[Federal Register Volume 79, Number 97 (Tuesday, May 20, 2014)]
[Proposed Rules]
[Pages 28854-28858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11661]



Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-255-FOR; Docket ID OSM-2013-012; 

Ohio Regulatory Program

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

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


SUMMARY: OSM announces receipt of a proposed amendment to the Ohio 
regulatory program under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). Ohio's proposed amendment is prompted by 
requirements within the Ohio statute that all agencies must review 
their administrative rules every five years. Consistent with this 
requirement, the Ohio Reclamation Commission, (the Commission), 
proposes an amendment to its procedural rules in order to ensure an 
orderly, efficient, and effective appeals process. By submittal of this 
proposed amendment, Ohio intends to revise its approved program 
pursuant to the additional flexibility afforded by the revised Federal 
regulations and SMCRA, as amended, to ensure Ohio's proposed provisions 
are consistent with and in accordance with SMCRA and no less effective 
than the corresponding Federal regulations. This document provides the 
times and locations that the Ohio program and proposed amendment are 
available for public inspection, the comment period during which you 
may submit written comments on this amendment, and the procedures that 
we will follow for the public hearing, if one is requested.

DATES: We will accept written comments on these amendments until 4:00 
p.m., Eastern Standard Time (EST) June 19, 2014. If requested, we will 
hold a public hearing on the amendment on June 16, 2014. We will accept 
requests to speak at a hearing until 4:00 p.m., EST on June 4, 2014.

ADDRESSES: You may submit comments, identified by SATS No. OH-255-FOR 
by any of the following methods:
     Mail/Hand Delivery: Mr. Ben Owens, Chief, Pittsburgh Field 
Division, OSM, 3 Parkway Center, 3rd Floor, Pittsburgh, Pennsylvania 
     Fax: (412) 937-2888.
     Federal eRulemaking Portal: The amendment has been 
assigned Docket ID OSM-2013-0012. If you would like to submit comments, 
go to http://www.regulations.gov and follow the instructions.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the Public Comment Procedures heading of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: For access to the docket to review copies of the Ohio 
regulations, this amendment, a listing of any scheduled public 
hearings, and all written comments received in response

[[Page 28855]]

to this document, you must go to the address listed below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the amendments by contacting OSM's Pittsburgh 
Field Division Office; or you can view the full text of the program 
amendment available for you to read at www.regulations.gov.
    In addition, you may review a copy of the amendment during regular 
business hours at the following locations:

Ben Owens, Chief, Pittsburgh Field Division, OSM, 4605 Morse Road, Room 
102, Columbus, OH 43230, Telephone: (614) 416-2238, Email: 
Lanny E. Erdos, Chief, Division of Mineral Resources Management, Ohio 
Department of Natural Resources, 2045 Morse Road, Building H-2, 
Columbus, OH 43229-6693, Telephone: (614) 265-6893, Email: 
Lanny.Erdos@dnr.state.oh.us, Fax: (614) 265-7999.

FOR FURTHER INFORMATION CONTACT: Ben Owens, Chief, Pittsburgh Field 
Division; Telephone: (614) 416-2238. Email: bowens@osmre.gov.

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

I. Background on the Ohio Program

    Section 503(a) of SMCRA permits a state to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of this SMCRA . . . ; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this SMCRA.'' See 30 U.S.C. 1253(a)(1) and (7). On the 
basis of these criteria, the Secretary of the Interior conditionally 
approved the Ohio program effective August 16, 1982. You can find 
background information on the Ohio program, including the Secretary's 
findings, the disposition of comments, and the conditions of approval 
of the Ohio program in the August 16, 1982, Federal Register (41 FR 
34688). You can also find later actions concerning Ohio's program and 
program amendments at 30 CFR 935.11, 935.12, 935.15, and 935.16.

II. Description and Submission of the Proposed Amendment

    The Commission is an adjudicatory board established pursuant to 
Ohio Revised Code (ORC) section 1513.05. The function of the Commission 
is to provide an administrative appeal to any person claiming to be 
aggrieved or adversely affected by a decision of the Ohio Department of 
Natural Resources, Chief of the Division of Mineral Resources 
Management (DMRM), relating to mining and reclamation issues. Following 
an adjudicatory hearing, the Commission affirms, vacates, or modifies 
the DMRM Chief's decision. The Commission is comprised of eight members 
appointed by the Governor of Ohio. Four Commission members constitute a 
quorum and seven members must be present for any appeal. Members 
represent a variety of interests relevant to mining and reclamation 
issues. The Commission adopts rules to govern its procedures. These 
rules are found at Ohio Administrative Code (OAC) sections 1513-3-01 
through 1513-3-22. As discussed above, all Ohio agencies must review 
applicable administrative rules every five years pursuant to ORC 
section 119.032. Therefore, the Commission conducted a review of its 
procedural rules in 2013. During this review, the Commission 
recommended several modifications to its rules, most of which are 
viewed as non-substantive. The Commission intended these modifications 
to ensure an orderly, efficient, and effective appeal process. The 
proposed changes are the subject of this proposed amendment and are 
discussed herein in the order as they are found in the proposed, 
modified OAC.

