Ohio Regulatory Program, 17802-17806 [E9-8885]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 74, Number 73 (Friday, April 17, 2009)]
[Proposed Rules]
[Pages 17802-17806]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8885]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-253-FOR; Docket ID: OSM-2009-0001]


Ohio Regulatory Program

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

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

-----------------------------------------------------------------------

SUMMARY: We are announcing receipt of an amendment to the Ohio 
regulatory program (the ``Ohio program'') under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). Ohio has 
submitted changes to its regulations as a result of its five-year 
review of Ohio's internal and procedural rules. Changes relate to 
practice and procedures before the reclamation commission, including 
definitions, commission meetings, appearance and practice before the 
commission; appeals to the reclamation commission; filing and service 
of papers; temporary relief; responsive pleadings; discovery; motions; 
pre-hearing procedures; notice of hearings and continuance of hearings; 
site views and location of hearings; conduct of evidentiary hearings; 
reports and recommendations of the hearing officer; and decisions of 
the commission.
    This document gives the times and locations that the Ohio program 
and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments until 4 p.m., d.s.t. May 18, 
2009. If requested, we will hold a public hearing on May 12, 2009. We 
will accept requests to speak at a hearing until 4 p.m., d.s.t. on May 
4, 2009.

ADDRESSES: You may submit comments, identified by OH-253-FOR; Docket 
ID: OSM-2009-0001 by either of the following two methods:
    Federal eRulemaking Portal: www.regulations.gov. The proposed rule 
has been assigned Docket ID: OSM-2009-0001. If you would like to submit 
comments through the Federal eRulemaking Portal, go to 
www.regulations.gov and do the following. Click on the ``Advanced 
Docket Search'' button on the right side of the screen. Type in the 
Docket ID OSM-2009-0001 and click the ``Submit'' button at the bottom 
of the page. The next screen will display the Docket Search Results for 
the rulemaking. If you click on OSM-2009-0001, you can view the 
proposed rule and submit a comment. You can also view supporting 
material and any comments submitted by others.
    Mail/Hand Delivery/Courier: Mr. George Rieger, Chief, Pittsburgh 
Field Division, Columbus Office, Office of Surface Mining Reclamation 
and Enforcement, 4605 Morse Road, Room 102, Columbus, Ohio 43230.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
of this document.
    Docket: In addition to obtaining copies of documents at 
www.regulations.gov, information may also be obtained at the addresses 
listed below during normal business hours, Monday through Friday, 
excluding holidays. You may receive one free copy of the amendment by 
contacting OSM's Pittsburgh Field Division Office.


[[Page 17803]]


George Rieger, Chief, Pittsburgh Field Division, Columbus Office, 
Office of Surface Mining Reclamation and Enforcement, 4605 Morse Road, 
Room 102, Columbus, Ohio 43230, Telephone: (614) 416-2238, e-
mail:grieger@osmre.gov.
Linda Osterman, Hearing Officer, Ohio Reclamation Commission, Ohio 
Department of Natural Resources, 2045 Morse Road, Bldg. F-2, Columbus, 
Ohio 43229, Telephone: (614) 262-1269, e-mail: 
linda.osterman@dnr.state.oh.us.

FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (614) 416-
2238. e-mail: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION:


I. Background on the Ohio Program
II. Description of the Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Ohio Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``[hellip]a State law 
which provides for the regulation of surface coal mining and 
reclamation operations in accordance with the requirements of the Act * 
* *; and rules and regulations consistent with regulations issued by 
the Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). 
On the basis of these criteria, the Secretary of the Interior 
conditionally approved the Ohio program on August 16, 1982. You can 
find additional background information on the Ohio program, including 
the Secretary's findings, the disposition of comments, and conditions 
of approval in the August 10, 1982, Federal Register, 47 FR 34688. You 
can also find later actions concerning Ohio's program and program 
amendments at 30 CFR 935.11 and 935.15.

