1501:13-4-05 Permit application requirements for reclamation and operations plans.

 

 

 

Rule Summary and Fiscal Analysis (Part A)

 

Department of Natural Resources

Agency Name

 

Division of Mineral Resources Management-Coal

Mike Shelton

Division                                                                  Contact

2045 Morse Road Bldg. D-3 Columbus OH 43229-6693

614-265-6891        614-261-9601

Agency Mailing Address (Plus Zip)                                       Phone                     Fax

1501:13-4-05

Rule Number

AMENDMENT

TYPE of rule filing

Rule Title/Tag Line              Permit     application     requirements        for     reclamation       and

operations plans.

RULE SUMMARY

1.  Is the rule being filed consistent with the requirements of the RC 119.032 review? Yes

2.  Are you proposing this rule as a result of recent legislation? Yes

Bill Number: HB443               General Assembly: 126           Sponsor: Uecker

3.  Statute prescribing the procedure in accordance with the agency is required to adopt the rule: 119.03

4.  Statute(s) authorizing agency to adopt the rule: 1513.02

5.  Statute(s) the rule, as filed, amplifies or implements: 1513.07

6.  State the reason(s) for proposing (i.e., why are you filing,) this rule:

To update the rule with the changes made by HB 443 of the 126th General Assembly and to comply with Ohio's five-year rule review requirement.

7.  If the rule is an AMENDMENT, then summarize the changes and the content of the proposed rule; If the rule type is RESCISSION, NEW or NO CHANGE,

then summarize the content of the rule:

This rule contains permit application requirements for reclamation and operations plans.

The Division of Mineral Resources Management has fully reviewed this rule consistent with ORC 119.032 and in light of the changes made by HB 443 of the 126th General Assembly and HB 119 of the 127th General Assembly, and has determined that the following revisions are needed:

(A)(2)(a)(iii), (F)(2)(a), (H)(2)(b), (H)(6), (M)(1)(c) and (d), (M)(2), (P)(1)(a).

Punctuation, typos corrected.

(A)(2)(b). Revised to require approval by the chief if facilities are to be retained for postmining use.

(A)(3). This is a new paragraph that requires each surface mining application to contain information that will allow the chief to determine the estimated cost of reclamation.

(B)(1)(d). This paragraph has been revised to remove the language that referred to the Division's no-longer-existent interim standards. This means that all existing structures will have to meet current performance standards, since there are no earlier, less stringent standards in effect anymore.

(D)(1) and (G)(1)(b). "mining and reclamation rules" changed to "rules adopted thereunder" and "these rules."

(H)(1)(a)(i). "and certified by" added to clarify the engineer's responsibility for this portion of the reclamation plan.

(H)(1)(b) and (H)(6). The full reference to the U.S. Department of Agriculture's Technical Release No. 60 added.

(M)(1)(f). Paragraph removed because it requires a general description when a detailed description is already required in paragraph (M)(1).

(M)(2)(i). Paragraph reference removed in order to simplify rule revisions in the future, since rule 1501:13-1-02 is often revised. Removing the specific paragraph numbering for the definition of embankment does not make this rule more difficult to understand, since the definitions in 1501:13-1-02 are listed in alphabetical order.

8.  If the rule incorporates a text or other material by reference and the agency claims the incorporation by reference is exempt from compliance with sections

121.71 to 121.74 of the Revised Code because the text or other material is

generally available to persons who reasonably can be expected to be affected

by the rule, provide an explanation of how the text or other material is generally available to those persons:

This rule incorporates several texts by reference that are easily available to the public either on-line, such as from the U.S. Government Printing Office, U.S. EPA,

U.S. Department of Labor, or U.S. Department of Agriculture websites, or at a public library. These texts are:

The Clean Air Act, 42 USC 7401 et seq.; website http://www.epa.gov/air/caa/

The Clean Water Act, 33 USC 1251 et seq.; website http://www.epa.gov/lawsregs/laws/cwa.html

U.S. Code of Federal Regulations, EPA requirements, 40 CFR parts 122, 123, and 434; websites http://www.access.gpo.gov/nara/cfr/waisidx_08/40cfrv21_08.html and http://www.access.gpo.gov/nara/cfr/waisidx_07/40cfrv29_07.html

