requiring
permittees to submit permit-specific performance bonds covering the
full cost of reclamation for coal mining operations, we approved Ohio's
request to employ an alternative bonding system (ABS), as provided by
section 509(c) of SMCRA and 30 CFR 800.11(e). According to section
800.11(e), an ABS may be authorized if the following two conditions are
met: (1) it would assure that sufficient money is available for the
regulatory authority to complete the reclamation plan for any areas
that may be in default at any time; and (2) it would provide a
substantial economic incentive for the permittee to comply with all
reclamation provisions.
Ohio's ABS involves a flat-rate, per-acre performance bond in
addition to monies deposited into a bond pool (Reclamation Forfeiture
Fund), which is funded primarily by a cash severance tax collected from
the permittees who elect to participate in the program. Permittees
participating in the bond pool are required to post a flat rate
performance bond of $2,500/acre for surface mining reclamation. We
conditionally approved the bonding provisions but required changes to
be made to Ohio's regulatory program, as codified at 30 CFR
935.11(h)(1), Conditions of State regulatory program approval.
C. OSM's Conditional Approval of Ohio's Bonding Program
The program condition that can be found at 30 CFR 935.11(h)(1)
required Ohio to submit a program amendment that demonstrates how the
ABS will ensure timely reclamation at mining sites for which a bond has
been forfeited. On May 4, 2005, in accordance with 30 CFR 733.12(b), we
sent Ohio's Department of Natural Resources (ODNR) a letter (referred
to as a 733 letter) (Administrative Record No. OH-2185-00) referencing
the program condition. The 733 letter required Ohio to submit the
program amendment required by 30 CFR 935.11(h)(1) or potentially have
the Secretary withdraw approval of the State program in whole or in
part.
II. Submission of the Amendment
A. Submissions
We communicated with Ohio from 2007-2011 through workgroups,
meetings, and letters to discuss concerns and the steps being taken to
address the issues identified in the 1982 conditional approval and the
733 letter we sent in 2005. After those communications, Ohio enacted
legislation adding and revising statutory provisions and added related
regulatory provisions to address the issues identified in our
conditional approval and the 733 letter. Ohio submitted these changes
as program amendments on five separate occasions as described below.
Further description and discussion of the submitted provisions are in
the Findings section of this document.
1. March 6, 2007 Submission: By letter dated March 6, 2007
(Administrative Record No. OH-2185-28), Ohio sent us an amendment to
its program, known by Ohio as Program Amendment 82 (PA 82). PA 82 was
primarily intended to satisfy the program condition that is found at 30
CFR 935.11(h)(1), which is related to Ohio's ABS and was supported by
changes that were included in Ohio House Bill 443 (HB 443) (approved
January 4, 2007), 2006 Ohio Laws 189. The submission includes statutory
changes to Chapter 1513, Coal Surface Mining, and Chapter 5749,
Severance Tax, of the Ohio Revised Code (ORC). The submission also
includes statutory provisions involving other matters, such as
regulatory and Abandoned Mine Land (AML) program funding and permitting
procedures for determining the potential for acid mine drainage.
2. July 27, 2009 Submission: By letter dated July 27, 2009
(Administrative Record No. OH-2185-49), Ohio sent us an amendment to
its program, referring to it as an update of their March 6, 2007,
submission of PA 82. The submission includes: (1) statutory changes to
ORC Chapter 1513 that resulted from three legislative actions,
including portions of House Bill 119 (HB 119) (approved June 30, 2007),
2007 Ohio Laws 15; Senate Bill 386 (SB 386) (approved January 6,
[[Page 51325]]
2009), 2008 Ohio Laws 139; and Senate Bill 73 (SB 73) (approved June
15, 2009), 2009 Ohio Laws 2; (2) regulatory changes to Chapter 1501,
Department of Natural Resources, Administration and Director, of the
Ohio Administrative Code (OAC); (3) an opinion from the chief legal
counsel for Ohio's Division of Mineral Resources Management (DMRM)
regarding the cap on liability of Ohio's alternative bonding system;
and (4) a 2009 actuarial report analysis of Ohio's bond pool. Because
additional changes were forthcoming and at the State's request, we did
not process this submission as a separate program amendment.
3. April 1, 2011 Submission: By letter dated April 1, 2011
(Administrative Record No. OH-2185-54), Ohio sent us an amendment to
its program, referring to it as an update of their previous submittals
dated March 6, 2007, and July 27, 2009. This submission includes
changes to statutory and regulatory provisions regarding performance
bonds on coal mining operations as effected by HB 443. In addition to
these changes, Ohio added or changed statutory and regulatory
provisions pertaining to topics such as valid existing rights,
remining, abandoned mine lands, blasting, and topsoil handling, among
others. The submission includes: (1) statutory changes to ORC Chapters
1513 and 5749 that were affected by HB 119 and SB 73, as well as Senate
Bill 181 (SB 181) (approved June 13, 2010), 2010 Ohio Laws 47; and
House Bill 163 (HB 163) (approved June 30, 2011), 2011 Ohio Laws 36;
(2) regulatory changes to OAC Chapter 1501; and (3) and an actuarial
report analysis of Ohio's Reclamation Forfeiture Fund submitted in July
2009. Ohio also provided agency guidance documents with their
submission for the purposes of adding clarity and support and are not
considered part of this amendment.
4. July 26, 2011 Submission: By letter dated July 26, 2011
(Administrative Record No. OH-2185-61), Ohio sent us an amendment to
its program, referring to it as an update to their previous submittals
of March 6, 2007, July 27, 2009, and April 1, 2011. The amendment
includes: (1) statutory changes to ORC Chapter 1513 as effected by
House Bill 163; and (2) a 2011 actuarial report on the Reclamation
Forfeiture Fund.
5. April 11, 2019 Submission: By letter dated April 11, 2019
(Administrative Record No. OH-2198), Ohio sent us an amendment to its
program, known by Ohio as Program Amendment 87 (PA 87). This amendment
includes a regulatory definition of ``transfer, assignment, or sale of
permit rights'' at OAC Chapter 1501:13-1, Division of Mineral Resources
Management-Coal, Administrative Procedures, that is related to a
bonding provision that was submitted for approval under the April 1,
2011 submission. Because the amendments are interrelated, we are
incorporating the April 2019 submission into this notice, as summarized
below.
With this notice, we are issuing decisions on the provisions of all
five submissions. In the Findings section that follows, we describe the
substantive changes to the Ohio program as a result of these
submissions. Please note, as further described in Section III.C, some
provisions have been rescinded/reversed or are being addressed in other
State program amendment submittals. In addition to these substantive
changes, editorial changes to the Ohio program were also included in
the submissions. Editorial changes include: changes of address;
inclusion of website addresses; changes in division names and titles;
correction of typographical errors; chapter titles; paragraph
references; citations; use of the phrase ``performance security''
rather than the term ``bond;'' inclusion of reference to the National
Register of Historic Places; a name change to ``reclamation
commission;'' use of the terms ``applicant'' and ``permittee'' rather
than ``operator'' to clarify obligations and responsibilities; and the
incorporation by reference to dates of Federal regulations and Federal
laws. We do not make specific findings regarding all of these editorial
changes, such as those included in ORC 1513.071, ORC 1513.17, and ORC
1513.37, which are not otherwise referenced in this notice, but we
state here that those changes do not impact the compliance of the
approved program with SMCRA.
B. Public Notice
We announced receipt, opened the public comment period, and
provided an opportunity for a public hearing or meeting on the adequacy
of the five submissions on three occasions:
1. April 30, 2007: We announced receipt of the March 6, 2007,
program amendment submission in the April 30, 2007, Federal Register
(72 FR 21176) (Administrative Record No. OH-2185-32). We reference this
document as SATS No. OH-252.
2. February 14, 2012: We reopened the comment period to announce
receipt and incorporate the three program amendment submission updates
(July 27, 2009, April 1, 2011, and July 26, 2011) that Ohio made to its
initial 2007 program amendment submission in the February 14, 2012,
Federal Register (77 FR 8185) (Administrative Record No. OH-2185-65).
We referenced this document as Docket No. OSM-2011-0003, SATS No. OH-
252.
3. September 5, 2019: We announced receipt of the April 11, 2019,
program amendment submission in the September 5, 2019, Federal Register
(84 FR 46703) Administrative Record No. OH-2198-05). We reference this
document as SATS No. OH-262.
All public comments received from these proposed rule notices are
addressed in the Public Comments section of this notice. No public
hearing or meeting was requested.
C. Actuarial Analysis Reports
Ohio included actuarial analysis reports as part of two program
amendment submissions (2009 and 2011). Ohio also provided us with
copies of subsequent actuarial analysis reports for 2015, 2017, 2019,
2021, 2023, and 2025. The actuarial reports provide information,
analysis of Ohio's bond pool, and recommendations about the fiscal
condition of Ohio's bond pool for the previous two-year time period as
prepared by Pinnacle Actuarial Resources (2009, 2011, 2015, 2017, and
2019, and 2025 reports) and Taylor & Mulder (2021 and 2023 reports).
These reports were used by Ohio and the Reclamation Forfeiture Fund
Advisory Board (RFFAB or Board) to make recommendations to the Governor
about the solvency of the Reclamation Forfeiture Fund. We discuss the
actuarial reports in section III.D of this notice.
III. OSM's Findings
A. Legislative Actions Resulting in Statutory and Regulatory Changes
As mentioned above, we announced changes to statutory provisions
resulting from the passage of six legislative actions (HB 443 of 2006,
HB 119 of 2007, SB 386 of 2008, SB 73 of 2009, SB 181 of 2010, and HB
163 of 2011). As legislative activity progressed from 2007 to 2011,
some of the provisions of the more recent bills modified previously
enacted bills and prompted Ohio to revise its regulations under the
Ohio Administrative Code accordingly. Several provisions have been
rescinded or amended by other legislative actions and others have been
included in other Ohio Program Amendment packages (see Section V. OSM's
Decision under the header ``No Findings Issued'' in addition to the
discussion below). We summarize the statutory and regulatory changes
affected by the bills in a comprehensive manner, presenting the
[[Page 51326]]
provisions in final form after all legislative actions have occurred.
These statutory and regulatory provisions involve bond and non-bond
related provisions and address, among other things, the alternative
bonding system, full-cost bond requirements, regulatory and abandoned
mine land program funding, permitting procedures for determining the
potential for acid mine drainage, valid existing rights, remining,
abandoned mine lands, blasting, and topsoil handling. The statutory
provisions are codified at ORC Chapter 1513, Coal Surface Mining, and
Chapter 5749, Severance Tax. The regulatory provisions are codified at
OAC Chapter 1501, Department of Natural Resources, as summarized below.
B. Bond Related Statutory Provisions
The following statutory changes affected the financial system by
which operators and the State assure that lands and resources adversely
affected by coal mining are reclaimed, including the funding sources of
Ohio's Reclamation Forfeiture Fund (bond pool). These statutory changes
include, among other things, adding trust funds as an acceptable form
of performance security (financial assurance), allowing operators the
option to post a full-cost performance security, and adjusting tax
rates.
1. ORC 1513.01: Coal Surface Mining Definitions (Performance Security)
(Revised by HB 443 and SB 73)
Ohio revised ORC 1513.01 to add the term performance security at
subsection (W). ORC 1513.01(W) defines performance security as a form
of financial assurance, including, without limitation, a surety bond
issued by a surety licensed to do business in the State; cash; a
negotiable certificate of deposit; an irrevocable letter of credit that
automatically renews; a negotiable bond of the United States or Ohio or
a municipal corporation in Ohio; trust fund of which the State is the
primary beneficiary, or other form of financial guarantee that is
acceptable to the State. Through SB 73, Ohio then revised the
definition to delete annuities from the list of acceptable performance
security and to clarify that the State is the primary beneficiary,
rather than the conditional beneficiary, of any trust fund.
Correspondingly, Ohio has amended or deleted terms throughout ORC
chapter 1513, in which the word bond appears, such as in the terms
performance bond and bond coverage, and replaced those terms with the
term performance security, or used both. Ohio also made some
corresponding revisions to the definitions of performance security,
collateral bond, and trust fund in its regulations at OAC 1501:13-1-02.
For ease of discussion, we include these regulatory revisions here
rather than in Part C, below.
2. OAC 1501:13-1-02: Definitions (Performance Security, Collateral
Bond, Trust Fund, Incremental Area, and Incremental Mining Unit)
In response to the addition of ORC 1513.01(W), Ohio modified the
term performance bond in its regulations to use the term performance
security instead, currently at OAC 1501:13-1-02(LLLL), defining it as a
form of financial assurance that includes surety bonds (which is
further defined at subsection (LLLLLL)), collateral bonds (which is
further defined at subsection (DD)), a trust fund (which is further
defined at subsection (WWWWWW) and described in more detail below),
self-bond, or a combination thereof, by which the permittee assures
faithful performance of all the requirements of ORC Chapter 1513, OAC
Division 1501:13, and the requirements of the permit and the
reclamation plan. Ohio also revised the definition of collateral bond,
currently at subsection (DD), to clarify that the sum certain
identified in the indemnity agreement is payable only to the State. The
term retained the list of acceptable collateral as: cash deposits in
one or more Federally insured accounts, negotiable United States or
Ohio bonds, negotiable certificates of deposit, or an irrevocable
letter of credit. Ohio also added and defined the term trust fund,
currently at subsection (WWWWWW), to read: money, securities or other
property held by a trustee for the benefit of the State that is devoted
to the purpose of providing assurance that funds will be available when
needed to comply with Chapter 1513 of the Revised Code and rules
adopted thereunder and that irrevocably establishes the State as the
primary beneficiary. In 2016, Ohio removed ``self-bond'' from the list
of acceptable performance security under subsection (LLLL), and in
2018, moved trust funds from that list into the list of acceptable
collateral bonds under subsection (DD), along with language requiring
that trust funds must name the state as primary beneficiary in an
amount sufficient to complete the reclamation plan for any and all
areas that may default at any time and provided solely for meeting the
performance security requirements of the OAC.
Finally, Ohio revised the term incremental area, currently at
subsection (PPP), to apply the term exclusively to those permits for
which an operator has elected to participate in the bond pool, and
created the term incremental mining unit, currently at subsection
(QQQ), to apply exclusively to those permits for which an operator has
elected to conventionally bond. Ohio defines incremental area as that
area within the permit area that the permittee affects by its
operations in the particular permit year, and incremental mining unit
means an area within a permit of sufficient size and configuration to
provide for efficient mining and reclamation operations, subject to
approval by DMRM, where mining and reclamation activities are
authorized and for which a site-specific, full-cost performance
security has been determined.
OSM Finding (ORC 1513.01(W) and OAC 1501:13-1-02): The term
performance security, defined at ORC 1513.01(W) and OAC 1501:13-1-
02(LLLL), has no exact counterpart in SMCRA or the Federal regulations.
However, the Federal regulations at 30 CFR 800.5, Definitions, define
the terms surety bond and collateral bond. Both surety bond and
collateral bond, as defined at 30 CFR 800.5(a) and (b), respectively,
are considered authorized forms of performance bond under 30 CFR
800.12, Form of the performance bond. We approved Ohio's definition of
surety bond, currently at OAC 1501:13-1-02(LLLLLL), as no less
effective than the Federal term at 30 CFR 800.5(a) when we
conditionally approved Ohio's program in 1982. Nothing in this
amendment changes that finding, and therefore the surety bond component
of Ohio's definitions of performance security in both statute and
regulation are likewise approved.
Next, Ohio's statutory and regulatory definitions differ only in
that the regulation uses the term collateral bonds, which Ohio further
defines at OAC 1501:13-1-02(DD), while the statute avoids the term
collateral bonds, instead specifically naming the same types of
collateral listed in OAC 1501:13-1-02(DD), along with a proviso
allowing other forms of financial assurance acceptable to DMRM. The
regulatory definition also specifies that these instruments assure
faithful performance of all the requirements of the Ohio regulatory
program, the permit, and the reclamation plan. As with the term
performance security, we approved Ohio's regulatory definition for the
term collateral bond when we conditionally approved Ohio's program in
1982 because it was consistent with the Federal definition at 30 CFR
800.5(b).
Regarding Ohio's revision to the term collateral bond specifying
that the sum
[[Page 51327]]
certain is payable only to the State, we find that this revision is
consistent with existing descriptions of each form of collateral listed
in subsection (DD) and the corollary Federal descriptions at 30 CFR
800.5(b) and distinct from the requirement on Federal lands pursuant to
the State-Federal Cooperative Agreement between Ohio and the Secretary
of the Interior whereby the sum certain is payable to both Ohio and the
United States. Regarding Ohio's addition of trust funds as an
acceptable form of collateral and its definition of the term ``trust
fund,'' we note that while the Federal regulations do not specifically
list trust funds under 30 CFR 800.5(b), or define the term, we have
approved trust funds as acceptable forms of collateral on the basis
that, subject to certain limitations and safeguards included in the
State's regulations, trust funds present no greater risks than the
other forms of collateral bond included in 30 CFR 800.5(b) (subject to
the limitations in 30 CFR 800.21). See, e.g., 70 FR 25472, 25474 (May
13, 2005) (approving similar addition to Pennsylvania's regulatory
program). Ohio lists most of these limitations under OAC 1501:13-07-
03(B)(10), which we address below. However, nothing in the general
requirements found in the definition of trust fund at subsection
(WWWWWW), nor in the description provided under the definition of
collateral bond at subsection (DD)(5), renders the Ohio program less
effective than 30 CFR 800.5(b). These provisions are also consistent
with our prior approval in Pennsylvania, in which we stress that the
trust fund irrevocably names the State as the beneficiary, and its
purpose must ensure compliance with the approved State program.
Therefore, we approve the definition of trust fund at subsection
(WWWWWW) and the inclusion of trust funds as acceptable collateral
under subsection (DD). We also find that Ohio's choice to move trust
funds from the definition of performance security to the list of
approved collateral at subsection (DD) makes no practical difference to
the program. Therefore, even though Ohio had not submitted, and we had
not published, notice of this particular revision before we make our
finding here, we believe that notice and public comment under section
553 of the Administrative Procedure Act (APA) for this single
immaterial revision is impracticable, unnecessary, and contrary to
public interest. See 5 U.S.C. 553(b)(B).
Turning back then to the definition of performance security, we
note that removal of self-bond from the definition at OAC 1501:13-1-
02(LLLL) is part of a separate program amendment docketed at SATS No.
OH-258-FOR, so we will address it in that amendment. Otherwise, having
approved the terms surety bond and collateral bond, Ohio's definition
of performance security at subsection (LLLL) is no less effective than
30 CFR 800.5(a) and (b), and we approve it. We also approve Ohio's
statutory definition of performance security at ORC 1513.01(W) to the
extent it lists surety bonds and specifically names the types of
acceptable collateral for collateral bonds subject to additional
limitation by Ohio's regulations at OAC 1501:13-1-02(DD) and 1501:13-7-
03. We note that the term defined at ORC 1513.01(W) has no independent
operative effect but is subject to its use within the provisions of
Chapter 1513 of the Ohio Revised Code that used to reference
performance bond and similar phrasing.