II. Description of the Amendment

    By a letter dated January 22, 2009 (Administrative Record Number 
OH-2188-01), Ohio sent us changes to its procedural rules. Pursuant to 
Ohio Revised Code 119.032, all State agencies must review their 
internal and procedural rules every five years. In response to this 
requirement, the Ohio Reclamation Commission reviewed its procedural 
rules. The Commission's procedural rules are found at Ohio 
Administrative Code 1513-3-01 through 1513-3-22. This submission 
contains the changes made to the Ohio Administrative Code as a result 
of this review. These changes are identified below, with additions 
italicized and deletions bracketed:
    1513-3-01: Definitions.
    (N) ``Regular business hours'' for the reclamation commission means 
10 a.m. to 6 p.m. Monday through Friday, except for state holidays or 
other days in which offices of the government of the state of Ohio are 
permitted to close due to weather, safety or other unforeseeable events 
which present a risk to the public or to the commission employees. In 
the event of the absence of the office staff, contact information for 
the chairman and vice-chairman of the commission will be prominently 
posted at the commission offices.
    [(N)] (O) ``Rules of the reclamation commission'' means rules 1513-
3-01 to 1513-3-22 of the Administrative code and shall apply to appeals 
filed under both Chapters 1513. and 1514. of the Revised code, unless 
specifically provided otherwise.
    1513-3-02: Internal regulations.
    (B) Four members constitute a quorum, and no action of the 
commission shall be valid unless it has the concurrence of at least 
four members. Where, in rendering a decision, a concurrence of at least 
four commission members is not obtained, the existing record of 
proceedings may be submitted to any absent commission member, who will 
be permitted to participate in the rendering of the decision. [at a 
subsequent commission meeting.]
    1513-3-02: Internal regulations.
    (D) Pursuant to section 1513.05 of the Revised code, the 
reclamation commission shall elect [may appoint] a secretary, who shall 
perform such duties as the commission prescribes, including:
    1513-3-02: Internal regulations.
    (D)(4) Providing notice of all public meetings [hearings] of the 
reclamation commission in accordance with the following procedures:
    (a) Any person may determine the time and place of regularly-
scheduled public meetings [hearings or the time and place of any 
temporary relief hearings] by contacting the office of the reclamation 
commission during regular business hours;
    (b) Upon request, any person may obtain advance notice of all 
regularly-scheduled public meetings [hearings] by supplying the office 
of the reclamation commission with stamped, self-addressed envelopes. 
The office will mail to such person a notice of the time and place of 
meetings [hearings] at least four calendar days before the meeting 
[hearing] is scheduled; [unless the hearing is a temporary relief 
hearing;]
    (c) The reclamation commission shall provide the office of the 
reclamation commission with the time and place of meetings [hearings] 
requiring public notice under the provisions of this rule within 
sufficient time to enable the office to comply with the provisions of 
this rule.
    (d) The time and location for commission meetings shall be 
announced in the Hannah Report published by Rotunda, Inc.
    1513-3-02: Internal regulations.
    (H) Any [The] transcript [or recording] of a [any] proceeding 
before the commission, if filed with the commission [shall be the 
property of the commission and] shall be made available for 
reproduction upon application to the commission and payment of 
reproduction costs.
    (I) Issuance of subpoenas.
    (1) Upon request of a party, or at the initiative of the 
commission, the commission shall issue subpoenas ad testificandum or 
duces tecum.
    1513-3-03: Appearance and practice before the commission.
    (C) Except as prohibited by section 4705.01 of the Revised code, 
any party may appear on his own behalf or may be represented by an 
attorney at law admitted to practice before the Supreme Court of Ohio, 
or by an attorney admitted to practice by the commission pursuant to a 
motion to appear pro hac vice. [In the absence of an attorney, a party 
may represent itself, a partnership may be represented by any of its 
members, a corporation or association may be represented by any of its 
officers and any governmental unit may be represented by an employee 
offering proof of authority.]
    1513-3-04: Appeals to the reclamation commission.
    (B) A notice of appeal must:
    (7) Pursuant to section 1513.13 of the Revised Code, identify 
[Identify] the grounds upon which review is being sought, the manner in 
which appellant is aggrieved or adversely affected by the action of the 
chief of the division of mineral resources management and the relief 
sought on appeal;
    1513-3-05: Filing and service of papers.
    (H) If papers filed with the commission cite case law as authority 
in support of argument, the filing must include a copy of the case law 
citedand must refer to the page number or paragraph on which the 
relevant language is found.
    1513-3-08: Temporary relief.
    (F) The decision of the chairman of the reclamation commission to 
grant or deny temporary relief may be appealed to the [full] 
commission, including the