U.S. Code of Federal Regulations, MSHA requirements, 30 CFR 77.216, 77.216(a), 77.216-2(a);

website http://www.msha.gov/30CFR/CFRINTRO.HTM

U.S. Department of Agriculture, Soil Conservation Service Technical Release No. 60, "Earth Dams and Reservoirs," 1985. Not available on-line, copies at State Library of Ohio, Columbus, Ohio, DMRM headquarters, Columbus, OH, or from the National Technical Information Service, Springfield, VA, Order No. PB8757509, order via website http://www.ntis.gov/

The National Register of Historic Places pursuant to the National Historic Preservation Act, as amended, 16 USC Section 470 et seq.; website http://www.nps.gov/history/history/online_books/fhpl/nhpa.pdf and

The Endangered Species Act of 1973, as amended, 16 USC 1531 et seq. website http://www.fws.gov/laws/lawsdigest/esact.html

Moreover, under ORC Section 121.76(B), ORC Sections 121.71 to 121.75 do not apply to the coal regulatory program of the Division of Mineral Resources Management because the rules in this program are necessary to maintain authorization of a federally delegated program in Ohio and to maintain compliance with federal requirements in order to receive federal funds. So, in regard to that authorization and compliance, the rule incorporates the texts by reference.

9.  If the rule incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material electronically, provide an explanation of why filing the text or other material electronically was infeasible:

Not Applicable.

10.  If the rule is being rescinded and incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material, provide an explanation of why filing the text or other material was infeasible:

Not Applicable.

11.  If revising or refiling this rule, identify changes made from the previously filed version of this rule; if none, please state so:

This rule is being refiled to correct an error in the wording of new paragraph (A)(3)(a). The previous version used the phrase "the greatest potential performance security liability of the proposed permit area," while the refiled version instead says "the greatest potential reclamation cost liability to the state." The latter phrasing is also used in two other rules in this package, 1501:13-4-12 (I)(2)(a) and

1501:13-4-14 (A)(3)(a), to describe the operational detail that is to be included in a permit application so that the chief can determine the estimated cost of reclamation.

12. 119.032 Rule Review Date: 2/6/2009

(If the rule is not exempt and you answered NO to question No. 1, provide the scheduled review date. If you answered YES to No. 1, the review date for this rule is the filing date.)

NOTE: If the rule is not exempt at the time of final filing, two dates are required: the current review date plus a date not to exceed 5 years from the effective date for Amended rules or a date not to exceed 5 years from the review date for No Change rules.

FISCAL ANALYSIS

13.  Estimate the total amount by which this proposed rule would increase/ decrease either revenues /expenditures for the agency during the current biennium (in dollars): Explain the net impact of the proposed changes to the budget of your agency/department.

This will increase expenditures. See analysis below.

Most of the amendments proposed in this rule consist simply of minor changes and corrections and will therefore have no fiscal impact on the agency during the current biennium.

The fiscal impact of determining the estimated cost of reclamation under paragraph (A)(3) of this rule is addressed in the fiscal analysis below.

Fiscal analysis for rules 1501:13-4-05, 13-4-06, 13-4-07, 13-4-12, 13-4-14, 13-7-01,

13-7-02, 13-7-05, 13-7-05.1, 13-7-06, and 13-14-05.

The collective fiscal impact that these rule amendments will have on agency expenditures is approximately $458,000 annually.

HB 443 of the 126th General Assembly amended Chapter 1513. of the Ohio Revised Code to add provisions that significantly impact the workload of the Division of Mineral Resources Management. All of the rules noted above require amendment as a result of changes to ORC section 1513.08 and have the collective impact presented here.

ORC section 1513.08(C) created two different methods of providing performance security, a full-cost method and a bond pool method. Under either method, as provided in 1513.08(C), a permittee can elect to provide performance security incrementally, rather than for the entire permit at once. ORC 1513.08(B) requires the Chief of DMRM to determine the estimated cost of reclamation for each permit and ORC 1513.08(F) requires the Chief to adjust the estimated cost as conditions change. These provisions taken together have caused the DMRM to restructure its program to provide for technical staff review both during the application process and in the field during the mining and reclamation work to account for the cost of reclaiming the proposed or permitted mine site should the state be required to perform the reclamation due to forfeiture.