Regarding Ohio's inclusion of ``other forms'' of financial
assurance acceptable to DMRM, we note that while the Federal
regulations do not contain such an open-ended catchall, 30 CFR 800.5(b)
does contain two additional forms of collateral bond: a perfected,
first-lien security interest in real property in favor of the
regulatory authority, and other investment-grade rated securities that
meet certain requirements. To the extent that other forms of financial
security ``acceptable to DMRM'' are limited to those listed under the
Federal regulations or are otherwise approved by us as part of the
approved program, we approve Ohio's provision contemplating other forms
of financial security acceptable to DMRM. Having addressed and approved
each component of the term performance security at ORC 1513.01(W) and
OAC 1501:13-1-02(LLLL) of OAC and finding them to be no less effective
than the Federal regulations, we approve these provisions.
Finally, while the term incremental mining unit is not defined in
the Federal regulations, Ohio's definition is nearly identical to, and
therefore no less effective than, the Federal regulation at 30 CFR
800.11(b)(4), which dictates that independently bonded increments of a
mining permit must be of a sufficient size and configuration to provide
for efficient reclamation by the regulatory authority should the bond
become forfeited. The Federal regulations also do not define the term
incremental area, which Ohio exclusively uses here to describe how an
applicant or permittee relying on the Reclamation Forfeiture Fund
reconciles their $2500/acre fee to participate in Ohio's ABS under OAC
1501:13-7-01(C)(2) and -7-02(A)(1). Importantly, the concern about the
increment size and configuration is absent because the increments under
a bond pool are not ``independent'' in the sense that there is not a
fixed financial instrument supporting the particular increment. While
the Federal program does not establish any specific ABS, Ohio's
definition of incremental area for this purpose is not inconsistent
with the Federal regulations. For these reasons, we approve the
definitions of both incremental mining area and incremental mining unit
at OAC 1501:13-1-02(PPP) and (QQQ), respectively.
3. ORC 1513.02: Chief of Division of Mineral Resources Management--
Powers and Duties (Civil Penalties) (Revised by HB 443)
In addition to minor editorial corrections, Ohio revised subsection
(E)(3) to direct the deposit of all funds collected from civil
penalties for violations of ORC Chapter 1513 into the Reclamation
Forfeiture Fund created under ORC 1513.18, discussed below. Before this
revision, civil penalty funds were directed to Ohio's coal mining
administration and reclamation reserve fund created under ORC 1513.181
(repealed).
OSM Finding: The deposit of civil penalties to the bond pool will
contribute to the Reclamation Forfeiture Fund's solvency as required at
30 CFR 800.11(e) and promote fulfillment of the program condition
described at 30 CFR 935.11. Further, 30 CFR 845.21 authorizes the
Director of OSM to use civil penalties for reclamation, with which
Ohio's revision is consistent. As we note below in more detail, the
coal mining administration and reclamation reserve fund has been
terminated, and its functions have been consolidated with those of
other funds into the Mining Regulation and Safety Fund. One of the
functions of this consolidated fund includes the general administration
and enforcement of Ohio's approved coal mining regulatory program.
States are required under 30 CFR 732.15(d) to ensure that they have
sufficient funding to implement, administer, and enforce their approved
programs. In lieu of civil penalties and permit fees (discussed below),
Ohio has decided to fund administration and enforcement of its approved
program through an increase of the severance tax on coal production at
ORC 5749.02. We have seen no indication that diverting the civil
penalties away from general administration and enforcement has
jeopardized Ohio's compliance with 30 CFR 732.15(d), but we will
continue to
[[Page 51328]]
monitor through our regular oversight function. Therefore, we approve
the revision to ORC 1513.02(E)(3).
4. ORC 1513.07: Coal Mining and Reclamation Permit--Application or
Renewal--Reclamation Plan (Permit Application and Renewal Fee, and
Estimated Cost of Reclamation) (Revised by HB 443 and SB 73)
In 2007, Ohio revised subsection (B)(1) to delete the permit
application and renewal fee of seventy-five dollars per acre that was
credited to the coal mining administration and reclamation reserve fund
under ORC 1513.181 (repealed) and used to assist funding DMRM's
operational costs (with the possibility of transfers to the Reclamation
Forfeiture Fund at ORC 1513.18 to support the bond pool). In 2009, Ohio
further revised this section by amending the reclamation plan
requirement at subsection (C) to clarify that the applicant is
responsible for providing adequate information in the application in
the detail necessary for DMRM to determine the estimated site
reclamation cost in the event of forfeiture. Ohio consequently
eliminated the requirement at subsection (C)(5) that the permittee
provides the estimated cost of reclamation per acre in the permit
application.
OSM Finding: Similar to the civil penalties discussed above, Ohio
chose to eliminate its permit and renewal fees in favor of generating
additional revenue to fund the administration and enforcement of its
approved program through an increase of its severance tax on coal
production at ORC 5749.02. As with civil penalties, we approve the
removal of the permit and renewal fee provision from ORC 1513.07(B)(1)
and will continue to monitor Ohio's funding of its program through our
regular oversight function to ensure it remains sufficient.
Concerning Ohio's addition of a requirement that permit applicants
provide information in detail necessary for DMRM to determine estimated
reclamation costs, and Ohio's corresponding elimination of the
applicant-provided cost estimate, we find that the revisions render
Ohio's program no less effective than 30 CFR 780.18, Reclamation Plan;
General requirements, and 30 CFR 800.14, Determination of bond amount,
at meeting the requirements of SMCRA. Section 780.18(b)(2) of the
Federal regulations requires that each reclamation plan includes a
detailed estimate of the cost of reclamation, with supporting
calculations, of the operations required to be covered by a performance
bond under 30 CFR part 800. However, Sec. 800.14(a) specifies that the
amount of the bond must ultimately be determined by the regulatory
authority and based on, but not limited to, the estimate submitted by
the permit applicant. 30 CFR 800.14(a)(1), (4). While Ohio's
elimination of the requirement that the applicant submit an estimate
seemingly contradicts the Federal requirement at 30 CFR 780.18(b)(2),
we find that Ohio's approach overall should achieve greater accuracy
and consistency at meeting the requirement of 30 CFR 800.14(a)(1) by
requiring necessary detail in the reclamation plan for DMRM to
determine cost in the first instance. Therefore, we approve the
revisions to ORC 1513.07(C) and (C)(5).
5. ORC 1513.08: Filing Performance Bond or Deposit of Cash or
Securities (Revised by HB 443, HB 119, SB 73)
a. Subsection (A) (General Requirements)
In addition to revising the word bond to performance security, Ohio
revised this section to remove the words ``but before the permit is
issued'' that described when an applicant must file performance
security after the permit application is approved. Ohio also initially
removed, but then replaced, language requiring that the performance
security be payable to the State and conditioned on the faithful
performance of all the requirements of Ohio's coal mining statutes and
regulations (Ohio's approved program) and the terms and conditions of
the permit.
OSM Finding: Although the phrase ``but before the permit is
issued'' has been deleted from ORC 1513.08(A), Ohio provides clarity in
other provisions about when performance security must be filed. Ohio's
regulations at OAC 1501:13-7-01(A)(2) generally prohibit surface
acreage disturbance before performance security is filed with DMRM.
Moreover, subsections (A)(6)(a)(ii) and (A)(6)(b)(ii) of this rule
specify that applicants must file the performance security before the
permit is issued for the particular area or increment to be affected.
Relying on this regulation, we find that Ohio's requirement to file a
performance security after permit approval remains no less effective
than the Federal regulations at 30 CFR 800.11(a), Requirement to file a
bond, and approve ORC 1513.08(A). If we determine in the future that
Ohio is issuing permits before receiving the bond, we may require Ohio
to submit a program amendment to revise its program to reflect our
understanding.
b. Subsection (B) (Full-Cost Performance Security Amount and
Performance Security Election)
Ohio split up subsection (A) into subsections (B) and (C) and
significantly revised the existing language to create two options for
providing performance security. In subsection (B), Ohio authorizes DMRM
to determine the estimated cost of reclamation if the reclamation would
need to be performed by the State in the event of forfeiture (i.e.,
site-specific, conventional, full-cost bond). Subsection (B) provides
that DMRM will use the information included in the permit application,
requirements of the approved permit, and other enumerated
considerations to determine the amount of the performance security. It
further provides that Ohio will notify the applicant via certified mail
of the estimated cost, and the applicant must provide written notice
indicating the method by which it is providing the performance
security. In 2023, Ohio amended this subsection, as well as subsections
(E) and (F), to accommodate electronic notice. Because these revisions
were not part of this submittal, we do not address those changes in
this decision. Rather, we have contacted DMRM to coordinate Ohio's
submission of this, and other intervening revisions not already
accounted for, as a separate state program amendment.
OSM Finding: We have determined that the revised language in this
subsection is nearly identical to the Federal requirements at 30 CFR
800.14(a), Determination of bond amount and, therefore, is no less
effective than the Federal regulations. We do note, however, that
subsection (B) does not list an estimate provided by the applicant as a
factor DMRM considers when arriving at its estimate. We address the
issue above in our analysis of ORC 1513.07 and incorporate those
findings here. We also note that in its redrafting of these
subsections, Ohio moved the requirement that the total bond posted for
the entire area under one permit not be less than $10,000, which was
derived from section 509(a) of SMCRA, 30 U.S.C 1259(a), and 30 CFR
800.14(b), to subsection (C) discussed below. The $10,000 minimum total
bond is still required for the performance security posted according to
subsection (B). Accordingly, we approve the changes to ORC 1513.08(B).
c. Subsection (C) (Performance Security Options)
Ohio created subsection (C) to contain some general performance
security
[[Page 51329]]
requirements and to permit an alternative method for the applicant to
provide performance security distinct from the conventional approach
described in the section above regarding subsection (B). Subsection (C)
contains a modified version of Ohio's previous system, which had
required all applicants to participate in a bond pool, a form of an
ABS. The bond pool is comprised of funds collected from permittees and
other sources, placed in the bond pool, and, if necessary, available to
Ohio to reclaim sites in the pool, with certain conditions described
below. Paragraph (1) provides that if an operator elects to provide
performance security without reliance on the bond pool, it must do so
in compliance with subsection (B) for the increments of land on which
it will conduct coal mining and reclamation operations under the
initial term of the permit. Paragraph (2) provides that the applicant
may elect to participate in the bond pool, which requires the applicant
to provide a performance security in an amount equal to $2500/acre
(flat rate) and pay an additional severance tax levied under ORC
5749.02(A)(8) on each ton of coal produced. Paragraph (2) also provides
that in order for an applicant to be eligible to participate in the
bond pool, the applicant, an owner or controller of the applicant, or
an affiliate of the applicant shall have held a permit issued under ORC
Chapter 1513 for any coal mining and reclamation operation for a period
of not less than five years.
The remaining provisions are not separately numbered but are
contained within subsection (C) generally. Subsection (C) provides that
in the event of forfeiture of the flat rate performance security, the
difference between the flat-rate performance security and the estimated
cost of reclamation determined by DMRM according to subsection (B) will
come from the Reclamation Forfeiture Fund as needed to complete
reclamation (discussed more at ORC 1513.16). The requirement that no
performance security (applying now to both conventional and flat rate)
for the entire area to be mined under one permit will not be less than
$10,000 is retained. Subsection (C) also retains the provision
describing the area of land required to be covered by the performance
security and conditions that trigger the requirement to file additional
performance security for succeeding increments of the approved permit
area, and adds that if a permittee intends to mine areas outside of the
approved permit area, it must file additional performance security for
those areas.
d. Coal Preparation Plant and Coal Refuse Disposal Areas
In 2007, Ohio added a provision requiring applicants to file full-
cost bond for coal preparation plants and coal refuse disposal areas
not located within the permitted area of a mine. In 2009, Ohio revised
this provision to allow permittees to include these operations in the
bond pool under paragraph (2), subject to the same conditions, and
allowed those that had initially posted full-cost bond to convert to
the bond pool. In 2021, through House Bill 110, 2021 Ohio Laws 30, Ohio
added a proviso that if a permit is transferred, assigned or sold, the
transferee is not eligible for the bond pool if they cannot meet the
five-year requirement under paragraph (2), even if the name of the
permittee otherwise remains the same after the transfer, assignment or
sale.
OSM Finding: We have determined that the changes to this subsection
are no less effective than the Federal regulations at 30 CFR 800.11(e),
800.14(b), and 800.17.
First, Ohio's additional option for applicants to provide full-cost
performance security, discussed in more detail above for subsection
(B), is as effective as 30 CFR 800.11(a) and 800.14 and is, in fact,
the only option currently provided under the Federal program.
Accordingly, we approve ORC 1513.08(C)(1). Next, the Federal
regulations at 30 CFR 800.11(e) allow for alternative bonding systems
if those systems both assure that the regulatory authority has
sufficient funds to conduct reclamation for any areas that may be in
default at any time and provide a substantial economic incentive for
permittees to comply with reclamation requirements. Ohio's alternative
bonding system described at 1513.08(C)(2) is no less effective than 30
CFR 800.11(e). The Reclamation Forfeiture Fund that Ohio will use to
pay for reclamation work for areas in default has sufficient funds to
cover possible reclamation work, as we analyze in our discussion of the
program condition and actuarial reports on the bond pool below. We find
that the $2,500 per acre performance security that applicants will
provide under the alternative bonding system provides a substantial
economic incentive to comply with reclamation requirements, and the
severance tax levied on coal production is currently generating
sufficient revenue for the bond pool. As with the alternative bonding
systems in all States that elect to use them, we will continue to
monitor its sufficiency through our regular oversight function.
Regarding the provision that the Reclamation Forfeiture Fund provides
the difference between flat rate performance security and the estimated
cost of reclamation, we address this in more detail below regarding ORC
1513.18 and incorporate those findings here.
The provision requiring an applicant or its owners, controllers, or
affiliates, to have held a permit for at least five years to be
eligible for the bond pool has no direct Federal counterpart but is not
inconsistent with the Federal requirement at 30 CFR 800.11(e)(1), that
alternative bonding systems carry sufficient funds for the regulatory
authority to conduct reclamation for areas in default. Restricting bond
pool participation to more experienced and established operators will
reduce the chances of bond default occurring, thereby reducing
expenditures from the bond pool funds. Ohio has the discretion to limit
its bond pool participants in such manner. Further, we find that the
same discretion supports Ohio's revision in 2021 that restricts a
transferee that does not meet the five-year requirement from
participating in the bond pool even if the named permittee remains the
same. Even though Ohio had not submitted, and we had not published,
notice of this proviso before making this finding, we find that notice
and public procedure under section 553 of the APA for removal of these
references in ORC 1513.18 are impracticable, unnecessary, and contrary
to public interest. See 5 U.S.C. 553(b)(B). Notification is unnecessary
because we interpret this revision to be a clarification of Ohio's
existing requirement, not a new restriction, and that even if it were
new, it is more restrictive, which is always within the State's
discretion.
Ohio's retention of the $10,000 minimum bond amount is identical to
the Federal requirements at 30 CFR 800.14(b), and we approve its
application to both methods of providing financial security. Similarly,
we find that Ohio's provision requiring that permittees who intend to
mine areas outside the approved permit area must file additional
performance security is merely an additional statement of what Ohio's
program already required.
The requirement for applicants to post bonds for coal preparation
plants and coal refuse disposal areas is no less effective than the
Federal regulations at 30 CFR 800.17(a) and (b), which requires
applicants to post bonds long term surface facilities, including coal
preparation plants and refuse disposal areas. Ohio providing the option
to
[[Page 51330]]
bond coal preparation plants and coal refuse disposal areas with full-
cost bonds or under the bond pool program is no less effective than the
Federal regulations at 30 CFR 800.11 and 800.14 for the same reasons
described earlier in this finding.
For these reasons, we have determined that the changes to this
subsection are no less effective than the Federal regulations.
Accordingly, we approve the changes to ORC 1513.08(C).
e. Subsection (D) (Performance Security Liability)
Ohio revised subsection (D) to add that a permittee's liability
under the performance security is limited to the obligation established
under the permit, including completion of the reclamation plan to
return the land to a condition capable of supporting the postmining
land use that was approved in the permit.
OSM Finding: We have determined that, when read in conjunction with
subsection (A), above, and ORC 1513.07, this provision is no less
effective than 30 CFR 800.16(c), which requires that performance bond
be conditioned on the faithful performance of all the requirements of
the coal mining laws and regulations and the approved permit and
reclamation plan. Subsection (A) conditions performance security on the
faithful performance of all the requirements of Ohio's approved coal
mining statutes and regulations and the terms and conditions of the
permit, and ORC 1513.07 requires that the permit and reclamation plan
must meet the requirements of Ohio's approved coal mining statutes and
regulations. Therefore, we approve the change to ORC 1513.08(D).
f. Subsection (E) (Bond Adjustments--Agency Initiated)
Subsection (E) is new and prescribes the requirements for full-cost
performance security adjustments. When the land that is affected by
mining increases or decreases or if the cost of reclamation increases
or decreases, the State will adjust the reclamation estimate and
corresponding amount of performance security. If the performance
security was provided under the bond pool and a cessation order was
issued for failure to abate a violation of the contemporaneous
reclamation requirement, the State may require the permittee to
increase the amount of performance security from $2,500 per permitted
acre to $5,000 per permitted acre.
The provisions also require the State to notify the permittee, each
surety, and any person who has a property interest in the performance
security and who has requested to be notified of any proposed
performance security adjustment. The permittee may request an informal
conference to discuss the proposed adjustment, and the State will
provide such an informal conference. If the State requires an increase
in the performance security amount, the permittee must provide the
additional performance security. If the State determines a decrease in
performance security is warranted, the State will send written notice
of the amount of reduction to the permittee, and the permittee may
reduce the amount of performance security in the amount determined by
the State.
OSM Finding: We have determined that the provisions in this section
are no less effective than the Federal regulations at 30 CFR 800.15(a)
and (b). The conditions under which bond adjustment occurs and the
process for adjusting the bond are identical to the Federal
regulations. Regarding the increase of the flat-rate performance
security, we find that it is a prudent measure to help ensure the bond
pool's compliance with 30 CFR 800.11(e)(1) by transferring additional
liability away from the Reclamation Forfeiture Fund and onto operators
at high risk of default. Therefore, we approve the addition of ORC
1513.08(E).
Subsection (F) (Bond Adjustment--Permittee Initiated)
Subsection (F) is new and provides that a permittee may request a
reduction in the amount of full-cost performance security. The request
must include documentation proving that the amount of performance
security provided by the permittee exceeds the estimated cost of
reclamation. The State will respond to each request and, after review
of the documentation, determine whether the performance security
exceeds the reclamation cost estimate. Following the determination, the
State will determine the amount of the reduction of the performance
security and send written notice of the amount to the permittee. The
permittee may reduce the amount of performance security in the amount
determined by the State. Adjustments in the amount of performance
security are not considered release of performance security and,
therefore, not subject to the bond release provisions of ORC 1513.16.
OSM Finding: We have determined that the provisions in this section
are no less effective than the Federal regulations at 30 CFR 800.15(c).
The procedures and parameters of permittee bond reduction requests are
identical in this section and the Federal regulations. Therefore, we
approve the addition of ORC 1513.08(F).
Subsection (G) (Provider Requirements)
Ohio revised subsection (G) to add that, if the performance
security is a cash deposit or a certificate of deposit of a bank or
Savings and Loan association, that business must be licensed and
operating in Ohio. The revision further adds that DMRM must review the
performance security documents, approve of their use, and then notify
the applicant of the determination.