[[Page 17804]]

chairman who decided temporary relief, within thirty days after the 
chairman's issuance of the decision in accordance with the provisions 
of section 1513.13 of the Revised Code. The [full] commission may 
confine its review to the record developed at the temporary relief 
hearing conducted by the chairman. The [full] commission shall affirm 
the decision of the chairman, unless it determines that the chairman's 
decision is arbitrary, capricious, or otherwise inconsistent with law.
    1513-3-09: Responsive pleadings.
    (B) Unless the commission orders otherwise, the party ordered to 
file a response pursuant to this rule shall have ten days from the 
issuance of the commission's order to make such filing.
    [(B] (C) Failure to respond when ordered may be treated as a 
failure to appear at hearing.
    1513-3-10: Discovery.
    (C) Discovery shall be conducted in accordance with the procedural 
provisions of the ``Ohio Rules of Civil Procedure.'' Discovery may 
include oral depositions, written interrogatories to parties, 
inspection of premises, requests for admission, and inspection of 
documents. [not privileged.]
    1513-3-11: Motions.
    (A) Except for oral motions which must be made in proceedings on 
the record, or where the commission otherwise directs, any motion made 
to the reclamation commission shall:
    (4) Be filed with the commission and served upon all parties to the 
proceeding at least ten [five] days in advance of the hearing, unless 
the movant demonstrates that unusual circumstances exist justifying an 
exception to this rule.
    1513-3-11: Motions.
    (C) Motions for reconsideration of any decision of the commission 
shall be made in writing within ten [fourteen] days after the issuance 
of the commission's decision. A motion for reconsideration shall state 
with particularity the grounds on which it is based. The filing of a 
motion for reconsideration does not extend the time for filing a notice 
of appeal in the appellate court.
    1513-3-11: Motions.
    (E) In compliance with the requirements of 1513-3-13(C)(2), motions 
for continuance of a hearing must be filed with the reclamation 
commission and served upon all parties to a proceeding at least 
fourteen days in advance of a hearing.
    [(E)] (F) Unless the commission orders otherwise, any party to a 
proceeding shall have ten days from service of the motion or until 
hearing, whichever is earlier, to file a response to a motion.
    [(F)] (G) Failure to make a timely motion or to file a statement in 
response to a motion may be construed as a waiver of objection.
    1513-3-12: Pre-hearing procedures.
    (A) The reclamation commission, or its hearing officer, may 
schedule and hold pre-hearing conferences for settlement or 
simplification of the issues in any appeal.
    (B) Whenever a pre-hearing conference is held, the commission, or 
its hearing officer, may issue an order which recites the matters 
discussed, the agreements reached, and the rulings made at the pre-
hearing conference.
    (C) The commission, or its hearing officer, may require the filing 
of a pre-hearing statement by the parties to an appeal.
    1513-3-13: Notice of hearings and continuance of hearings.
    (C) Continuance of scheduled hearings.
    (2) Motions for continuance of a hearing must be filed with the 
reclamation commission and served upon all parties to a proceeding at 
least fourteen [five] days in advance of a hearing.
    (3) Motions for continuance made less than fourteen [five] days 
before hearing or at hearing shall be granted only upon demonstration 
that an extraordinary situation exists which could not have been 
anticipated and which would justify the granting of a continuance.
    1513-3-14: Site views and location of hearings.
    (A) Site views.
    (2) Subject to any applicable safety requirements, the [The] 
commission may, upon reasonable notice and at reasonable times, inspect 
any site or other premises when the commission is of the opinion that 
such a viewing would have a beneficial value in any matter pending 
before the commission.
    (3) [Unless the right to a site view is statutorily prescribed, a] 
A quorum of commission members need not attend a site view.
    (4) All parties shall have prior notice of a site view and shall 
have the right to be present. Parties shall be informed of any safety 
requirements prior to the site view. The commission may limit the 
number of persons, which may accompany a party at a site view.