The crucial element of HB 443's performance security provisions is the Chief's duty to determine and to adjust the estimated cost of reclamation. The estimated cost of reclamation is included as new language in rules 1501:13-4-05 (A)(3),

1501:13-4-06(E)(7), 1501:13-4-12 (I)(2), 1501:13-4-14 (A)(3), 1501:13-7-01 (B),

1501:13-7-02(E), 1501:13-7-06(C)(1) and 1501:13-14-05. This estimate must be

accurate and must be consistently and reliably updated as conditions on the permit change. The amount of money available to the Division for reclamation in case of forfeiture absolutely depends upon an accurate, up-to-date estimate.

The Division is in the process of hiring more technical staff to determine and to update the estimated cost of reclamation for each permit and to allow for more

on-site monitoring. The goal is to make sure, throughout the course of mining, that each mine's disturbed area, as described in the approved mining and reclamation plan, is adhered to. The Division estimates the cost of this staff increase as

$458,000 annually.

14.  Identify the appropriation (by line item etc.) that authorizes each expenditure necessitated by the proposed rule:

Fund 526, the Coal Mining Administration and Reclamation Reserve Fund, is used to support the operating costs of the coal regulatory program and to bring in federal matching funds.

For bond pool permits, the Reclamation Forfeiture Fund, Fund 531, is to be used for reclamation of a mine site in case of forfeiture of the permit.

15.  Provide a summary of the estimated cost of compliance with the rule to all directly affected persons. When appropriate, please include the source for your information/estimated costs, e.g. industry, CFR, internal/agency:

Most of the amendments proposed in this rule filing will impose no cost of compliance upon a coal mining applicant. The fiscal impact of providing the information required under paragraph (A)(3) of this rule so the chief can determine the estimated cost of reclamation is addressed below. Prior to the passage of HB 443, coal permittees provided performance security in the amount of $2500 per acre, with a minimum of $10,000. Under the provisions of HB 443 and as reflected in the amendments to the rules noted above in question 13, the amount of performance security is tied to the individual mining and reclamation plan and to the actual on-the-ground specifics of each mine site; the minimum performance security is still $10,000. The Chief's duty to determine and to adjust the estimated cost of reclamation requires that coal mine operators provide detailed information regarding the parameters that affect the cost of reclamation, such as the size and number of pits and impoundments, the linear feet of highwall, and the number of acres of ungraded backfill material. This has a minor impact on an applicant's or permittee's cost of operation.

16.  Does this rule have a fiscal effect on school districts, counties, townships, or municipal corporations? No

17.  Does this rule deal with environmental protection or contain a component dealing with environmental protection as defined in R. C. 121.39? Yes

You must complete the Environmental rule Adoption/Amendment Form in order to comply with Am. Sub. 106 of the 121st General Assembly.

                                                                                                                                             

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Environmental Rule Adoption/Amendment Form

Pursuant to Am. Sub. H.B. 106 of the 121st General Assembly, prior to adopting a rule or an amendment to a rule dealing with environmental protection, or containing a component dealing with environmental protection, a state agency shall:

(1)    Consult with organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment.

(2)   Consider documentation relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or rule amendment.

(3)  Specifically identify whether the proposed rule or rule amendment is being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program, whether the proposed rule or rule amendment is more stringent than its federal counterpart, and, if the proposed rule or rule amendment is more stringent, the rationale for not incorporating its federal counterpart.

(4)   Include with the proposed rule or rule amendment and rule summary and fiscal analysis required to be filed with the Joint Committee on Agency Rule Review information relevant to the previously listed requirements.

(A)  Were organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment consulted ? Yes

Please list each contact.

U.S. Office of Surface Mining Ohio Coal Association

Ohio Environmental Council

(B)  Was documentation that is relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or amendment considered ? Yes

Please list the information provided and attach a copy of each piece of documentation to this form. (A SUMMARY OR INDEX MAY BE ATTACHED IN LIEU OF THE ACTUAL DOCUMENTATION.)

U.S. Code of Federal Regulations, Title 30, Chapter VII, Part 780.

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Section 1513.07 of the Ohio Revised Code.

(C)  Is the proposed rule or rule amendment being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program ? Yes

Is the proposed rule or rule amendment more stringent than its federal counterpart ? No

(D)  If this is a rule amendment that is being adopted under a state statute that establishes standards with which the amendment is to comply, is the proposed rule amendment more stringent than the rule that it is proposing to amend? No

Not Applicable