OSM Finding: We have determined that the provisions in this section
are no less effective than the Federal regulations at 30 CFR 800.16(e),
which requires all bonds to provide a mechanism for the bank or surety
company to notify the regulatory authority of suspension or revocation
of its license. We also note that 30 CFR 800.5(b) and 800.21(a) and (d)
require the financial institution (or account) holding these
performance security instruments to be Federally insured, which we
understand is a requirement for its State license. The provisions in
this section of the Ohio amendment likewise require businesses
facilitating bond instruments to be licensed in Ohio. Therefore, we
approve the revisions to ORC 1513.08(G).
Subsection (I) (Trust Fund)
Ohio added subsection (I), which authorizes the use of trust funds
as performance security, requiring that the State must be the primary
beneficiary of the trust and the custodian must be a bank, trust
company, or other financial institution licensed and operating in Ohio.
Subsection (I) also specifies that DMRM will review the trust document,
approve or disapprove it, and notify the applicant of the
determination.
OSM Finding: We have determined that the provisions in this section
do not have direct Federal counterparts but are not inconsistent with
the Federal regulations at 30 CFR part 800. As we note in our finding
on the definition of the term performance security, above, and in more
detail below for ORC 1513.16, we acknowledge that trust funds are not
explicitly authorized as a bonding instrument pursuant to 30 CFR
800.12. We incorporate our findings for those provisions, which include
significantly more detail, and simply note here that we approve Ohio's
addition of trust funds as a form of performance security consistent
with our approval in Pennsylvania; we also note that Ohio's program is
similar to our approval of trust funds as a form of ABS to fund water
treatment in the
[[Page 51331]]
Federal program in Tennessee. Therefore, we approve the addition of ORC
1513.08(I).
Subsection (J) (Provider Insolvency)
Ohio added subsection (J) to 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. These requirements
include the permittee notifying the State of the insolvency and the
State ordering the permittee to submit a plan for replacement
performance security within 30 days after receipt of notice from the
State. If the permittee provided full-cost performance security, the
permittee has 90 days after receipt of notice to replace the
performance security. If the permittee participated in the bond pool,
the permittee has one year after receipt of notice to replace the
performance security. For the one-year period following the permittee's
receipt of notice, or until the permittee provides the replacement
security, whichever comes first, money in the bond pool will be the
permittee's replacement performance security in an amount not to exceed
the State's reclamation cost estimate.
OSM Finding: We have determined that the provisions in this section
are less effective than the Federal regulations at 30 CFR 800.16(e)(2).
The procedures for replacing full-cost performance security in the
event of insolvency conflict with the Federal regulations that require
replacement bonds to be replaced within 90 days with no exception for
alternative bonding systems. Although Ohio seeks to revise their
program to allow the operators who rely on the bond pool to partially
replace the bond within 90 days and the balance of the remaining bond
being provided by the bond pool within one year, we must require a
complete replacement of the bond within 90 days. If Ohio implements its
program allowing the bond pool to supplement the replacement bond this
action would place an undue risk on the solvency of their bond pool.
Therefore, we do not approve that provision of ORC 1513.08(J) related
to permittees who have provided performance security in accordance with
ORC 1513.08(C)(2).
Subsection (K) (Liability Insurance for Water Treatment and Water
Replacement)
In 2007, Ohio added subsection (K), which at that time provided
that the permittee's responsibility for repairing material damage and
replacement of water supply resulting from subsidence may be satisfied
by liability insurance in lieu of the permittee's performance security
if the liability insurance policy included the terms and conditions
that specifically provide coverage for repairing material damage and
replacement of water supply resulting from subsidence. In 2009,
coinciding with the removal of a prohibition against using the bond
pool fund to address material damage from subsidence, Ohio reorganized
and revised this provision to only apply to permittees who have
provided full-cost performance security. The revisions clarified that
the permittee must select this option before mining and that it be a
non-cancelable premium-paid liability insurance policy. Ohio also added
subsection (2), which offers permittees the option to provide
additional performance security to meet the permittee's obligation to
repair material damage and replacement of water supply resulting from
subsidence. Subsection (2) provides that a permittee may post
additional performance security in the amount of the State's
reclamation cost estimate to repair material damage and replace water
supplies resulting from subsidence until the repair or replacement is
completed. The provision also provides that if repair or replacement is
completed or if compensation for structures that have been damaged by
subsidence is provided by the permittee within 90 days of the
occurrence of the subsidence, additional performance security is not
required. The State may extend the 90-day period for a period not to
exceed one year if the State determines that the permittee has
demonstrated in writing that subsidence is not complete and that
probable subsidence-related damage will occur, and, as a result, the
completion of repairs of subsidence-related material damage to lands or
protected structures or the replacement of water supply within 90 days
of the occurrence of the subsidence would be unreasonable.
OSM Finding: We have determined that the provisions in this section
are no less effective than the Federal regulations at 30 CFR 800.14(c),
800.60, and 817.121(c). Section 817.121 requires operators to adjust
the bond amount for subsidence damage unless the operator repairs the
subsidence damage within 90 days. This section also allows for an
extension of the 90-day period up to a year if the operator
demonstrates that not all reasonably anticipated damages have occurred
yet. Sections 800.14 and 800.60 allow for liability insurance for
subsidence damage so long as it meets certain requirements, like that
it is maintained in full force during the life of the permit, any
renewal period, and through the liability period necessary to complete
all reclamation. Ohio's requirements are consistent with these Federal
regulations. Therefore, we approve ORC 1513.08(K).
Subsection (L) (Excess Performance Security)
Ohio added this subsection to allow DMRM to authorize payment to
the permittee of the amount of performance security that exceeds the
estimated cost of reclamation, together with any interest or other
earnings on the performance security.
OSM Finding: We have determined that the provision authorizing DMRM
to refund, with interest, excess amounts of performance security is no
less effective than the Federal regulations at 30 CFR 800.15,
Adjustment of amount. Ohio is clarifying DMRM's ability to make these
adjustments as allowed by the Federal regulations. Therefore, we
approve ORC 1513.08(L).
Subsection (M) (Transition Provisions)
Immediately after Ohio passed HB 443, Ohio passed HB 119 to add
subsection (M) to establish that permittees that held valid permits
immediately prior to the effective date of HB 443 (i.e., April 6, 2007)
must update their performance securities in conformance with the new
law.
OSM Finding: We have determined that this section does not have
direct Federal counterparts but is not inconsistent with the Federal
regulations. This section provided a reasonable length of time for
existing operations to comply with the new requirements. We understand
that no permittees currently operate under the prior version of Ohio's
law, and therefore we approve ORC 1513.08(M) as a matter of course.
Subsection (N) (Applicant Relationships Defined)
Subsection (N) is a new section that defines certain terms related
to ORC 1513.08. The term ``affiliate of the applicant'' means an entity
that has a parent entity in common with the applicant. The term ``owner
and controller of the applicant'' means a person that has any
relationship with the applicant that gives the person authority to
determine directly or indirectly the manner in which the applicant
conducts coal mining operations.
OSM Finding: In ORC 1513.08, Ohio uses these terms only to refer to
entities
[[Page 51332]]
that may have held a permit within the previous five years such that
the applicant may elect to participate in the bond pool. We have
determined that the bond pool provisions in this section have no direct
Federal counterparts, but Ohio's use and definition of these terms here
are not inconsistent with the Federal definitions of owner or
controller at 30 CFR 701.5, or our use of the term affiliate at 30 CFR
778.14(a). Therefore, we approve the addition of ORC 1513.08(N).
ORC 1513.081: Financial Assurance Operator Insolvency (Revised by HB
443, HB 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 must 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
DMRM will use in such cases. It also describes the conditions under
which DMRM will 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
will be deposited in the State treasury to the credit of the
Reclamation Forfeiture Fund. In 2011, Ohio revised this provision to
replace the word ``operator'' with ``permittee'' and added language in
several places to account for costs related to long-term water
treatment and long-term alternative water supplies.
OSM Finding: The Federal regulations at 30 CFR 800.50(d) explain
that if the estimated amount of bond forfeited by an operator is
insufficient to pay for the full cost of reclamation, then the operator
is liable for the remaining costs, and the regulatory authority may
authorize the reclamation and recover those costs from the operator.
Therefore, we have determined that the priority lien provision is
consistent with the Federal regulations at 30 CFR 800.50(d) because it
provides the State with the authority to recover authorized reclamation
costs by placing liens against an operator who becomes insolvent. This
prioritization will ensure that assets are available to the State to
complete reclamation of the site as established in the approved permit,
and so we approve ORC 1513.081.
ORC 1513.10: Reclamation Fee Fund (Permit Fee Refunds) (Repealed by HB
443)
Ohio repealed this section, which created the Reclamation Fee Fund
and provided conditions under which the operator would be entitled to a
permit fee refund.
OSM Finding: We have determined that the repeal of this provision
does not render the Ohio approved program inconsistent with SMCRA or
the Federal regulations, neither of which includes a counterpart to the
repealed provision. ORC 1513.10 has become unnecessary because Ohio
eliminated acreage permit fees entirely, which we approved above in our
discussion of revisions to ORC 1513.07(B)(1). Acreage fees were removed
in favor of changes to the severance tax on coal production. Therefore,
we approve the repeal of ORC 1513.10.
ORC 1513.16: Performance Standards (Treatment Trust Provisions and Bond
Release) (Revised by HB 443, HB 163) and OAC 1501:13-1-02: Definitions
(Alternative Financial Security)
Ohio revised this provision, which relates to general performance
standards that apply to all coal mining and reclamation operations, to
replace the term bond with the term performance security consistent
with the revision to ORC 1513.01(W), discussed above. Ohio also added
subsection (F)(8) to authorize DMRM, in certain circumstances, to
accept an alternative financial security sufficient to fund the
treatment of mine drainage or provide alternative water supplies for
which DMRM determines the permittee is responsible after reclamation is
completed under the terms of the permit. Subsection (F)(8) requires
that the amount must be determined by DMRM before the release of the
remaining performance security under ORC 1513.16(F)(3)(c) and must be
equal to or greater than the present value of the estimated cost over
time to develop and implement mine drainage plans and provide water
treatment, or necessary to provide and maintain an alternative water
supply, as applicable. The provision specifies that the alternative
financial security must include a contract, trust, or other agreement
or mechanism legally enforceable specifically for those purposes.
Through HB 163, Ohio further revised this provision to allow operators
the option of funding an alternative financial security over time, up
to five years, with reliance for the balance on guarantees or other
collateral until the alternative financial security is fully funded. If
permittee is bonded under the bond pool, the permittee may rely on the
Reclamation Forfeiture Fund until the alternative financial security is
fully funded, but the permittee must pay 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 over the
previous six months. That fee is credited to the bond pool. Ohio also
included a provision requiring DMRM to adopt regulations necessary for
the administration of this subsection. Ohio also added subsection
(F)(9) to add that the final release of the performance security
terminates the jurisdiction of DMRM over the reclaimed site of a
surface coal mining and reclamation operation or applicable portion of
an operation. It specifies that DMRM will reassert jurisdiction over
such a site if the release was based on fraud, collusion, or
misrepresentation, and that adversely affected persons may appeal such
a determination to the Reclamation Commission. Ohio has made subsequent
revisions, adding subsection (A)(25) in 2015 (which is part of a
separate state program amendment docketed at SATS No. OH-256-FOR), and
eliminating the requirement for a stenographic record in 2023. We do
not address those revisions here.
In 2018, Ohio revised its regulations to add the term alternative
financial security to its list of definitions at OAC 1501:13-1-02(G),
which it defined as a trust fund, standby trust fund, or other similar
agreement or mechanism for the benefit of the state, enforceable under
law and approved by DMRM that assures sufficient funds are available
and devoted solely to the purpose of providing and maintaining long-
term water treatment or a long-term water supply, as DMRM requires
under ORC 1513.16(F)(8).
OSM Finding: Section 509(a) of SMCRA, 30 U.S.C. 1259(a), and its
implementing regulations at 30 CFR 800.11 and 800.14, require that a
permittee provide bonds ensuring the faithful performance of all the
requirements of SMCRA, the regulatory program, the permit and the
reclamation plan, which includes the long-term treatment of mine
drainage or provision of alternative water supplies made necessary by
the operation. Ohio's addition here requires an operator found
responsible for water treatment or an alternative water supply after
reclamation is completed to provide an alternative financial security.
ORC 1513.16(F)(8) does not define alternative financial security, but
it does describe it, as above, specifying that it include ``a
[[Page 51333]]
contract, trust, or other agreement or mechanism'' enforceable under
the law for that purpose. Ohio then defined alternative financial
security in its regulations in similar terms. Ohio's regulations also
define the term trust fund at OAC 1501:13-1-02(WWWWWW), and, as
explained above, place conditions on trust funds under OAC 1501:13-7-
03(B)(10). As we note in our finding on the definition of performance
security above, trust funds are not explicitly authorized as a bonding
instrument pursuant to 30 CFR 800.12. However, we have previously found
that trust funds and equivalent financial arrangements are a prudent
approach to providing financial assurance for long-term treatment of
pollutional discharges and providing alternative water supply, and have
approved trust funds as a form of collateral bond in Pennsylvania, see
70 FR 25472 (May 13, 2005) and 75 FR 48526 (August 10, 2010), and as an
alternative bonding system under section 509(c) of SMCRA and 30 CFR
800.11(e) in Pennsylvania, see id., West Virginia, see 89 FR 19262
(March 18, 2024), and under the Federal program in Tennessee, see 30
CFR 942.800(c); 72 FR 9616 (March 2, 2007).
In those three States, trust funds are conditioned as Ohio has
conditioned them under OAC 1501:13-7-03, ensuring, for instance that
the trust agreement be in a form approved by the regulatory authority
and contain all terms and conditions the regulatory authority requires.
We address the remaining conditions in our discussion of OAC 1501:13-7-
03 below, but we note it here because, while we approve Ohio's
alternative financial security as it appears in ORC 1513.16(F)(8) and
defined at OAC 1501:13-1-02(G), we do so only to the extent it includes
trust funds as defined at OAC 1501:13-1-02(WWWWWW) and conditioned by
OAC 1501:13-7-03. If Ohio decides to pursue additional ``agreements or
mechanisms'' (such as annuities so authorized in the three States
mentioned), it will need to pursue an additional program amendment for
us to evaluate the conditions proposed for those agreements or
mechanisms. We also approve Ohio's provision authorizing the permittee
to fund the alternative financial security within five years, which is
consistent with our prior approvals acknowledging that they may be
funded over a reasonable time. Regarding the amount of the alternative
financial security, we note that our program in Tennessee and our
recent approval in West Virginia stress that the amount of a trust for
long-term water treatment include funding for reclamation of the
treatment facility and supporting areas when they are no longer
necessary in order to restore the area to the approved postmining land
use. While Pennsylvania's program is not as explicit, it generally
provides that the amount is determined as necessary to meet the bonding
requirements established by the regulatory authority for a permittee
and that it guarantees money for water treatment or reclamation or
both. See 25 Pa. Code 86.158(f)(1) and (3). Accordingly, we approve ORC
1513.16(F)(8) and OAC 1501:13-1-02(G) with the understanding that,
although they refer to amounts for providing and maintaining long-term
water treatment, they are subject to the condition in the definition of
trust fund at OAC 1501:13-1-02(WWWWWW) that funds are available to
comply with Ohio's approved program and would necessarily include
reclamation of the treatment facility after all pollutional discharges
are eliminated or otherwise cease to exist.
We also find that, even though Ohio had not submitted, and we had
not published, notice of Ohio's definition of alternative financial
security at OAC 1501:13-1-02(G) before making this finding, notice and
public procedure under section 553 of the APA for removal of these
references in ORC 1513.18 are impracticable, unnecessary, and contrary
to public interest. See 5 U.S.C. 553(b)(B). Notification is unnecessary
because Ohio's definition is not substantively different than its
description of alternative financial security in the text of ORC
1513.16(F)(8), and we limit our approval to alternative financial
security in the form of trust funds, which Ohio had submitted and we
approved above. Finally, we also find that the amendment at ORC
1513.16(F)(9), pertaining to termination and reassertion of
jurisdiction, is effectively the same as the Federal regulations at 30
CFR 700.11(d), which authorizes the regulatory authority to terminate
jurisdiction following a final decision to fully release the relevant
performance bond and to reassert jurisdiction in cases of fraud,
collusion, or misrepresentation of materials facts. Further, it is our
understanding that Ohio does not interpret this provision as
terminating jurisdiction at sites relying on alternative financial
security under subsection (F)(8), for which the original performance
security has been released pursuant to subsection (F)(3)(c). We find
this interpretation is supported by Ohio's definitions of alternative
financial security at OAC 1501:13-1-02(G), and trust fund at OAC
1501:13-1-02(WWWWWW), and the conditions for trust funds under OAC
1501:13-7-03(B)(10), which together establish that alternative
financial security still means a form of collateral bond that
constitutes performance security, only the proper release of which
would terminate jurisdiction under ORC 1513.16(F)(9). Therefore, Ohio's
provision is no less effective than the Federal regulation, and we
approve it.
ORC 1513.171: Severance Tax Credit Certificate (HB 443)
This is a new section that provides procedures for a permittee to
apply to perform reclamation on land or water resources not within
their own permit area that had been affected by past coal mining for
which the performance security was forfeited. Following approval of the
application and successful reclamation, DMRM issues to the permittee a
reclamation tax credit certificate that the permittee may claim under
ORC 5749.11 against the severance tax imposed under ORC 5749.02. This
provision also provides that DMRM will adopt rules to establish
procedures for determining the amount; when DMRM 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.
OSM Finding: We have determined that a tax credit for reclamation
of areas adversely affected by coal mining, for which the permittee
conducting the reclamation and applying for the credit is not
responsible, has no Federal counterpart but is not inconsistent with
SMCRA or its Federal regulations. Ohio has added this provision to its
regulatory program as an incentive for permittees to perform
reclamation work that would otherwise be conducted, at greater expense,
by the State through the or through the bond pool or other relevant
State funding. The cost-savings from private reclamation of these sites
benefits the overall solvency of the bond pool. Therefore, we approve
ORC 1513.171.
ORC 1513.18: Reclamation Forfeiture Fund (Revised by HB 443, HB 119, SB
73, HB 163)
Ohio made numerous revisions to this section, which establishes the
Reclamation Forfeiture Fund to hold the money derived from the
forfeiture of performance security and hold additional funds derived
from other sources to support Ohio's bond pool. Ohio revised subsection
(B), which
[[Page 51334]]
establishes the sources of funds, to eliminate transfers from the
unreclaimed lands fund (2007) and the coal mining and reclamation
reserve fund (2017); and to add all funds collected from liens under
ORC 1513.081 (2007), the fee levied pursuant to ORC 1513.16(F)(8)(c)
collected for sites for which the permittee elects to incrementally
fund alternative financial security with reliance on the bond pool for
the balance (2011), and fines collected for violations of Ohio's coal
mining laws and obstructing official duties (2007). Ohio also revised
the proviso in subsection (B) relating to disbursements, clarifying
that disbursements must occur in accordance with subsection (D),
eliminating the statement that the bond pool's priority was ensuring
sufficient money for coal reclamation (2007), and later, due to
drafting error, eliminating the corresponding provision authorizing the
funding of reclamation of non-coal sites (2009). Ohio also added a
provision that authorizes use of the bond pool to pay necessary
administrative costs of the RFFAB.