    1513-3-16: Conduct of evidentiary hearings.
    (E) Written testimony.
    (2) The use of a deposition in lieu of the [dependent's] deponent's 
oral testimony at hearing shall be allowed under the same provisions as 
are articulated in rule 32 of the ``Ohio Rules of Civil Procedure.'' A 
party desiring to use a deposition, or any designated part thereof, at 
hearing shall file the deposition with the commission and serve written 
notice to every other party at least five days prior to hearing.
    (F) Witnesses.
    (2) The commission may require each party in an appeal to identify 
prior to the commencement of a hearing each person who is or may be 
present and [in] his interest or who will or may be a witness for his 
cause in the appeal.
    (G) If the appellant fails to appear personally or by counsel or 
other authorized representative at a hearing scheduled after being duly 
notified of the hearing by the mailing of a notice of hearing to such 
party's last known address, and if good cause for such failure to 
appear [appeal] is not shown, the commission shall dismiss the appeal.
    (I) The reclamation commission may order the parties to a 
proceeding to submit post-hearing briefs or proposed findings of fact 
and conclusions of law at a time designated by the commission, on 
issues raised on the appeal or upon possible errors or omissions in the 
record or on any issues as the commission in its discretion shall 
determine. The commission may also order the parties to submit written 
closing arguments or proposed findings of fact and conclusions of law 
at the conclusion of hearing.
    1513-3-18: Reports and recommendations of the hearing officer.
    (F) Any party to a proceeding may have [seven] fourteen days from 
service of the objections to the report and recommendation of the 
hearing officer to file a response.
    1513-3-19: Decisions of the commission.
    (A) All decisions of the commission shall [incorporate] set forth:
    (1) Findings of fact;
    (2) Conclusions of law; and
    (3) An order granting or denying relief.
    1513-3-19: Decisions of the commission.
    (F) Remission of prepaid civil penalty assessments.
    (1) If a review of a civil penalty assessment results in an order 
reducing or eliminating a civil penalty, the reclamation commission 
shall remit the funds to the appellant in accordance with division 
[(F)] (E) of section 1513.02 of the Revised Code.

III. Public Comment Procedures

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

[[Page 17805]]

Electronic or Written Comments

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

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you may 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so. We will not consider anonymous comments.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on May 
4, 2009. If you are disabled and need reasonable accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If there is only limited interest in participating in a public 
hearing, we may hold a public meeting rather than a public hearing. If 
you wish to meet with us to discuss the submission, please request a 
meeting by contacting the person listed under FOR FURTHER INFORMATION 
CONTACT. All such meetings are open to the public and, if possible, we 
will post notices of meetings at the locations listed under ADDRESSES. 
We will make a written summary of each meeting a part of the 
administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowable by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments because each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory 
programs and program amendments submitted by the States must be based 
solely on a determination of whether the submittal is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR parts 730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that state programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve Federal regulations involving 
Indian lands.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

[[Page 17806]]

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based on 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State or local governmental agencies or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the state 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based on the analysis performed under 
various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 24, 2009.
Thomas D. Shope,
Appalachian Regional Director.
[FR Doc. E9-8885 Filed 4-16-09; 8:45 am]
BILLING CODE 4310-05-P