[Federal Register Volume 74, Number 73 (Friday, April 17, 2009)]
[Proposed Rules]
[Pages 17802-17806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8885]
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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.
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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:[email protected].
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:
[email protected].
FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (614) 416-
2238. e-mail: [email protected].
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]
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