Ohio revised subsection (C), which relates to contracts by DMRM to
perform reclamation work, to add that, without advertising for bids,
DMRM may contract with a contractor hired by a trustee if the
performance security is held in trust. In 2011, Ohio further revised
this list to include a contractor hired by the trust administrator of
an alternative financial security provided under ORC 1513.16(F)(8) to
provide long-term water treatment or a long-term alternative water
supply at areas for which the permittee defaulted or has not fully
funded an alternative financial security.
Ohio redrafted subsection (D), related to expenditures from the
bond pool for reclamation, clarifying in paragraph (1) that the money
from forfeited performance security applicable to an area of land and
credited to the Reclamation Forfeiture Fund will pay for the cost of
completing reclamation of that land to the standards established by
Ohio's coal mining statute and regulations. Ohio created paragraphs (2)
and (3) to distinguish between sites with conventional (full-cost)
performance security and those that rely on the bond pool, and
paragraph (4) to enumerate prohibition on uses of the bond pool. Ohio
revised each of these paragraphs in 2011 to recognize alternative
financial security created under ORC 1513.16, discussed above.
Paragraph (2) specifies that any forfeited conventional performance
security provided under ORC 1513.08(C)(1) or alternative financial
security will be used to complete reclamation that the operator failed
to perform under their permit. Paragraph (3) provides that, for permits
covered by the bond pool, DMRM will first use forfeited performance
security provided under ORC 1513.08(C)(2) (the $2500/acre amount) or
alternative financial security, then, if that amount is insufficient,
DMRM must notify the Board. Ohio also specifies that DMRM may expend
money from the bond pool derived from the severance tax under ORC
5749.02 or the fee levied by ORC 1513.16(F)(8)(c), but not in an amount
that exceeds the difference between the performance security and the
estimated cost of reclamation determined under ORC 1513.08. Ohio also
added paragraph (5) to limit expenditure for funding alternative
financial security to the remaining balance not yet funded by the
operator by increment. Following several revisions between 2007 and
2011, paragraph (4) generally prohibits use of the bond pool for long-
term water treatment, making a limited exception for water treatment
funded by alternative financial security pursuant to paragraph (5), and
categorically prohibits use of the bond pool to supplement insufficient
conventional performance security. Ohio made no other revisions to
subsection (E) other than those to account for water treatment and
alternative financial security. In 2007, Ohio added subsection (H),
which requires that all investment earnings of the Reclamation
Forfeiture Fund shall be credited to the bond pool and shall be used
only for the reclamation of land for which the performance security was
provided.
OSM Finding: We have determined that the provisions of this section
do not have any direct counterparts in SMCRA or the Federal
regulations. The revisions to the sources of funding for the bond pool
are not inconsistent with section 509 of SMCRA or 30 CFR 800.11(e)(1),
which require that an ABS assures that the regulatory authority have
available sufficient money to complete the reclamation plan for any
areas which may be in default at any time. Ohio has not indicated in
any of its actuarial reports that it has ever relied on or even used
transfers from the unreclaimed lands fund or the coal mining
administration and reclamation reserve fund (repealed 2017) since the
creation of the severance tax at ORC 5749.02 in 2007. We also find that
even though Ohio had not submitted, and we had not published notice of,
the repeal of ORC 1513.181 before making this finding, notice and
public procedure under section 553 of the APA for removal of these
references in ORC 1513.18 are impracticable, unnecessary, and contrary
to public interest. See 5 U.S.C. 553(b)(B). Notification is unnecessary
because the change occurred now over eight years ago, and there has
neither been any identifiable change to the Reclamation Forfeiture Fund
nor public interest in the change, and notification of this repeal now
would further delay Ohio's remaining provisions, which have been
pending resolution in their current form since 2012, including those
that directly support the bond pool. Additionally, Ohio's revisions to
the severance tax at ORC 5749.02, discussed more below, and the
elimination of the authorization to use funds for the reclamation of
non-coal sites contributes to the solvency of the bond pool. Ohio's
authorization to use the bond pool for necessary administrative costs
of the RFFAB is also a reasonable use of the Reclamation Forfeiture
Fund considering the RFFAB's role in maintaining bond pool solvency.
Next, Ohio's revisions to subsection (C) to authorize sole-source
contracts for the reclamation with contractors hired by trustees is
consistent with the existing list that includes contractors hired by
sureties. Most of Ohio's revisions to subsection (D) simply delineate
between use of funds for sites with conventional performance security
and those that rely on the bond pool, which we approve as integral to
maintaining the solvency of the bond pool. We further approve revisions
to account for Ohio's creation of alternative financial security, as
those instruments are as accountable for uncompleted work to meet the
requirements of the Ohio program as conventional performance security
and their function in forfeiture is the same. Regarding Ohio's proviso
at subsection (D)(3) that DMRM cannot expend money in the bond pool
that exceeds the difference between the $2,500/acre performance
security and the estimated cost of reclamation determine by DMRM under
ORC 1513.08(B) and (E), we note that this provision relies on Ohio's
regulations at OAC 1501:13-7-02(E)(3) (allowing DMRM to revise the
estimated cost of reclamation at any time) and OAC 1501:13-7-06(F)(2)
(allowing DMRM to revise a reclamation plan after forfeiture) and OAC
1501:13-4-06(E)(7) (allowing DMRM to revise the cost of reclamation
upon any permit revision). We will monitor through our regular
oversight function to ensure Ohio is appropriately revising the
estimated cost of reclamation accordingly so that the bond pool is
obligated to all relevant reclamation liabilities. Regarding Ohio's
prohibition on using the bond pool for the long-term treatment of water
after
[[Page 51335]]
reclamation is completed, we note that this prohibition would be
problematic given the requirement at 30 CFR 800.11(e) but for Ohio's
new requirement to provide alternative financial security under ORC
1513.16. As we have noted before, the requirement to have available
sufficient money to complete the reclamation plan includes the funding
for long-term water treatment should it be necessary. Therefore, we
approve this provision so long as Ohio maintains the requirement that
an operator provide alternative financial security as approved above.
Similarly, we approve Ohio's proposal to allow reliance on the bond
pool for the remaining balance of an incrementally funded alternative
financial security in compliance with subsection (D)(5). Finally,
crediting the investment earnings back into the bond pool, as directed
by subsection (H), is a prudent measure to help ensure bond pool
solvency. Overall, as evidenced through the actuarial reports we
discuss below, Ohio's revisions to the mechanics of the Reclamation
Forfeiture Fund are consistent with 30 CFR 800.11(e)(1), and we approve
ORC 1513.18 in its existing form.
ORC 1513.181: Coal Mining Administration and Reclamation Reserve Fund
(Transferred Funds) (Revised by HB 443, Later Repealed)
Subsequent to Ohio's submission of this amendment, Ohio repealed
this section through House Bill 49 (approved June 30, 2017), 2017 Ohio
Laws 14, to consolidate various funds that DMRM used to support the
administration and enforcement of various laws under its purview,
including the coal mining administration and reclamation reserve fund
which had been used for the administration and enforcement of ORC
Chapter 1513. See Ohio Legislative Service Commission, Final Analysis
of Am. Sub. H.B. 49, pp. 479-480 (corrected version). In addition to
funding administration and enforcement, ORC 1513.181 also allowed the
transfer of up to one million dollars annually to the Reclamation
Forfeiture Fund created in ORC 1513.18, in support of the solvency of
Ohio's bond pool. Before its repeal in 2017, the 2007 revisions from HB
443 had already redirected various fines formerly deposited in the coal
mining administration and reclamation reserve fund to the Reclamation
Forfeiture Fund. The additional revisions from HB 443, eliminating
certain transfers out of the coal mining administration and reclamation
reserve fund for noncoal and abandoned coal land reclamation, are
discussed generally below in our analysis of ORC 1513.30.
OSM Finding: The Federal regulations at 30 CFR 732.17(b)(6) require
that a State notify us of any ``[s]ignificant changes in funding or
budgeting relative to the approved program.'' We do not consider a
State's consolidation or rearrangement of statutorily created funds or
accounts to, by itself, constitute a significant change in funding or
budgeting absent a significant change in the amount of funds allocated
to the State program relative to its costs. Here, the Ohio's funds that
were held in the coal mining administration and reclamation reserve
fund and used to support the Ohio's bond pool are now held in the
Reclamation Forfeiture Fund created under ORC 1513.18, and those used
to support the administration and enforcement of Ohio's coal regulatory
program are held in the Mining Regulation and Safety Fund under ORC
1513.30. Since the repeal of ORC 1513.181 is offset by related
revisions to ORC 1513.18 and ORC 1513.30, we find that it does not
affect the implementation, administration or enforcement of the
approved State program and we approve it. We find that even though Ohio
had not submitted, and we had not published, notice of this repeal
before making this finding, notice and public procedure under section
553 of the APA for this provision is impracticable, unnecessary, and
contrary to public interest. See 5 U.S.C. 553(b)(B). Notification is
unnecessary because the change occurred now over eight years ago, with
no identifiable change in program funding or public interest in the
change, and notification of this repeal now would further delay Ohio's
remaining provisions which have been pending resolution in their
current form since 2012.
ORC 1513.182: Reclamation Forfeiture Fund Advisory Board (Created by HB
443)
This is a new section that provides for the creation of the
Reclamation Forfeiture Fund Advisory Board (RFFAB or 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 bond pool to accomplish
its purposes; 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.
OSM Finding: The Federal regulations at 30 CFR 800.11(e)(1) require
that an ABS assures that the regulatory authority has sufficient money
to complete the reclamation plan for any areas which may be in default
at any time. By establishing this advisory board, Ohio is creating a
mechanism to continuously review the status of Ohio's bond pool and
provide ongoing recommendations to the Governor and the legislature on
what adjustments need to be made to the bond pool to ensure its
solvency, which should help Ohio comply with 30 CFR 800.11(e). However,
we cannot approve subsection (E)(3), which authorizes the RFFAB to
adopt rules to adjust the rate of the tax levied under ORC 5749.02.
Section 517(g) of SMCRA, 30 U.S.C. 1267, and its implementing
regulations at 30 CFR part 705, generally prohibit State employees
performing any function or duty under SMCRA from having a direct or
indirect financial interest in any coal mining operation. The
definition of employee at 30 CFR 705.5 excludes members of advisory
boards established in accordance with State law to represent multiple
interests, which allows them to have and maintain an otherwise
prohibited financial interest in any coal mining operation. However,
those members must still file a statement of financial interests
pursuant to 30 CFR 705.11(a) and recuse themselves from proceedings
that may affect their direct or indirect financial interests pursuant
to 30 CFR 705.4(d). We adopted that balance for multi-interest boards
to recognize the delicate political judgments and compromises made by
States in creating these boards, many before the enactment of SMCRA.
See 51 FR 37118, 37121 (Oct. 17, 1986). In that same notice, we
acknowledged
[[Page 51336]]
that a State board's rulemaking functions may have a widespread effect
on the financial interest of coal companies and found that 30 CFR
704.5(d) was sufficiently descriptive to enable all affected persons to
evaluate whether recusal is required by a particular member of a
rulemaking board. Id. at 37119. We find here that the authority to
adjust the bond pool tax on coal operators may affect a RFFAB member's
direct or indirect financial interest, and that Ohio does not require
recusal for RFFAB members under OAC 1501:13-1-03 (Restrictions on
financial interest of employees). Therefore, we do not approve that
rulemaking power under subsection (E)(3). Because the other powers of
the RFFAB are only either advisory or ministerial in nature, the RFFAB
members would then be purely advisory and not considered decisionmakers
subject to the prohibition under section 517(g) of SMCRA. See id. at
37121; see also 66 FR 67446 (Dec. 28, 2001) (approving similar bond
pool advisory board in West Virginia). Therefore, we approve the
remainder of ORC 1513.182.
ORC 5749.02: Imposing Tax on Severance of Natural Resources (Revised by
HB 443, HB 119, SB 73)
Ohio revised subsection (A)(1) to increase the coal severance tax
for providing revenue to administer the state's coal mining and
reclamation regulatory program from seven cents to ten cents per ton.
Ohio then recently reduced this amount down to eight cents per ton. See
Ohio House Bill 96 (approved June 30, 2025), 2025 Ohio Laws 14. This
action does not affect the severance tax rates paid by operators in
support of the bond pool. The 2009 amendment from HB 443 also added a
provision at subsection (A)(8) imposing an additional severance tax to
ensure funding for the bond pool, stating that if the operator uses the
bond pool for performance security, then the operator must pay an
additional 14 cents per ton into the Reclamation Forfeiture Fund, in
addition to the $2,500/acre flat rate bond required by ORC
1513.18(C)(2). The new provision also establishes the conditions and
applicable dates for adjustment of this tax, between 12 cents per ton
and 16 cents per ton, that is directly related to the bond pool
balance. In addition, it provides the conditions that must exist for
determining that forfeiture liability no longer exists, and the
severance tax can be discontinued for a period if the bond pool is
solvent. It further provides that an additional 1.2 cents per ton is
required for coal mined by surface mining methods and credited to the
Mining Regulation and Safety Fund under ORC 1513.30. Ohio made
additional revisions in 2013 and 2017 to add introductory language,
make technical revisions like renumbering, and account for the 2017
replacement of the Coal Mining Administration and Reclamation Reserve
Fund with the Mining Regulation and Safety Fund. See Ohio House Bill 59
(approved June 30, 2013), 2013 Ohio Laws 25; and Ohio House Bill 49
(approved June 30, 2017), 2017 Ohio Laws 14.
OSM Finding: We have determined that the provisions in this section
have no direct Federal counterparts, but the revisions to subsection
(A)(1), which generally helps fund Ohio's regulatory program and does
not constitute ``significant changes in funding or budgeting relative
to the approved program'' that would require notification under 30 CFR
732.17(b)(6), as we discuss in further detail in our analysis of ORC
1513.30, below, and are not inconsistent with SMCRA or the Federal
regulations at 30 CFR 732.15(d), requiring sufficient funding for
administration and enforcement of the regulatory program. Regarding the
creation of the bond pool tax at subsection (A)(8) and subsequent minor
revisions, we find that it is no less effective than 30 CFR
800.11(e)(1), which requires that an alternative bonding system assure
that the regulatory authority has available sufficient money to
complete the reclamation plan for any areas which may be in default at
any time. However, for the reasons explained in our analysis of ORC
1513.182, above, we cannot approve the language in subsection (A)(8)
that allows the RFFAB to adjust the rate by rulemaking. Adding a tax
for bond pool participants will improve Ohio's ability to continue
meeting these requirements, particularly strengthening the solvency of
the Reclamation Forfeiture Fund. Additionally, we continually monitor
Ohio's compliance with these requirements through our regular oversight
evaluations. Therefore, we approve the changes to ORC 5749.02.
ORC 5749.11: Nonrefundable Severance Tax Credit (HB 443)
This is a new section that provides for a nonrefundable credit
against the severance taxes imposed on coal production under ORC
5749.02 in the amount listed on a reclamation tax credit certificate
issued by DMRM under ORC 1513.171 for reclaiming land that is not
within the applicant's permit area and that has been adversely affected
by previous coal mining for which the performance security was
forfeited. This provision also describes how a permittee claims the
credit against its taxes and requires the permittee to retain the
certificate for a certain length of time and make it available for
inspection by the tax commissioner.
OSM Finding: Consistent with our approval of ORC 1513.171, we find
that this provision has no direct Federal counterpart but is not
inconsistent with SMCRA or its Federal regulations. ORC 5749.11 itself
relates only to how the tax credit certificate gets applied within
Ohio's tax code and does not affect Ohio's coal regulatory program.
Therefore, we approve this provision and incorporate our discussion
above regarding the tax credit certificate under ORC 1513.171.
C. Bond-Related Regulatory Provisions
Ohio made regulatory changes necessitated by the statutory changes
described above that affected permit requirements involving financial
assurance and the bond pool funding sources. These regulatory changes
include, among other things, adding trust funds as an acceptable form
of performance security (financial assurance), allowing an option for
an operator to post a full-cost performance security and adjusting
severance tax rates. We describe these statutory changes at OAC Chapter
1501:13, Division of Mineral Resources Management, Coal.
OAC 1501:13-1-02: Definitions (Transfer, Assignment, or Sale of Permit
Rights)
In 2019, Ohio expanded the definition of transfer, assignment, or
sale of permit rights at subsection (VVVVVV) to also include a change
in the ownership and operational control of a permittee to a person who
has not held a permit issued under Chapter 1513 of the Ohio Revised
Code for a period of not less than five years where the existence and
name of the permittee remain the same.
In its submission, Ohio explained its rationale for making the
change to this definition, stating that the change is intended to
prevent a person who is not eligible to participate in the bond pool
(by not having held a coal mining permit in the last five years) from
gaining access to the bond pool through a change of ownership or
control that does not change the existence and name of the permittee.
OSM Finding: We find this revision to be consistent with our
analysis and approval of ORC 1513.08(C). We incorporate those findings
here and approve this revision to the term transfer, assignment, or
sale of permit rights at OAC 1501:13-1-02(VVVVVV).
[[Page 51337]]
OAC 1501:13-4-01: General Contents Requirements for Permit Applications
Ohio revised subsection (A)(2) of this rule to delete the word
``significant'' from before the word ``revision'' to clarify that DMRM
will review, and approve or disapprove, applications for all revisions,
not merely significant revisions. Ohio also deleted the provision
formerly at subsection (E) that required each applicant to submit a
permit application fee in the amount of seventy-five dollars per acre
estimated in the application. Ohio has replaced the permit fee with an
additional severance tax on coal as noted in our finding for ORC
1513.07.
OSM Finding: Ohio's deletion of the word ``significant'' from
subsection (A)(2) makes this provision consistent with 30 CFR 774.13,
Permit revisions, which requires review of all permit revisions, noting
specific additional requirements and guidelines for significant
revisions. Ohio deleted the permit application and renewal fees in this
rule consistent with the statutory revision at ORC 1513.07(B)(1), which
we discuss above and approve. Therefore, we approve these revisions to
OAC 1501:13-4-01.
OAC 1501:13-4-06: Permit Applications, Revisions, and Renewals, and
Transfers, Assignments, and Sales of Permit Rights
In 2009, Ohio revised subsection (E) to add the requirement that
DMRM reviews all permit revisions 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. The successor can fulfill this requirement 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 bond pool, or by providing sufficient performance
security under the full-cost option.
OSM Finding: We have determined the provision requiring DMRM to
review permit revisions for potential adjustments to the reclamation
cost is no less effective than the Federal regulations at 30 CFR
800.15(d). Ohio's revision clarifies that this determination is DMRM's
responsibility. We have determined the provision about permit
succession and performance security is no less effective than the
Federal regulations at 30 CFR 774.17(d). Ohio includes the requirement
that exists under the Federal regulations and includes a proviso to
account for the eligibility requirements that control participation in
its bond pool. Therefore, we approve the revisions to OAC 1501:13-4-
06(E)(7) and 1501:13-4-06(H).
OAC 1501:13-4-12: Requirements for Permits for Special Categories of
Mining
For coal preparation plants or support facilities not located
within the permit area of a specified mine, Ohio revised subsection
(I)(2) to add the requirement that each application for a permit must
include the information required for the proposed permit area in
sufficient detail to determine the estimated cost of reclamation in
case the reclamation must be performed by the State due to forfeiture
of the performance security by the permittee. It adds that the
operational detail must be sufficient to determine the greatest
potential reclamation cost liability to the State and that the
applicant must include any other operational detail required that may
affect the cost of reclamation.
OSM Finding: We have determined that this revision is no less
effective than the Federal regulations at 30 CFR 785.21(b), which
requires an operation and reclamation plan with descriptions, maps,
cross sections of the construction, operation, maintenance, and removal
of the preparation and support facilities, and 30 CFR 827.11, which
requires these facilities be bonded consistent with 30 CFR subchapter
J. The revision is also consistent with Ohio's revision to ORC
1513.07(C), discussed above, and we incorporate those findings about
the estimated cost of reclamation here. Therefore, we approve the
revisions to OAC 1501:13-4-12.
OAC 1501:13-7-01: General Requirements for Providing Performance
Security for Coal Mining and Reclamation Operations
Ohio revised this section to conform to the revisions in its
statute at ORC 1513.08, clarifying provisions for those permittees
opting to provide a bond that relies on the Reclamation Forfeiture Fund
and provide new rules for those permittees opting to provide
performance security without reliance on the bond pool (conventional
full-cost performance security). Ohio revised subsection (A)(1) to
bifurcate the general requirements for each option and allow applicants
filing full-cost performance security to do so for each incremental
mining area, a term introduced and discussed above at ORC 1501:13-1-
02(QQQ) and incorporated throughout these revisions. Ohio also added
subsection (A)(1)(c) to prohibit permittees who have elected to provide
full-cost performance security from changing to the bond pool after
coal extraction has begun. Ohio bifurcated subsection (A)(6), relating
to providing performance security for approved increments, which now
requires applicants who provide full-cost performance security to
submit maps at permit application showing the boundaries of each
incremental mining unit within the proposed permit area, instead of the
estimate number of acres to affected in the first permit year, required
of permits relying on the bond pool.
Ohio also revised subsections (B), Estimated cost of reclamation,
(C), Method of providing performance security, and (D), Release of
excess security, to reflect the statutory revisions at ORC 1513.08(B),
(C), and (F). Provisions of this regulation not specifically appearing
in the statute include subsection (B)(2), which requires DMRM to
provide the applicant with a copy of the estimated cost along with the
unit costs used to support the estimate, and a clause in subsection (C)
specifying that the method of providing performance security shall
apply to the entire permit. Finally, Ohio revised subsection (E),
Responsibilities of the chief, to add DMRM's new obligation to estimate
cost, and revise its responsibility to adjust the amount to incorporate
the conditions from OAC 1501:13-7-02(E) rather than simply occurring as
land acreages in the permit area change.
OSM Finding: First, we incorporate here our findings about Ohio's
creation of a conventional, full-cost performance security and
revisions to its alternative bonding system at ORC 1513.08, discussed
above. Concerning the provisions specific to incremental mining units,
we find that Ohio has included all the relevant requirements from the
Federal regulations at 30 CFR 800.11(b)-(d), including the requirement
to file appropriate maps under subsection (b)(3). The provision
prohibiting permittees who choose full-cost performance securities from
changing to reliance on the bond pool does not have a direct
counterpart in the Federal regulations but is consistent with the
requirement at 30 CFR 800.11(e)(1) that the ABS ensures that the
regulatory authority will have sufficient money available to complete
the reclamation. Because the solvency of Ohio's bond pool depends in
part on its tax on coal production, excluding operators who have
already begun to
[[Page 51338]]
produce their coal without paying the tax ensures that all operators
participating in the pool contribute to its solvency for the life of
their operation (and ensures fairness among those participants). We
find that Ohio's provisions at subsections (B), (C), and (D) mirror,
with some minor reorganizing and revised cross-references, the
statutory revisions at ORC 1513.08(B), (C), and (F), that we approve.
Concerning the requirement that DMRM provide the applicant with a copy
of the cost estimate with supporting material, we find this requirement
has no Federal counterpart, but it supplements the required notice and
is well within Ohio's discretion to require. Finally, we find that
Ohio's proviso that the applicant's chosen method of performance
security (bond pool or full-cost) applies to the entire permit area is
already implied by the language of ORC 1513.08. For these reasons, and
the reasons mentioned above in our approval of ORC 1513.08, we approve
the revisions to OAC 1501:13-7-01.
OAC 1501:13-7-02: Amount and Duration of Performance Security
Ohio revised subsection (A) and created subsection (B) to
distinguish the amount of performance security for those permittees
electing to provide performance security with reliance on the
Reclamation Forfeiture Fund from those permittees electing to provide
performance security without reliance on the bond pool (full-cost
performance security). In subsection (A), Ohio also eliminated
effective dates that had become moot and authorized applicants relying
on the bond pool to fulfil their responsibility to repair material
damage and replace water supplies resulting from subsidence by
providing liability insurance so long as the policy contains terms and
conditions that specifically provide for such coverage. Ohio created
subsection (B) to reiterate that applicants providing full-cost
performance security do so in the amount of the estimated cost of
reclamation under OAC 1501:13-7-01 for the entire permit or increment
thereof, and added the provisions from ORC 1513.08(K) that, for
subsidence damage, applicants may either purchase an insurance policy
prior to mining or provide additional performance security in the
amount of the estimated cost to DMRM to repair the damage. Finally,
Ohio added subsection (E), to incorporate the provisions of ORC
1513.08(E) and (F), regarding the adjustment of performance security.
Subsection (E) provides that DMRM may make necessary adjustment at any
time, but includes several minimum events that will trigger a review to
determine if an adjustment is necessary, such as the filing of annual
reports and maps, applications for permit revisions and permit
renewals, etc.
OSM Finding: We find that Ohio's revisions to this section are
substantively identical to those we approve above at ORC 1513.08(C)
(creating the two methods of providing performance security), (K)
(authorizing an applicant to provide insurance for subsidence damage),
and (E) and (F) (relating to adjustments of performance security). We
incorporate our findings for those provisions here. Regarding the
adjustment of bond, we note that 30 CFR 800.15(a) provides a great
degree of discretion to the regulatory authority to decide when a
review for an adjustment is appropriate. For these reasons, we approve
the revisions to OAC 1501:13-7-02.
OAC 1501:13-7-03: Form, Conditions, and Terms of Performance Security
Ohio revised subsection (A) to add trust funds to the list of
acceptable forms of performance security. Ohio made several revisions
to subsection (B), which enumerates terms and conditions for
performance security generally, as well as terms and conditions for
specific types of performance security. Ohio revised subsection (B)(1)
to require the amount of the performance security to reflect the chosen
method of providing performance security (bond pool or full cost), as
provided in OAC 1501:13-7-02, merged subsections (B)(2) and (B)(3), and
added a new proviso at subsection (B)(3) requiring that the name of the
permittee on the performance security be identical to the name of the
permittee on the permit. For surety bonds under subsection (B)(5), Ohio
added that the corporate surety must be licensed to do business in
Ohio. For collateral bonds under subsection (B)(6) (which excludes
letters of credit), Ohio added that the bank holding a cash deposit or
negotiable certificates of deposit must be licensed and operating in
Ohio, that certificates of deposit be issued with a maturity date of
not less than twelve months, and that the permittee must notify DMRM
and submit a revised form if there is a change in account numbers when
a certificate of deposit is being closed and rolled over into a new
certificate of deposit.
Regarding letters of credit under subsection (B)(7), Ohio added
that they must be automatically renewable and for a term not less than
one year. Ohio also specified a process for their replacement if the
bank will not renew them. Ohio revised subsection (B)(8) to specify
that the margin for collateral bond is the ratio of the bond value to
market value. Ohio added subsection (B)(10) to include terms and
conditions for trust funds, including that they must: (a) be in amount
equal to the reclamation cost estimate; (b) be in a form approved by
DMRM and contain all terms and conditions DMRM requires; (c) use
investment objectives specified by DMRM; (d) terminate only as
specified by DMRM upon a determination that no further reclamation is
necessary, that replacement has been filed, or that administration in
accordance with its purposes requires termination; (e) that release of
money from the trust fund be made only upon written authorization from
DMRM or according to a schedule established in an agreement that
accompanies the trust fund; and (f) that the institution serving as the
trustee must be a bank, trust company, or other financial institution
with trust powers that is organized or authorized to do business in
Ohio.
Finally, Ohio removed two provisions related to surety and bank
insolvency and combined them into one provision at subsection (B)(11)
so that it applies to any surety, bank, trust company or other
institution providing any of the forms of performance security. Ohio's
new provision provides that if these institutions become incapacitated
by reason of bankruptcy, insolvency, or suspension or revocation of its
license, then the operator will be deemed in violation. Ohio then
incorporates the process under ORC 1513.08(J), discussed above for
notification, submission of a plan for replacement, and eventual
replacement within certain periods of time depending on the method of
performance security (bond pool or full-cost), including, importantly,
that permittees who are reliant on the Reclamation Forfeiture Fund will
have up to one year to replace coverage.
OSM Finding: First, we incorporate here our findings about the
addition of trust funds as acceptable performance security in our
discussions of ORC 1513.01(W) (defining performance security), ORC
1513.08(I) (authorizing trust funds as performance security), and OAC
1501:13-1-02(WWWWWW) (defining trust fund). In those discussions, we
mentioned the importance of the terms and conditions we placed on the
use of trust funds in our Federal program in Tennessee, see 30 CFR
942.800, and reiterated in our recent approval in West Virginia. We
find that the six conditions that Ohio included here at subsection
(B)(10) are substantively identical to, and no less
[[Page 51339]]
effective than, those we require in Tennessee at 30 CFR 942.800(c)(1),
(2), (4)-(7). Ohio includes the remaining Federal conditions not
referenced here in the language of the other statutory and regulatory
provisions mentioned above, which together capture all the conditions
we required for our Federal program in Tennessee. Therefore, we approve
the provisions here at (A)(4) and (B)(10).
We note that Ohio's provisions about the licensing of entities that
hold performance security derive from ORC 1513.08(G) and we incorporate
our discussion of that section above. We also find that Ohio's
revisions to subsections (B)(5), (B)(6), and (B)(7) reflect the Federal
requirements at 30 CFR 800.20, Surety bonds, 800.21, Collateral bonds,
and 800.30, Replacement bonds, and, to the extent they provide
additional detail conditions or detail, they are no less effective than
the Federal regulations. Similarly, while no Federal regulation exists
that specifically requires the name of the permittee on the performance
security to be identical to the name on the permit, Ohio's requirement
does not render its program less effective than the Federal
regulations. Finally, concerning subsection (B)(11), we incorporate
here our discussion of ORC 1513.08(J) above. We note that Ohio's
provision here is substantively identical to its statutory counterpart,
with some additional phrasing identical to that from the Federal
regulation at 30 CFR 800.16(e)(2). While we approve subsections (B)(11)
and (B)(11)(a), we do so consistent with our decision on ORC
1513.08(J), meaning we do not approve subsection (B)(11)(b) to allow
permittees who have elected to rely on the bond pool up to one year to
replace its performance security.
OAC 1501:13-7-04: Self-Bonding
Ohio proposed revising the self-bonding requirements 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 revision required that a copy of such authorization must
be provided along with an affidavit certifying that such an agreement
is valid under all applicable Federal and State laws.
OSM Finding: By letter dated November 30, 2015 (Administrative
Record No. OH-2194-01), Ohio submitted a program revision that, among
other things, rescinded this rule in its entirety and explained that
Ohio will no longer accept self-bonding. We docketed that amendment at
SATS No. OH-258-FOR. See 85 FR 26413 (May 4, 2020). Therefore, we do
not make any decision on the revisions proposed here and will address
this rule in our final decision on OH-258-FOR.
OAC 1501:13-7-05: Procedures, Criteria, and Schedule for Release of
Performance Security for Permits Reliant on the Reclamation Forfeiture
Fund (Bond Release)
Ohio revised this section to specify that this rule applies to a
permittee that provides performance security together with reliance on
the Reclamation Forfeiture Fund. Ohio revised subsection (A)(1) to
require that the request for approval of a reclamation phase must also
include a request for release of performance security. Ohio revised
subsection (A)(2)(c) to require that the request for approval of a
reclamation phase III must state the number of acres of the area
requested for release that are reclaimed as lands eligible for
remining. Ohio revised subsection (B)(1)(b), regarding the criteria and
schedule for release of performance security, to add that phase II will
be determined to be complete when, among the other enumerated
requirements, any permanent structures to be maintained as part of the
postmining land use are included in the approved reclamation plan.
Concerning the approval of a reclamation phase, Ohio added new
subsection (B)(2)(f) 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
under OAC 1501:13-9-15(O), which includes the revegetation success
standards for lands eligible for remining.
OSM Finding: We have determined that the provision specifying that
this section, as revised, applies only to applicants relying on the
Reclamation Forfeiture Fund is a non-substantive change and does not
affect the implementation of the Ohio program because Ohio proposes to
address the release of performance security for permittees who do not
rely on the bond pool at newly created OAC 1501:13-7-05.1, discussed
below. We have determined that the provision requiring requests for
release of performance security to accompany requests for approval of
reclamation phase work, so that they are made at the same time, is
consistent with Federal regulations found at 30 CFR 800.40, which does
not treat those as separate requests. The provision about the reporting
of remining acres and separation of those acres for phase III bond
release, as well as the provision about the period of liability for
remining area, do not have direct Federal counterparts but are not
inconsistent with SMCRA or the Federal regulations found at 30 CFR
800.40(c)(3) and subsections (c)(2)(ii) of 816.116 and 817.116, which
make the period of revegetation responsibility for lands eligible for
remining different than the period of responsibility for other lands.
The provision about permanent structures is consistent with the
regulations found at 30 CFR 800.40(a)(3) and (c)(1)-(2), which stress
that the work be completed in accordance with the approved reclamation
plan. For these reasons, we approve these revisions to OAC 1501:13-7-
05.
OAC 1501:13-7-05.1: Procedures, Criteria and Schedule for Release of
Performance Security for Permits Not Reliant on the Reclamation
Forfeiture Fund
Ohio created this new rule to apply 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. Ohio used OAC 1501:13-7-05.1 as the template for
this rule, including all the revisions discussed above, with two
general distinctions. First, Ohio made revisions throughout to account
for the relevant term for discretely bonded portions of conventionally
bonded sites--incremental mining unit--defined at OAC 1501:13-1-
02(QQQ), discussed above, as distinguished from the term incremental
area used for permits that rely on the bond pool. Second, Ohio created
subsection (A)(1)(b) to provide that a permittee under this section may
seek approval of a reclamation phase for designated areas within the
permit area or incremental mining unit without simultaneously seeking
release of the relevant performance security. Ohio also made revisions
throughout to accommodate this distinction.
OSM Finding: This new section reorganizes the Ohio Administrative
Code to segregate the procedures for the release of performance
security for permits that rely on the Reclamation Forfeiture Fund from
those that do not. The distinction Ohio created with this rule, by
allowing operators to seek approval of phases of reclamation for
designated areas within the permit area or incremental mining unit,
does not have a basis in the Federal regulations. We understand that an
operator may
[[Page 51340]]
wish to seek approvals for such designated areas as they achieve
reclamation standards, but DMRM may not approve bond release because
the cost estimate for the performance security is based on the entire
acreage of the permit or incremental mining unit. Ohio's process and
criteria for releasing performance security appear to remain the same
and continue to comply with the Federal process and standards at 30 CFR
800.40, as discussed above. Because Ohio's addition of phase approvals
for designated areas is an additional, optional process that does not
otherwise change the requirements for release, we find that it does not
render Ohio's program less effective than the Federal regulations.
Therefore, we approve OAC 1501:13-7-05.1.
OAC 1501:13-7-06: Performance Security Forfeiture Criteria and
Procedures
In addition to minor revisions to account for the Ohio program's
adoption of the terms (and concepts of) performance security and
incremental mining units, Ohio also revised subsection (C)(5) to
account for trust funds as an additional form of performance security,
providing that, should the permittee fail to enter into a reclamation
agreement or fail to comply with the terms of the reclamation
agreement, the forfeiture order must inform the permittee that the
State will proceed as set forth in the terms of the trust agreement.
Ohio revised subsection (C)(1) and deleted subsection (F)(3) to
eliminate the requirement that DMRM determine how much of the
performance security to forfeit based on the given formula, with the
option of forfeiting additional amounts if, during reclamation, it
appears that the cost of reclamation is greater than the performance
bond filed for the incremental area and there remains on file
performance bond which have not already been forfeited Instead, Ohio
added new language to subsection (C)(1) to clarify that DMRM will order
forfeiture of all remaining performance security on deposit for the
permit.
OSM Finding: We have determined that the provisions in this section
are consistent with Federal regulations found at 30 CFR 800.50, which
concerns forfeiture of bonds. The addition of text about forfeiture
procedures if the performance security is a trust is no less effective
than the regulations and is consistent with our determination above
about the conditions on trust funds at OAC 1501:13-7-03(B)(10)(D).
Regarding the forfeiture of all bonds on the permit, incremental area,
or incremental mining unit, we note that 30 CFR 800.50(d)(1) provides
that the operator is responsible for remaining costs required for
reclamation in excess of the bond forfeiture amount, and the State may
complete the reclamation and recover the additional costs. One manner
that Ohio may obtain the extra funds would be to revoke the bond on the
areas remaining for the permit. Additionally, while 30 CFR 800.50(d)(2)
requires the regulatory authority to return any unused funds to the
party from whom they were collected, in States that consider unused
funds to be a so-called `penal bond' and the State reserves the right
to use those funds for approved purposes, we have found that position
to be more stringent than the Federal regulations. See 62 FR 60169,
60171 col. 2 (Nov. 7, 1997). Therefore, we approve these revisions to
OAC 1501:13-7-06.
OAC 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 with reliance on the Reclamation Forfeiture Fund
who wishes to claim a severance tax credit under ORC 5749.11. This rule
sets forth the terms and conditions under which DMRM may approve an
application to perform reclamation on a site not under permit of the
permittee and establishes eligibility and application requirements for
permittees applying for a severance tax credit. It also establishes
procedures for obtaining the severance tax credit once reclamation is
completed.
OSM Finding: This provision has no Federal counterpart. However, as
we mention in our discussion of the tax credit at ORC 5749.11 and the
tax credit certificate at ORC 1513.171, allowing a permit holder in
good standing to reclaim a site that another entity adversely affected
by coal mining, and to receive in return a severance credit, advances
one of the primary purposes of SMCRA, which is ``to protect society and
the environment from the adverse effects of surface coal mining
operations.'' 30 U.S.C. 1202(a). As such, the provision is not
inconsistent with SMCRA or its Federal regulations. Therefore, we
approve the revisions to OAC 1501:13-7-06.1.
OAC 1501:13-7-08: Reclamation Phase Approval Conference and Performance
Security Release Conference
Ohio revised this section (including its title) to accommodate
reclamation phase approvals available pursuant to Ohio's new full-cost
bonding system. This section allows DMRM to approve phases of completed
reclamation on designated areas within the entire permit area or on
specific incremental mining units without a release of performance
security.
OSM Finding: Ohio's revisions merely extend Ohio's existing
conference process, which conforms to the process required by the
Federal regulations at 30 CFR 800.40(f), to Ohio's phase approvals. As
we discussed above regarding OAC 1501:13-7-05.1, Ohio's phase approvals
may precede the release of bond, which can only occur when the entire
incremental mining unit or permit area meets the phase requirements.
The Federal regulations do not contemplate these events occurring
separately, but, in jurisdictions where they do, we find that adding
the opportunity for a conference at phase approval is an appropriate
measure and note that the opportunity for a conference is still
provided at the proposed release of the performance security.
Therefore, we approve the revisions to OAC 1501:13-7-08.
OAC 1501:13-14-05: Informal Conferences
Ohio revised this provision to add adjustments of performance
security to the list of events for which an adversely affected person
may request an informal conference and to make related revisions to the
existing procedures to reflect this addition. For instance, the
revisions provide that the request must be filed with DMRM not later
than 30 days after receipt by the permittee of the proposed performance
security adjustment and that the conference be held within 60 days
following receipt by the permittee of a performance security
adjustment. In 2010, Ohio added paragraph (B)(3) to provide that if the
informal conference has been held, DMRM will 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 DMRM granting or denying the permit in whole or in part and
stating the reasons therefore within 60 days of the conference provided
that DMRM comply with the other time frames established in OAC 1501:13-
5-01 (i.e., making a decision on complete permit applications within
240 days, subject to notice of expected delay provided by DMRM).
OSM Finding: We have determined that the revisions proposed for
this section are consistent with the Federal regulations at 30 CFR
800.15(b)(2), which states that the regulatory authority will provide
the permittee
[[Page 51341]]
with an informal conference on the bond adjustment if requested. This
revision makes clear that this is the case in Ohio when there is a
reduction in bond amount. The revisions remain consistent with our
requirements for informal conferences at 30 CFR 773.6, and 30 CFR 773.7
by establishing a timeline for scheduling an informal conference and
providing a decision after the informal review within 60 days. The
revisions are also consistent with the revisions to ORC 1513.07(I) and
ORC 1513.08(E), which we have approved, and we incorporate the findings
for those sections here. Therefore, we approve the revisions to OAC
1501:13-14-05.
D. Actuarial Analyses and Program Condition
Included in our analysis are eight actuarial reports submitted to
the Ohio Governor by the RFFAB about the Reclamation Forfeiture Fund by
letters dated June 2009, June 2011, June 2015, June 2017, June 2019,
June 2021, June 2023, and June 2025. Our focus in this decision will be
on the 2025 actuarial report with comparisons to the 2023 actuarial
report because these are the most current reports. The previous reports
provide additional snapshots through time of the solvency of the bond
pool and the progress since the analysis began.
In July 2017, Ohio transferred $5 million out of the Reclamation
Forfeiture Fund into the Ohio general fund authorized by the Ohio 131st
General Assembly, which permitted the Director of Management and Budget
to transfer non-general revenue funds. At that time, we expressed our
concerns to Ohio about the impact this withdrawal may have on the
solvency of the bond pool (Administrative Record No. OH.2185.77). Ohio
explained the action and that this was a one-time transfer
(Administrative Record No. OH.2185.78). As noted in the June 2021
letter from the Board transmitting the 2021 Actuarial Report to the
Governor, a total of $4 million has been returned to the bond pool, $2
million in 2019 (see Administrative Record No. OH.2185.88) and another
$2 million in 2021. The Board further noted that restoring this funding
was critical for the bond pool to properly cover reclamation costs and
other liabilities.
The 2025 letter from the Board did not recommend changes to the
severance tax rates. Ohio has not made any adjustments to the rates set
at ORC 5749.02(A)(8) in 2007, which by law self-adjusts between 12
cents, 14 cents, and 16 cents per ton of coal depending on the balance
of the bond pool. The 2025 actuarial report indicated that the
Reclamation Forfeiture Fund met the criteria for long-term solvency to
cover expected liabilities, and that the bond pool's expected long-term
liability decreased from $12.12 million in 2023 to $11.61 million in
2025. The bond pool balance at the end of 2024 was $28,520,000 with no
current liabilities, an increase from the year end 2022 balance of
$26,460,00. The RFFAB in their cover letter indicated that Ohio's DMRM
works diligently to enforce contemporaneous reclamation requirements
and oversee reclamation of bond-forfeited sites. However, the report
also noted that the financial strength of Ohio's coal industry
continued to decline from 2022 to 2024, and the Board must continue to
take a conservative approach in forecasting coal production and
interest income.
Program Condition and 733 Letter
We have determined, based on the information gathered in the
actuarial analyses, and considering the changes we are approving in
this amendment, that Ohio has satisfied the program condition described
at 30 CFR 935.11(h) and the requirements we required in the 733 letter.
The program condition requires Ohio to demonstrate that its bond
pool can assure timely reclamation at all sites for which bond have
been forfeited. The most recent actuarial analysis of the Reclamation
Forfeiture Fund has concluded that the bond pool is solvent in the
short-term and long-term. The provisions approved in this amendment
include an increase in the severance tax that funds Ohio's bond pool,
an expansion of the sources of funding for the bond pool, automatic
severance tax increases if the bond pool falls below specified amounts,
the creation of an advisory board to recommend methods to increase the
amount of the bond pool when needed, and stopping use of the
Reclamation Forfeiture Fund to reclaim non-coal sites.
As we determined when we evaluated West Virginia's bond pool (see
60 FR 51900, October 4, 1995; 66 FR 67446, December 28, 2001; and 67 FR
37610, May 29, 2002), our evaluation of Ohio's Reclamation Forfeiture
Fund focuses on whether Ohio has revised their bond pool to increase
the revenues being added to the bond pool and whether Ohio has adopted
the mechanisms to adequately adjust the revenues and revenue sources to
keep the bond pool solvent. Our analysis to determine if Ohio's
regulatory program meets the requirements of section 509(c) of SMCRA
and 30 CFR 800.11(e) is guided by our Directive STP-1, Appendix L dated
March 20, 2019, and the Secretary of the Interior's [Management By
Objectives (MBO)] entitled, ``Alternative Bonding Systems: An
Analytical Approach and Identified Factors to Consider for Evaluating
Alternative Bonding Systems,'' dated December 4, 1990. In addition to
the analysis of the Ohio regulatory program, we evaluated eight
separate actuarial analyses submitted with this program amendment. Our
analysis indicates that, since 2009, Ohio's Reclamation Forfeiture Fund
has continually improved and is more solvent today than it was in 2009
due to the changes Ohio has made to their program.
Considering the current account solvency and the mechanisms for
adjusting Reclamation Forfeiture Fund income in response to future
conditions, Ohio has demonstrated that its alternative bonding system
can assure timely reclamation at all sites that may be in default.
Accordingly, we consider the conditions of our 733 letter satisfied,
and we are removing the program condition at 30 CFR 935.11(h).
E. Non-Bond Related Statutory Provisions
ORC 1513.02: Chief of Division of Mineral Resources Management--Powers
and Duties (Revised by HB 443)
Ohio revised subsection (A) of this provision to authorize the
chief of DMRM to establish programs and adopt rules governing the use
of diesel equipment in underground coal mines; revised subsection (C)
to add that regulations related to permitting compliance, bond
forfeiture, diesel equipment in underground mines, and potential future
state programmatic general permit issued by the U.S. Army Corps of
Engineers (USACE) must go through Ohio's administrative rulemaking
process under ORC Chapter 119; and added subsection (J) to authorize
DMRM to adopt rules to implement any future state program, covered by
an ACOE-issued state programmatic general permit, for the discharge of
dredged or fill material into the waters of the United States by
operations that conduct surface and underground coal mining and
reclamation operations or restoration of abandoned mine lands. At the
time of this publication, Ohio has not yet entered into a state
programmatic general permit with the USACE.
OSM Finding: First, we note that neither SMCRA nor its implementing
regulations regulate the use of diesel equipment in underground mines,
and SMCRA and its implementing regulations do not proscribe any
[[Page 51342]]
particular rulemaking process for State regulatory authorities.
Therefore, we need not address the revisions to subsections (A) or (C).
Regarding the addition of subsection (J), we note that it does not by
itself change any provision of Ohio's regulatory program; it only
authorizes hypothetical future rulemaking that would independently
constitute a State program amendment under 30 CFR 732.17, made
necessary by independent action by the USACE. Granting the chief the
authority to take measures to implement programs pursuant to USACE
programmatic general permits has no direct Federal counterpart;
however, we find that these provisions are not inconsistent with SMCRA
or its implementing regulations. These provisions facilitate Ohio's
efforts to comply with section 404 of the Federal Clean Water Act by
establishing the departmental authority to implement the related
permits. Therefore, we approve ORC 1513.02(J).
ORC 1513.07: Coal Mining and Reclamation Permit--Application or
Renewal--Reclamation Plan (Revised by HB 443, SB 386, HB 163)
In 2007, Ohio revised subsection (B)(1)(o), related permit
application requirements, to add a provision that, if test borings or
core samplings from the permit area indicate the existence of
potentially acid forming or toxic forming quantities of sulfur in the
coal or overburden to be disturbed by mining, the permit application
also must include a statement of the acid generating potential and the
acid neutralizing potential of the rock strata to be disturbed
calculated in accordance with a method established at ORC 1513.075 or
another calculation method. Ohio also added a corresponding revision at
subsection (E)(8), related to permit application review, that if a
conflict exists between the results of various methods of calculating
potential acidity and neutralization potential for the purpose of
assessing the potential for acid mine drainage, the permit must include
provisions for monitoring and recordkeeping to identify unanticipated
occurrences of acid mine water and impose additional requirements on
mining practices and site reclamation to prevent discharge from the
site.
In 2009, Ohio revised subsection (E)(1), related to permit
application review, to establish that an application will be deemed
complete unless DMRM provides a copy of a written list of deficiencies
to the applicant within 14 days of submission. Ohio also added a
provision to specify that a permit denial must state in writing the
specific reasons for the denial. Separately, Ohio also revised
subsection (E)(1) and (I), related to permit decisions and related
timeframes. These revisions eliminated the condition that a decision to
grant, require modification of, or deny a permit occur in a reasonable
time established by DMRM and replaced that condition with a requirement
that the permit decision occur not later than 240 days after submission
of a complete application; the 240 days does not count time an
applicant is making revisions to the application to provide additional
information required by DMRM. Ohio's revision further specifies that if
DMRM determines that a permit decision cannot be made within that time
frame, DMRM must provide the applicant with a written notice of the
expected delay no later than 210 days following the submission of the
complete application. Ohio's revision at subsection (I)(1) specifies
that DMRM must comply with these timeframes even when an informal
conference has been held.
Finally, in 2011, Ohio revised subsections (E)(2)(e)(i)-(iii),
related to the permit applicant's right-of-entry to the land comprising
the proposed permit area, to emphasize the surface disturbance
resulting from proposed operations. These provisions now provide that,
in cases where the private mineral estate has been severed from the
private surface estate and surface disturbance will result from the
extraction of coal by the applicant's proposed strip mining operation,
the permit applicant must provide the enumerated documents evidencing
its right to cause such surface disturbance.
OSM Finding: The requirement to include information on acid
generating potential and neutralizing potential of rock strata conforms
with Federal permit application standards at 30 CFR 780.22(b)(2), which
more generally requires chemical analysis identifying those strata that
may contain acid- or toxic-forming or alkalinity-producing materials
and to determine their content, and 30 CFR 780.22(c), which allows the
regulatory authority to require additional analysis if necessary to
protect the hydrologic balance or meet performance standards. Likewise,
for the additional monitoring, recordkeeping, and response measures to
identify and address potential acid mine water if conflicting results
exist between various methods of calculating potential acidity and
neutralization potential, we find that when read in conjunction with
ORC 1513.07(E)(2)(c) (requiring the proposed operation to be designed
to prevent material damage to the hydrologic balance outside the permit
area), subsection (E)(8) is no less effective than the Federal
requirements at 30 CFR 773.17, Permit conditions, and 780.21,
Hydrologic information. Ohio imposes these conditions when the
aforementioned conflicting results occur, which may factor into, but
not replace, Ohio's obligation to determine that, overall, the
operation has been designed to prevent material damage to the
hydrologic balance outside the permit area. Therefore, we approve
Ohio's revision to ORC 1513.07(B)(1)(o) and new addition of subsection
(E)(8).
The requirement that DMRM notify applicants of any deficiencies in
writing within 14 days, otherwise the application is deemed complete,
is inconsistent with SMCRA and its implementing regulations. The
automatic presumption of administrative completeness without the
affirmative response from DMRM is less effective than 30 CFR 773.15,
which requires the regulatory authority to issue a written decision
that includes a finding that the application is accurate and complete.
Ohio maintains this same requirement at ORC 1513.07(E)(2)(a). The
Federal regulation and ORC 1513.07(E)(2)(a) place the burden of
establishing that the permit application is complete and in compliance
with the regulatory program on the applicant, and the lack of written
findings by the regulatory authority within 14 days of the permit
application does not make an otherwise incomplete application complete.
While Ohio may have intended this provision to simply begin the clock
for the requirement that DMRM issue permit decisions within 240 days of
the submission of a complete application, discussed below, it is
unclear whether this provision would preclude DMRM from subsequently
basing a permit denial on the incompleteness of the application.
Therefore, we do not approve this revision to ORC 1513.07(E)(1). We
also note here that, in 2015, Ohio further revised this subsection to
state that an application must not be considered incomplete or denied
for lack of right-of-entry documentation provided that the applicant
included such documentation for at least 67% of the proposed
operational area. This revision is the subject of a separate pending
program amendment, which we docketed at SATS No. OH-256-FOR, and we do
not address it here.
Concerning the requirement for DMRM to issue its permit decision
within 240 days of receiving a complete application, we find that, as
drafted, it is no less effective than the Federal regulations at 30 CFR
773.7(a), which states that the regulatory may set a reasonable time in
which to issue its permit decisions. We note that, while
[[Page 51343]]
240 days may not be reasonable for all permits, Ohio's requirement
neither compels DMRM to grant a permit nor considers the permit granted
should DMRM not comply with either the 240-day limit or the 210-day
notice of expected delay. While a permit applicant may use these limits
to compel some decision from DMRM, the revisions do not compel permit
issuance. Therefore, we approve the relevant revisions to subsections
(E)(1) and (I).
Finally, the provision at subsection (E)(2) that applicants must
present right-of-entry documentation only in cases where the mineral
estate and surface estate are severed and surface disturbance will
result from the proposed strip mining is no less stringent than section
510(b)(6) of SMCRA, 30 U.S.C. 1260(b)(6), and no less effective than
the Federal regulations at 30 CFR 778.15. The proposed revisions to the
Ohio regulations contain identical language to the Federal regulations,
with the added clarification that the provisions apply for areas where
surface disturbance will occur. In cases where the applicant owns the
mineral rights to the coal and the operation will not disturb the
surface, the owner of the surface rights will not be affected. Access
points, in the case of room-and-pillar or augur mining, would qualify
as surface disturbance, and applicants would need to present right-of-
entry documentation for such locations. Therefore, we approve the
revision to ORC 1513.07(E)(2)(e). We are doing so with the
understanding that applicants will demonstrate ownership of the mineral
estate in such cases, as required elsewhere in the Ohio program. If we
determine, in the future, that Ohio is implementing this provision
differently, we may require Ohio to submit an amendment to revise its
regulatory program to reflect our understanding of this provision. We
also note that Ohio made a corresponding revision to its regulations at
OAC 1501:13-4-03 in 2016, which is part of a separate program amendment
docketed at SATS No. OH-258-FOR; we will address that provision in a
future amendment.
ORC 1513.073: Designating Areas as Unsuitable for Coal Mining
Operations (Revised by HB 163)
The designation criteria were 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.
OSM Finding: Ohio's clarification about how measurement is made
reflects the language of the SMCRA regulations at 30 CFR 761.11 and
does not substantively change Ohio's existing requirement. We also note
that Ohio made a similar clarification to its regulations at OAC
1501:13-4-03(E) in 2016, which we address in a separate program
amendment docketed at SATS No. OH-258-FOR. Because this clarification
does not change the requirements and reflect the Federal language, we
approve it.
ORC 1513.075: Potential Acidity and Neutralization of Disturbed Strata
(Created by HB 443, Revised by HB 163)
This is a new section that describes how DMRM may evaluate whether
a coal mining permit application has the potential to create acid or
other toxic mine drainage, which DMRM must determine to decide whether
the permit may be approved consistent with the permit application
requirements of ORC 1513.07 and related environmental performance
standards in ORC 1513.16. The rule defines the terms ``potential
acidity'' and ``neutralization potential'' as laboratory measurements
of those parameters that could be produced by material in rock strata
proposed to be disturbed by mining, expressed as tons of acidity or
neutralization potential per 1,000 tons of disturbed overburden. The
rule defines ``test borings or core samplings'' as those performed on
the rock strata, the results of which must be stated in the permit
application. The new rule also describes how the measurement of
potential acidity may be based on laboratory analysis of the pyritic
sulfur content of the coal and overburden rather than total sulfur
content, that tons of rock may be estimated and the sum measurements
for each strata across the proposed permit area may be used to
calculate the site's overall neutralization potential and potential
acidity, and numeric conditions under which proposed mining areas may
not be considered to have the potential to create acid or other toxic
mine drainage.
OSM Finding: Although the provisions in this section have no direct
Federal counterparts, we have determined that they are no less
stringent than SMCRA and no less effective than its implementing
regulations. These provisions provide a sound and reasonable
methodology for measuring the acidity and neutralization potential of
disturbed rock strata. These measurements will be used by Ohio to
improve their decisions in approving permit applications and enforcing
minimization of damage to the hydrologic balance. As we have already
approved Ohio's permitting and hydrologic balance regulations as no
less effective than the Federal regulations at 30 CFR 780.21(h), these
new provisions describing sound methodology for informing Ohio's permit
decisions to ``[a]void acid or toxic drainage'' are likewise no less
effective than the Federal regulations. Therefore, we approve ORC
1513.075.
ORC 1513.076: Agency Coordination and Cooperation Respecting Permits
(Created by SB 386)
This provision is a new section that requires coordination,
cooperation, and communication between the Ohio Department of Natural
Resources and the Ohio Environmental Protection Agency about the
processing of coal mining permit applications. It requires
establishment of a joint-agency task force to ensure that procedures
are established and implemented. Ohio proposes these changes to reduce
delays in processing permits.
OSM Finding: We have determined that these provisions have no
direct Federal counterpart but are not inconsistent with the
regulations found at 30 CFR 731.14(g)(9), which required a State
regulatory authority to provide a narrative description of its permit
coordination system as part of its submission to have its State program
approved by OSM; it is also similar to 30 CFR 773.5, which requires
coordination between different agencies to avoid duplication for the
review of various Federal wildlife and historic preservation laws.
Ohio's addition of this provision ostensibly strengthens or clarifies
the system of cooperation between Ohio's DMRM and EPA to ensure the
proper issuance of permits related to water quality. Therefore, we
approve ORC 1513.076.
ORC 1513.13: Public Adjudicatory Hearings (Revised by HB 443)
Ohio revised this section, which relates to appeals made to the
reclamation commission, to clarify that the party petitioning for costs
and expenses may only be awarded its own 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.
OSM Finding: We have determined that the limitation of expense
reimbursements to the petitioning party is no less effective than the
Federal regulations at 43 CFR 4.1294 and consistent with Ohio's
existing language before the clarification. Therefore, we approve ORC
1513.13(E).
[[Page 51344]]
ORC 1513.29: Council on Unreclaimed Strip Mined Lands (Revised by HB
443, Later Repealed)
Subsequent to Ohio's submission of this amendment, Ohio repealed
this section through House Bill 471 (HB 471) (approved December 19,
2016), 2016 Ohio Laws 140. We discussed the sunsetting of the Council
on Unreclaimed Strip Mine Lands in our approval of Ohio's reclamation
plan amendment docketed at SATS No. OH-259-FOR. See 89 FR 79436 (Sept.
30, 2024). Therefore, we are not issuing a finding on ORC 1513.29 here.
ORC 1513.30: Unreclaimed Lands Fund; Selection of Project Areas
(Revised by HB 443, Subsequently Renamed and Amended)
Subsequent to Ohio's submission of this amendment, in 2016, Ohio
further amended this section through HB 471 to delete references to the
Council on Unreclaimed Strip Mined Lands, discussed above; it was
amended again in 2017 through HB 49, which renamed the Unreclaimed
Lands Fund to the Mining Regulation and Safety Fund and consolidated it
with other funds, such as the mining administration and reclamation
reserve fund created under former ORC 1513.181. See Ohio Legislative
Service Commission, Final Analysis of Am. Sub. H.B. 49, pp. 479-480
(corrected version). In its current form, ORC 1513.30 states that the
Mining Regulation and Safety Fund will be used for: (1) reclaiming
certain coal mine lands, or controlling mine drainage, for which no
cash is held in the Reclamation Forfeiture Fund created by ORC 1513.18;
(2) reclaiming certain under-bonded or unpermitted noncoal mining
operations; and (3) administration and enforcement of Ohio's coal
regulatory program.
OSM Finding: While the use of this multi-purpose Mining Regulation
and Safety Fund extends beyond abandoned mine land reclamation under
Title IV of SMCRA, we acknowledged its relationship to Title IV
reclamation generally in our approval of Ohio's reclamation plan
amendment docketed at SATS No. OH-259-FOR. See 89 FR 79436 (Sept. 30,
2024). To the extent the Mining Regulation and Safety Fund now has
additional elective purposes, Ohio does not rely upon it to ensure the
sufficiency of its Reclamation Forfeiture Fund under ORC 1513.18,
discussed above. Nor have we seen any ``significant changes in funding
or budgeting relative to the approved program'' as a result of the
revisions that would require notification under 30 CFR 732.17(b)(6).
For these reasons, even though Ohio had not submitted, and we had not
published notice of, the 2016 and 2017 revisions to ORC 1513.30, we
find that notice and public procedure under section 553 of the APA, 5
U.S.C. 553(b)(B), for these revisions are impracticable, unnecessary,
and contrary to public interest, and we approve them.
ORC 1513.371: Mined Land Set Aside Fund (Created by HB 443, Revised by
HB 163, Later Repealed and Reenacted for a Different Purpose)
This section was originally included in the proposed rule to create
a ``mined land set aside fund'' consisting of grants made under section
402 of SMCRA, which is part of the Title IV AML program. The provision
was later repealed by Ohio House Bill 59 (approved June 30, 2013), 2013
Ohio Laws 36, and later reenacted for a different purpose through House
Bill 96 (approved June 30, 2025), 2025 Ohio Laws 14, to receive grants
awarded through the federal Infrastructure Investment and Jobs Act,
Public Law 177-58. Neither the former nor the current version of this
provision relates to the State program to regulate surface coal mining
and reclamation operations. Therefore, we are not issuing a finding on
this section. Should this new provision necessitate any revision to
Ohio's Reclamation Plan, we will address it through the process
outlined in 30 CFR part 884.
ORC 1513.372: Immunity From Liability (Created by SB 181)
This provision is a new section establishing the conditions under
which an eligible landowner who allows access to their property for AML
reclamation, or nonprofit organization that provides funding or free
services for an AML reclamation project, is immune from liability for
injuries or damages that occur during an AML or acid-mine drainage
reclamation project. It includes definitions of ``abandoned mine
land,'' ``eligible landowner,' ``landowner,'' ``nonprofit
organization,'' ``reclamation project,'' and ``reclamation project work
area.'' It also establishes procedures for notifying DMRM of known,
latent, dangerous conditions located at the reclamation project work
area. Finally, it sets forth circumstances within which the immunity
would not apply, including the negligence, gross negligence, willful
misconduct, or unlawful activities of the eligible landowner or
nonprofit organization, or the failure to notify the division of known,
latent, dangerous conditions located at a reclamation project work area
that is not the subject of the reclamation project itself.
OSM Finding: We approved a similar statute in West Virginia, where
we acknowledged the EPA's concern about the possible legal effects of
the proposed provisions on its authority under the Clean Water Act. 71
FR 10764 (Mar. 2, 2006). We also note that Ohio's provision cannot
provide immunity from Federal laws. Section 702(a) of SMCRA, 30 U.S.C.
1292, provides that nothing in the Act can be construed as superseding,
amending, modifying, or repealing other Federal laws or regulations
promulgated thereunder. However, we also note that this provision
relates solely to Ohio's abandoned mine land (AML). In our decision on
recent changes to Ohio's approved Reclamation Plan docketed at SATS No.
OH-259-FOR, we explained that generally, States do not request that
OSMRE accept changes to AML statutes or regulations as amendments to
its Reclamation Plan, which is a narrative document that usually is not
in the form of a statute or regulation. See 89 FR 79436, 79437 n.1
(Sept. 30, 2024). For clarity and ease of reference, we recommend that
Ohio submit changes to its Reclamation Plan narrative document under 30
CFR part 884 that are consistent with these statutory amendments.
F. Non-Bond Related Regulatory Provisions
OAC 1501:13-1-02: Definitions
In 2009, Ohio made the following revisions to this section:
Added the term angle of draw, currently at subsection (H), meaning
the angle with the vertical, made by a straight line extending away
from the edge of a mined-out area to the ground surface, spanning the
horizontal distance in which subsidence may occur.
OSM Finding: The Federal regulations do not define this term, but
Ohio's definition conforms to our prior use of that term in the Federal
regulations at 30 CFR 784.20, Subsidence control plan, and 817.121,
Subsidence control. Although we have since removed the relevant
provision from 30 CFR 817.121, see 91 FR 3373 (Jan. 27, 2026), and that
portion of 30 CFR 784.20 is currently suspended, see 64 FR 71652 (Dec.
22, 1999), Ohio's definition does not render the Ohio program less
effective than the Federal regulations, and we approve it.
Revised the terms engineer and surveyor, currently at subsections
(TT) and (OOOOOO), respectively, to clarify professional engineer or
surveyor, consistent with the phrasing of Ohio's
[[Page 51345]]
licensing requirements at ORC Chapter 4733 (Professional Engineers and
Professional Surveyors).
OSM Finding: The Federal regulations do not define these terms;
however, the term professional reflects a qualification provided under
State law. See, e.g., 30 CFR 817.49(a)(11). Therefore, Ohio's revision
is consistent with the Federal regulations, and we approve it.
Revised the term operator, currently at subsection (IIII), to
specify that it may include the permittee or a contract operator, if
the permittee or contract operator are conducting the mining operation.
OSM Finding: The Federal regulations at 30 CFR 701.5 define the
term operator to mean, in pertinent part, any person engaged in coal
mining who removes or intends to more than 250 tons of coal. Ohio's
revision simply states explicitly the implication in both the Federal
definition, and Ohio's definition, that a permittee or a contract
operator may be the entity engaging in coal mining. Therefore, we
approve it.
Added the term shadow area, currently at subsection (ZZZZZ),
meaning the surface areas above, and within the angle of draw of, the
underground workings of underground coal mines. Ohio separately defines
the term underground workings.
OSM Finding: The Federal regulations neither define the term shadow
area nor do they use the term at all. However, the Federal regulations
do make several references to underground workings, noticeably in 30
CFR 817.122, which requires underground mine operators to notify all
owners and occupants of surface property and structures above the
underground workings at least six months before mining. Section 516 of
SMCRA specifically requires the Secretary ``to accommodate the distinct
difference between surface and underground mining.'' 30 U.S.C. 1266. We
have also previously approved Illinois' definition of the term, treated
as distinct from permit area. See 85 FR 12735, 12736 (March 4, 2020).
Therefore, we find Ohio's definition of the term shadow area does not
render the program less effective than the Federal regulations, and we
approve it.
In 2010, Ohio made the following revisions to this section:
Added the term effluent limitations, currently at subsection (RR),
to mean specific, numeric, measurable limits on the amount of various
pollutants that are placed on point source discharges through the
national pollutant discharge elimination system (NPDES), and, for
remining NPDES permits that use non-numeric limitations, to mean best
management practices as required under that remining NPDES permit.
OSM Finding: The Federal regulations at 30 CFR Chapter VII (OSM),
do not define the term effluent limitations; however, several
provisions use the term. Notably, the regulations at 30 CFR 816.42 and
817.42, Hydrologic balance: Water quality standards and effluent
limitations, require that discharges of water from areas regulated
under SMCRA be made in compliance with all applicable State and Federal
water quality laws and regulations, and with the effluent limitations
for coal mining promulgated by EPA at 40 CFR part 434. The EPA defines
effluent limitation at 40 CFR 122.2 and 401.11, to mean, in pertinent
part, any restriction imposed by EPA on quantities, discharge rates,
and concentrations of pollutants discharged from point sources into
waters of the United States. EPA's regulations for coal mining
discharges at 40 CFR part 434, include numerical limitations for all
such discharges except remining discharges, which receive non-numerical
limitations at 40 CFR 434.72. Ohio's definition, while not identical to
EPA's, encompasses both relevant discharge limitations provided by EPA
and does not render Ohio's program less effective than 30 CFR 816.42
and 817.42. Therefore, we approve it.
Added the term national pollutant discharge elimination system and
NPDES, currently at subsection (AAAA), meaning the national permit
program authorized under the Clean Water Act, 33 U.S.C. 1251 et seq.,
that controls water pollution by regulating point source discharges
that discharge pollutants into waters of the United States.
OSM Finding: The Federal regulations at 30 CFR Chapter VII (OSM) do
not define this term. However, it appears generally consistent with
EPA's definition at 40 CFR 122.2, and, important for Ohio's purposes,
its use in defining the terms effluent limitations and remining NPDES
permit, and OAC 1501:13-9-04(N)(2), requiring surface water monitoring
consistent with NPDES permits, and its Federal counterpart at 30 CFR
816.41(e). In sum, this definition does not render the Ohio program
less effective than the Federal regulations, so we approve it.
Revised the term person, currently at subsection (SSSS), to add
that, in addition to the other listed entities, it may be an
individual, business trust, estate, or trust.
OSM Finding: The Federal regulations at 30 CFR 700.5 defines a
person to include, among other things, an individual, partnership,
association, joint venture, company, firm, corporation, or other
business entity. While the Federal definition does not specifically
list business trusts, estates, or trusts, we believe that those
entities are fairly implied in the existing list and specifically
naming them is no less effective than the Federal regulation.
Therefore, we approve this revision.
Added the term point source discharge, currently at subsection
(VVVV), meaning any discernible, confined or discrete conveyance from
which a pollutant is, or may be, discharged into the waters of the
state.
OSM Finding: The Federal regulations at 30 CFR Chapter VII (OSM) do
not define this term. However, Ohio's definition appears to be
consistent with the definitions of the terms point source, discharge,
and discharge of pollutants under EPA's regulations at 40 CFR 122.2,
and Ohio's definitions of the terms discharge and point source under
its water quality regulations at OAC 3745-1-02(35) and (77). Ohio uses
the term point source discharge in its definitions of the terms
effluent limitations and NPDES, described above, in its regulation
relating to protection of the hydrologic system at OAC 1501:13-9-04.
This regulation requires that these discharges be made in compliance
with effluent limitations of all applicable state laws and regulations.
Further, in its regulations relating to reclamation and operations
plans at OAC 1501:13-4-05 and -14, Ohio requires that point source
discharges be monitored in accordance with EPA's regulations at 40 CFR
parts 122, 123, and 434 and as required by the NPDES permitting
authority. These are substantially the same as the Federal regulations
at 30 CFR 816.42 and 817.42, discussed above, and 30 CFR 784.14(i),
regarding surface water monitoring plans. In sum, Ohio's addition of
this definition does not render the Ohio program less effective than
the Federal regulations, and therefore we approve it.
Revised the term pollution abatement area, currently at subsection
(WWWW), to incorporate, to the extent practicable, areas within the
permit area which are adjacent to and nearby the remining operation and
which also must be affected to reduce the pollution load of the pre-
existing discharges and may include the immediate location of the pre-
existing discharges.
OSM Finding: We approved this revision in 2004. See 69 FR 57640,
57643 (Sept. 27, 2004). It is unclear why Ohio did not memorialize this
revision in its regulations until its 2010 submission, but, to the
extent it
[[Page 51346]]
remained unresolved, we incorporate our 2004 findings herein.
Added the term receiving water, currently at subsection (LLLLL),
meaning the specific water body of the waters of the state into which
point and non-point sources flow.
OSM Finding: The Federal regulations do not define this term, and
Ohio only uses the term once in its regulations related to the quality
of water in permanent impoundments at OAC 1501:13-9-04(H)(2). Ohio's
use of the term is identical to that in the Federal regulations at 30
CFR 816.49(b)(2) and 817.49(b)(2), and its definition is consistent
with the context of its use. We approve this addition because it does
not render Ohio's program less effective than the Federal regulations
but note that we will review additional proposed uses of this term in
future program amendments.
Revised the term recurrence interval, currently at subsection
(NNNNN), to add a website address for the National Oceanic and
Atmospheric Administration (NOAA) through which the NOAA technical
report referenced in the definition is available.
OSM Finding: This revision is non-substantive and we approve it.
Revised the term runoff, currently at subsection (VVVVV), by
completely deleting the existing description that the term means
precipitation that is not absorbed by the strata and may flow overland
before entering waters of the state, and instead providing that it
means the overland flow caused by excess rainfall.
OSM Finding: The Federal regulations do not define this term;
however, it does use this term in many provisions. We reviewed Ohio's
use of this term in its other provisions and find that its definition
is consistent with its uses and their Federal counterparts. For
instance, Ohio and the Federal regulations at 30 CFR 701.5, use the
term runoff in corresponding definitions of the terms best technology
currently available, hydrologic balance, intermittent stream, perennial
stream, and recharge capacity, for which Ohio's definition is an
appropriate substitute for the term. Therefore, we approve this
revision.
Revised the term safety factor, currently at subsection (WWWWW), to
eliminate the option that it means the ratio of the available shear
strength to the developed shear stress, leaving only that it means the
ratio of the sum of the resisting forces to the sum of the loading or
driving forces, as determined by acceptable engineering practices.
OSM Finding: The Federal regulations at 30 CFR 701.5 defines the
term safety factor exactly as Ohio had before the proposed revision. In
its rulemaking, Ohio explained that it removed the first clause because
shear strength is mostly associated with materials engineering, and the
remaining more generic clause simpler and easier to understand. We
promulgated the Federal definition as part of the original permanent
Federal program in 1979. See 44 FR 14902, 15320 (Mar. 13, 1979). In
response to public comment offering an alternative definition, we
stated that our definition ``is consistent with that utilized in
engineering texts, design manuals, and other regulations,'' and
provided citations. Id. at 14937. However, in the notice we were
unclear whether we were referring to either clause specifically, or
both. Regardless, we would not have included both clauses if either one
would have been incorrect. Moreover, our engineers provided an informal
review of Ohio's proposal and found that Ohio's remaining definition is
no less effective than the definition at 30 CFR 701.5. Therefore, we
approve this revision.
Revised the term valid existing rights, currently at (DDDDDDD), to
eliminate the existing criteria that were moved to OAC 1501:13-3-01,
and instead simply refer to it as a set of circumstances under which a
person demonstrates compliance with the standards of that provision,
subject to DMRM's approval, where the activity would otherwise be
prohibited under ORC 1513.073(D) or OAC 1501:13-3-03.
OSM Finding: We incorporate here our findings about ORC 1513.073
and OAC 1501:13-3-01 and -03, which we approved elsewhere in this
program amendment. We find that Ohio's decision to simply refer to
those provisions here does not render Ohio's regulations less effective
than the Federal requirements, and we approve the revision.
Added the term water quality standards, currently at subsection
(IIIIIII), meaning the rules set forth at OAC Chapter 3745-1
establishing stream use designations and water quality criteria
protective of such uses for the surface waters of the state.
OSM Finding: While the Federal regulations at 30 CFR Chapter VII
(OSM) do not define the term, Ohio's definition is consistent with
EPA's definition of the term at 40 CFR 130.3, Ohio's water quality
regulations at OAC 3745-1-02(106), and how OSM uses the term throughout
its regulations, particularly 30 CFR 816.42 and 817.42, Hydrologic
balance: Water quality standards and effluent limitations. Therefore,
we approve it.
OAC 1501:13-1-03: Restrictions on Financial Interest of Employees
Ohio added references to the RFFAB, as created and defined in ORC
1513.182, 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, as created and defined in ORC 1513.05, do not have
prohibited financial interests under this rule and, therefore, will
never be ordered by DMRM 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 that
may affect their direct or indirect financial interests. Unlike the
requirements for commissioner members, prohibited financial interest
provisions apply to hearing officers of the Reclamation Commission. As
such, Ohio added specific references to hearing officers to the
provision allowing employees and the chief of DMRM to appeal orders for
remedial action.
Finally, Ohio added additional detail about employees accepting
gifts of nominal value from coal companies, setting that value at
$20.00 per year from a single company; Ohio added information about how
an employee is notified that remedial action is necessary to resolve a
prohibited interest; and Ohio added notice that employees signing a
certification of financial interests without listing known prohibited
interests may result in penalties.
OSM Finding: We have determined that the revisions concerning the
financial interests of RFFAB members are no less effective than 30 CFR
part 705. Section 705.5 defines ``employee'' to exclude such advisory
board members. We have likewise determined that the revisions regarding
members of the Reclamation Commission simply add clarity to existing
requirements for its members. Members of these groups are required to
file statements of financial interest but are only required to recuse
themselves should a conflict of interest with a direct or indirect
financial interest occur with their position. 30 CFR 705.4(d). We have
determined that the remaining revisions are no less effective than
their Federal counterparts in 30 CFR 705.17(c)(4) (penalties for false
certification by employees), 705.18(b) (gifts of nominal
[[Page 51347]]
value), and 705.21(b) (appeals to OSM). While 30 CFR 705.18(b) does not
specifically define gifts of a ``nominal value'', Ohio's decision to
set a limit at $20.00 per year from a single company is fully
consistent with the Federal regulations. Therefore, we approve the
revisions to OAC 1501:13-1-03.
OAC 1501:13-1-10: Availability of Records
In 2009, Ohio deleted from subsection (B)(2) a requirement that
DMRM make documents involving permits and inspection and enforcement
actions available to the public at offices of the county recorder or
U.S. Department of Agriculture within the county where the operation
was occurring if DMRM did not maintain a district office in that
county. Ohio also deleted a provision specifying that, upon request of
any resident of the area where the mining is occurring, copies of the
documents will be sent by mail at the Division's expense.
OSM Finding: The provisions deleted from this section were
effectively reinstated by Ohio in 2016 and are part of another program
amendment that we docketed at SATS No. OH-258-FOR. Therefore, we are
not issuing a finding on these provisions. To the extent Ohio's 2016
rulemaking made revisions that relate specifically to persons other
than residents of the area where the mining is occurring, we will
address those revisions in OH-258-FOR.
OAC 1501:13-1-14: Incorporation by Reference
This is a new rule that includes a list of all Federal regulations
and Federal laws that are referenced 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.
OSM Finding: This provision is not an operative component of Ohio's
regulatory program, provides only references, and reflects a similar
provision that used to exist at the end of OAC 1501:13-1-02
(Definitions). Therefore, we approve its addition. Ohio has made
several revisions to this section since its inception in this program
amendment to correct and/or adjust the references. For clarification,
we do not need to affirmatively make findings for revisions to this
section for the revisions to take effect unless Ohio begins to add
operative regulatory requirements to this section.
OAC 1501:13-3-01: Standards for Demonstration of Valid Existing Rights
This is a new rule that describes the demonstration that a person
must make to claim valid existing rights to conduct coal mining
operations in areas otherwise prohibited under the approved State
program, except for those lands subject to 30 CFR part 761, which
require a demonstration to OSM. To claim valid existing rights, the
regulation requires that a person demonstrate that they have the
property rights necessary to conduct the activity, and either (a) have
all necessary permits or have made a good faith effort to obtain them
or (b) that the land is needed for and immediately adjacent to an
operation meeting the conditions in (a). The rule also allows a person
who claims valid existing rights to use or construct a road for coal
mining operations across the surface of protected lands to provide
other types of demonstrations, such as that the road existed when the
land became protected and that the person has a right to use the road
for coal mining operations.
OSM Finding: We have determined that the provisions in this section
are substantively identical to, and therefore no less effective than,
the definition of ``valid existing rights'' under the Federal
regulations at 30 CFR 761.5. Therefore, we approve the revisions to OAC
1501:13-3-01.
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 to DMRM, which is
required before preparing and applying for a permit or boundary
revision for the land for which the determination is sought. The rule
specifies what information and materials an applicant must provide to
make their property rights demonstration; additional submission
requirements if the basis for their claim involves the good faith/all
permits standard; additional submission requirements if their claim is
based on the ``needed for and adjacent to'' standard; and submission
requirements if the claims involve the use or construction of 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 DMRM; and post-determination process.
OSM Finding: We have determined that the provisions in this section
are substantively identical to, and therefore no less effective than,
the Federal regulations at 30 CFR 761.16. With these changes, Ohio
seeks to clarify the requirements and procedures that must be met when
a request for valid existing rights is submitted to the State.
Therefore, we approve the revisions to OAC 1501:13-3-02.
OAC 1501:13-3-03: Areas Where Mining Is Prohibited or Limited
Ohio reorganized this rule and added a provision to specify that
the provisions of this rule do not apply to mining operations for which
a valid permit existed when the land came under protection of the law.
OSM Finding: We have determined that this provision is
substantively identical to, and therefore no less effective than, the
Federal regulations at 30 CFR 761.11 and 30 CFR 761.12. Therefore, we
approve OAC 1501:13-3-03.
OAC 1501:13-3-04: Procedures for Identifying Areas Where Mining Is
Prohibited or Limited
In 2009, Ohio revised subsection (B) to clarify that an applicant
who seeks a determination of valid existing rights on Federal lands
within the boundaries of a national forest must submit its request to
the Director of OSM for processing under 30 CFR subchapter F. In 2010,
Ohio revised subsection (C) to clarify that this rule applies to
applications for boundary revisions. It also expands the requirements
for obtaining a road permit to include situations where the applicant
proposes to relocate or close a public road. Finally, Ohio revised and
reorganized subsection (D), which sets distance limitations from
occupied dwellings, and waivers thereof, to eliminate redundancy.
OSM Finding: We have determined that the provisions in this section
are substantively identical to, and therefore no less effective than,
counterpart portions of the Federal regulations at 30 CFR part 761
(requiring OSM review for Federal lands within the National Forest
System); 761.14 (requiring process for proposals to relocate or close
public roads); 761.15 (waiver of distance limitations from occupied
dwellings); and 761.17(a) (requiring regulatory authority to review
applications for boundary revisions). Therefore, we approve the
revisions to OAC 1501:13-3-04.
[[Page 51348]]
OAC 1501:13-4-02: Requirements of Coal Exploration
In 2010, Ohio revised subsection (A), which concerns written
notices of intent for coal exploration operations, to remove the clause
specifying that the requirement applies to those operations involving
the removal of 250 tons of coal or less. Ohio also revised subsections
(D) and (F), which concerns coal exploration permits, to add paragraphs
requiring that, for any area where mining is prohibited or limited
under OAC 1501:13-3-03, the application to conduct coal exploration
must include 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 new
paragraphs also require that 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.
Lastly, the new paragraphs require that, before making a finding, DMRM
must 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.
OSM Finding: Ohio's regulation at OAC 1501:13-4-02 addresses the
Federal implementing regulations at both 30 CFR 772.11, which concerns
notices of intent (NOI) for exploration operations removing 250 tons of
coal or less, and section 772.12, which concerns permits for
exploration operations that remove more than 250 tons of coal or that
will occur on lands designated as unsuitable for surface coal mining
operations. In 1983, OSM attempted a revision to 30 CFR 772.11 that
would have effectively required an NOI for coal exploration operations
removing 250 tons of coal or less only if such operation would also
substantially disturb the natural land area. See 53 FR 52942 (Dec. 29,
1988). That revision was challenged in Federal court, was found to be
an unsupported departure from the previous rule and was later suspended
by OSM. Id. (citing In re: Permanent Surface Mining Regulation
Litigation (II), No. 79-1144 (D.D.C. July 15, 1985) and 51 FR 41961
(Nov. 20, 1986). In 1988, OSM removed the reference to the land being
substantially disturbed, noting that operators should not be in a
position to make their own determination of whether their operations
substantially disturb the natural land surface, and that regulatory
authorities should therefore be informed of all exploration occurring
within their jurisdictions. 53 FR at 52943. Ohio, on the other hand,
has a differently structured regulation but effectively a similar
result. Ohio eliminated the reference to 250 tons of coal from its
requirement to file an NOI, but it still exists in the requirement to
obtain a coal exploration permit. Ohio also retained references to the
substantial disturbance of land surface. Therefore, the version of
Ohio's regulation that remains requires a coal exploration permit for
operations that intend to remove more than 250 tons of coal,
substantially disturb the natural land surface, or involve lands
designated as unsuitable. Operations not meeting these triggers may
proceed only under an NOI, but all operations must at least have met
that requirement. In 2018, Ohio removed the reference to the
substantial disturbance of land from the subsection (A) subtitle to
further avoid confusion. To the extent that Ohio requires operations
that substantially disturb the natural land surface to receive a coal
exploration permit where the Federal regulations would only require an
NOI, Ohio has that discretion. For these reasons, we have determined
that the amendments to the provisions in this section are no less
effective than the Federal regulations at 30 CFR 772.11 and 772.12.
Therefore, we approve the revisions to OAC 1501:13-4-02, including
those later made in 2018 which do not substantively affect the
requirements.
OAC 1501:13-4-03: Permit Application, Requirements for Legal,
Financial, Compliance and Related Information
This provision was revised to allow submission of either the
employer identification number or the last four digits of the social
security number for each individual who is identified as having
ownership or control in the permit application. This rule was also
revised to clarify that right of entry information must be provided for
the permit and shadow areas of underground mines.
OSM Finding: We approved changes to this regulation in 2015
following a complete side-by-side analysis with the counterpart Federal
regulations at 30 CFR part 778. See 80 FR 63120 (Oct. 19, 2015). We
also discuss minor revisions Ohio made to this regulation in 2016 in
our discussions of statutory revisions to ORC 1513.02 and 1513.073,
above. Subsequent revisions Ohio made to this regulation in 2016, 2018,
and 2020 are discussed in other state program amendments docketed at
SATS Nos. OH-258-FOR, OH-260-FOR, and OH-263-FOR, respectively. To the
extent we have not specifically addressed Ohio's requirement to provide
right of entry information for shadow areas, we note that although the
Federal regulations do not specifically require right of entry
information for shadow areas of underground mining operations, Ohio has
the authority and the discretion to require more information than
required by Federal law and regulations. We find that the revisions to
this provision are no less effective than the Federal regulations at 30
CFR 778.15.
OAC 1501:13-4-04: Permit Application Requirements for Information on
Environmental Resources
In 2009, Ohio revised subsections (D) (groundwater information) and
(E) (surface water information), by adding aluminum and sulfates to the
list of parameters for which an applicant must analyze water samples.
In 2010, Ohio further revised subsections (J) and (K) to distinguish
between the roles of engineers and surveyors in preparing maps. In
2016, Ohio made significant revisions to this section by including new
provisions about seasonal variation of groundwater and surface water
and moving the mapping provisions of subsections (J) and (K) to OAC
1501:13-4-08. Those revisions are under our consideration as a separate
program amendment docketed at SATS No. OH-258-FOR.
OSM Finding: The Federal regulations at 30 CFR 780.21(b) do not
require sulfates and aluminum as sampling parameters for groundwater or
surface water, but they do not prohibit the regulatory authority from
requiring additional parameters. Ohio asserted in its rulemaking that
it had already been requiring analysis to include aluminum and sulfates
pursuant to its authority to require ``other such information'' DMRM
determines is relevant. See OAC 1501:13-4-04(D)(4)(d)(x) and (E)(2)(j).
For Ohio's revisions about the distinction between surveyors and
engineers, to avoid confusion, we will defer our discussion of these
revisions until our review of their move to OAC 1501:13-4-08 in OH-258-
FOR. Therefore, we approve the revisions to OAC 1501:13-4-04(D) and (E)
related to the addition of aluminum and sulfates as additional
parameters.
[[Page 51349]]
OAC 1501:13-4-05: Permit Applications; Requirements for Legal,
Financial, Compliance and Related Information
In 2009, Ohio deleted from subsection (A)(2)(b) part of a
parenthetical indicating that in order to retain certain facilities
they must be necessary for the postmining land use and instead
indicated that they need only be approved by DMRM. In 2016, following
discussions with OSM, Ohio restored the requirement that the facilities
must be necessary for postmining land use, while keeping the
requirement that such facilities be approved by DMRM. Ohio also added
subsection (A)(3) to include a requirement that it is the applicant's
responsibility to provide information in the detail necessary for DMRM
to determine the estimated cost to reclaim the site in the event of
forfeiture of the performance security. Such information must be
sufficient to determine the greatest potential reclamation cost
liability to the State and include any other operational detail
required by DMRM that may affect the cost. Ohio also revised subsection
(B)(1)(d) to remove an applicant's ability to demonstrate that existing
structures meet interim program performance standards because Ohio had
previously removed its interim program regulations. Ohio revised
subsection (H)(1)(a)(i) to clarify that detailed design plans for each
proposed siltation structure, water impoundment, and coal mine waste
bank, dam, or embankment must be certified by an engineer and cannot
just be prepared under the direction of an engineer. Finally, Ohio
deleted redundant language at subsection (M)(1).
OSM Finding: Because Ohio restored the requirement that the
facilities proposed for retention be necessary for postmining land use
in 2016, we need not address the original revision.
We find that the provision requiring the applicant to provide
information for estimating the cost of reclamation is consistent with
that which we discussed and approved above at ORC 1513.07(C), and we
incorporate that analysis here. We have determined that the provision
concerning existing structures is more stringent than the Federal
regulations at 30 CFR 780.12(a)(4), which still allows existing
structures to meet interim program standards, and is therefore
consistent with the Federal regulations. We have determined that the
provision about design plan certification is no less effective than the
Federal regulations at 30 CFR 780.25(a)(1), which requires the plans to
be certified. Therefore, we approve the revisions to OAC 1501:13-4-05.
OAC 1501:13-4-06: Permit Applications, Revisions, and Renewals, and
Transfers, Assignments, and Sales of Permit Rights
In 2010, Ohio revised subsection (A)(3) to state that an
application is deemed complete unless DMRM notifies an applicant within
14 business days of application submission that the application is
incomplete and provides written notification that identifies the
deficiencies in the application.
OSM Finding: Ohio made this revision to conform its regulations to
the statutory revision at ORC 1513.07(E)(1), discussed above, which we
do not approve. We incorporate our findings for that provision here and
do not approve the revision to OAC 1501:13-4-06(A)(3) for the same
reasons.
OAC 1501:13-4-07: Annual Reports
Ohio revised the requirements that the permittee file information
with DMRM thirty days after each anniversary date of the issuance of a
coal mining and reclamation permit to account for the new ABS and full-
cost performance security methods, which use the terms incremental area
and incremental mining unit, respectively, for different purposes. The
revisions clarify that estimates of acreages are required for both the
permit area and any incremental area or incremental mining unit; remove
requirements to provide surety-specific information that Ohio no longer
collects; requires the annual map to be prepared by or under the
direction of a professional surveyor, eliminating the option for an
engineer to prepare it; requires the annual map to include the
boundaries of each incremental mining unit affected during the permit
year for which the annual report is filed and for all preceding permit
years, replacing the requirement to delineate the perimeter of the area
affected during the permit year that is to be re-affected during the
next permit year; requires the annual map show the incremental area for
the reporting year and all preceding years. Ohio also removed 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 was procured and added that within 30 days after the
completion of mining operations on a permit, a final report must be
filed with DMRM.
OSM Finding: We have determined that the provisions in this section
have no direct Federal counterpart but are not inconsistent with the
Federal regulations at 30 CFR 780.14(b)(3), which requires operation
plans and maps to show each area of land for which a performance bond
will be posted. The revisions are also consistent with Ohio's purposes
under its ABS and full-cost bonding system, and the definitions of
incremental area and incremental mining unit described above at ORC
1501:13-1-02. We incorporate those findings here. Ohio is merely
outlining the requirements for an annual report. Therefore, we approve
the revisions to OAC 1501:13-4-07.
OAC 1501:13-4-09: General Map Requirements
Ohio revised its general map requirements to clarify that acreage
figures must be reported or estimated to the nearest 1/10th of an acre
and to state that professional surveyors, not engineers, must certify
the maps unless the map includes the only depiction of a design element
for proposed features, in which case a professional engineer must also
certify the map.
OSM Finding: We have determined that the provisions in this section
are no less effective than the Federal regulations at 30 CFR 779.24,
Maps: General requirements. Ohio goes beyond the map requirements in
the Federal regulations to add additional requirements about which
professionally licensed professions are required to certify maps
pursuant to State law. These revisions also add additional requirements
by specifying the decimal accuracy required on the maps. As these
changes are consistent with the Federal regulations, we approve the
revisions to OAC 1501:13-4-09.
1501:13-4-13: Underground Mining Permit Application Requirements for
Information on Environmental Resources
OSM Finding: Ohio made the same revisions to this rule that it made
to OAC 1501:13-4-05, discussed above, adding aluminum and sulfates as
testing parameters, and clarifying the roles of engineers and
surveyors. In 2016, Ohio also moved the map and plan provisions from
this section to OAC 1501:13-4-08, which will be addressed in a separate
program amendment at SATS No. OH-258-FOR. Therefore, we incorporate the
findings from above and approve the revisions to OAC 1501:13-4-13(D)
and (E) related to the addition of aluminum and sulfates as additional
parameters and defer the remainder to our decision on OH-258-FOR.
[[Page 51350]]
OAC 1501:13-4-14: Underground Mining Permit Application Requirements
for Reclamation and Operations Plans
Ohio revised this section in the same manner it revised OAC
1501:13-4-05, discussed above, with two additional revisions unique to
underground mines. First, we incorporate our discussion of retaining
existing structures, the estimated cost of reclamation, interim
standards, and redundant language from that provision here. Here, Ohio
also revised its mapping provisions at subsection (M) to replace
``areas above underground workings'' and ``underground workings'' with
the term shadow area, defined at OAC 1501:13-1-02(ZZZZZ), and requires
the map to show the angle of draw, a term defined at OAC 1501:13-1-
02(H), both terms discussed and approved.
OSM Finding: We incorporate our findings about the retention of
existing structures, estimated cost of reclamation, and interim
standards from OAC 1501:13-4-5 here. We have determined that the
provision concerning maps of the shadow area that show the angle of
draw is no less effective than the Federal regulations at 30 CFR
784.20, Subsidence control plan, and consistent with our approval of
the defined terms shadow area and angle of draw from OAC 1501:13-1-02,
which we also incorporate here. Therefore, we approve the revisions to
OAC 1501:13-4-14.
OAC 1501:13-4-15: Authorization To Conduct Coal Mining on Pollution
Abatement Areas
In 2009, Ohio revised this rule to replace the term bond with
performance security, the terms operator and applicant with the term
permittee, where applicable, and made other minor editorial revisions.
In 2010, Ohio codified revisions it had originally proposed in 2003,
with some modifications, as well as additional substantive and minor
revisions. Ohio revised subsection (A), Applicability, to clarify that
applicants who seek authorization to conduct coal mining operations on
certain previously mined areas under this rule do so with modified
effluent limitations of a remining NPDES permit. Ohio revised
subsection (C)(2), concerning the data necessary to determine baseline
pollution load, to require that sampling locations be selected from
among (instead of `including, but not limited to') all surface-water
bodies, groundwater sites, and all discharges from the pollution
abatement area into surface water bodies. Ohio also added a reference
to the new exception to baseline sampling at subsection (C)(4),
discussed below, and clarified that DMRM may increase the number of
samples and/or lengthen the sampling period. Ohio added subsections
(C)(3) and (C)(4) to provide new exemptions from meeting numeric
requirements of total suspended solids and settleable solids, or
numeric effluent limitations, respectively. Ohio also added total
aluminum to the required sampling program at subsection (C)(5) and
eliminated the requirement that the permittee notify DMRM before and
upon completion of each step of the abatement plan formerly at
subsection (E)(3). Ohio repurposed subsection (F)(1), which required
that non-pre-existing discharges be treated, to state that all pre-
existing discharges commingled with active mining wastewater must be
treated until the pollution abatement plan is implemented and the
commingling has ceased. Ohio revised subsection (F)(2) to clarify that
EPA's regulations at Appendix B of 40 CFR part 434 will be used to
determine whether numeric effluent limitations established in the
remining NPDES permit are exceeded, and revised subsection (F)(4) to
state that sampling sites will be determined by DMRM, rather than
proscribing that they be acquired at the farthest downstream discharge
point of any, or any series of, sedimentation ponds.
OSM Finding: In 2004, we approved Ohio's proposed provisions at
subsections (C)(3), (C)(4)(a) and (C)(4)(b) (formerly proposed as
subsections (C)(2)(a)-(c)), the elimination of subsection (E)(3), and
the revisions to subsection (F)(1). See 69 FR 57640, 57643 (Sept. 27,
2004). We incorporate those findings herein and note only that Ohio
made minor editorial revisions to account for the reordering and
reference their relation to other provisions. Ohio also omitted ``a
pre-existing discharge that is too large to adequately assess via
collection'' from its original list of examples of when collection of
samples to establish baseline pollution load is infeasible to conform
with EPA's regulation at 40 CFR 434.72(b)(2). Concerning the remaining
revisions, we discuss below that EPA, which is primarily responsible
for establishing effluent limitations, concurred in the proposed
changes after finding that they comport w
[…truncated; see source link]Indexed from Federal Register on August 7, 2026.
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