1513-3-01 Definitions

    Changes are proposed to clarify existing definitions and to provide 
additional definitions. Specifically, the definition of ``appellant'' 
is clarified to explicitly state actions of the Chief are the subject 
of appeal before the Commission. The definition of ``final order'' 
clarifies that the resolution of matters presented on appeal will be in 
writing and consistent with section 1513-3-19 of the OAC. The 
definition of ``full party'' is added. It is proposed that this 
definition will define ``full party'' to include the appellant, the 
appellee, and any intervenor participating in an appeal as defined by 
the OAC at section 1513-3-07, entitled ``Intervention.'' Additionally, 
the term, ``interested persons in an appeal pending before the 
Commission'' is added. The new term is proposed to be defined as the 
appellant, the appellee, any intervenors, and any other persons who 
have notified the Commission of an interest in a pending appeal and 
have requested to be notified of hearings in said pending appeal. The 
definition of ``intervenor'' is proposed to be modified to remove the 
word ``one'' and replace it with the term, ``any person.'' The 
definition of ``person'' is modified to encompass limited liability 
company. Within the definition of ``regular business hours'' it is 
proposed that the terms ``chairman'' and ``vice-chairman'' be replaced 
by ``chairperson'' and ``vice-chairperson,'' respectively. The 
remaining modifications are renumbering to facilitate the addition of 
new terms.

1513-3-02 Internal Regulations

    Section (B) Quorum, was modified to clarify the conditions for 
satisfying quorum. Additionally, the proposed rule clarifies the 
procedure in the event concurrence is not reached. The full text of the 
section is available for your review within the docket.
    Furthermore, the proposed rule clarifies that in the event a 
Commission member considered as part of the quorum misses any part of 
the proceeding, they must review the record prior to participating in 
the rendering of a decision. It is proposed that audio-electronic 
hearings before the Commission constitute the official record of the 
hearing. However, it is proposed that other methods of creating the 
official record are permitted upon the Commission's discretion, joint 
motion of the parties or by motion of a party and subsequent approval 
by the Commission. Additionally it is clarified that the issuance and 
service of subpoenas must comply with the Ohio Rules of Civil 
Procedure, and as applicable section 119.094 of the ORC, including the 
fee paid to witnesses outside the county in which a hearing shall be 

1513-3-03 Appearance and Practice Before the Commission

    The proposed rule clarifies that any party may appear on their own 
behalf or may be represented by an attorney at law admitted to practice 
according to Ohio law. This includes the admittance of attorneys pro 
hac vice.

1513-3-04 Appeals to the Reclamation Commission

    While the majority of the proposed changes to this section are 
clerical and non-substantive, the proposed rule clarifies that email 
addresses, if available, should be included in the notice of appeal. 
Additionally, as proposed, appellants shall comply with

[[Page 28856]]

the requirements of section 1513.02 of the ORC, pertaining to the power 
and duties of the Chief of DMRM, and shall include and forward the 
amount of the penalty for placement in a penalty fund. The proposed 
rule also adds a section of what may be included in the appeal. 
Appellants may, but are not required to, identify the area to which the 
notice, order or decision relates; state whether or not the Commission 
is requested to view the site; and state whether or not the appellant 
waives the right to have the hearing within the time frames established 
in section 1513.13(B) of the ORC.

1513-3-05 Filing and Service of Papers

    This section of the proposed rule clarifies that the filing of a 
notice of appeal must conform to section 1513.13 of the ORC, Appeal to 
the Commission. The proposed rule alters the definition of when a 
notice of appeal is deemed filed. It is proposed that a notice of 
appeal will be deemed filed when received or if the notice of appeal is 
sent by certified mail, registered mail, or express mail, it shall be 
deemed filed on the date of the postmark date placed upon the sender's 
receipt by the postal service. However, documents requesting temporary 
relief are proposed to only be deemed filed when received by the 
Commission. Additionally, it is proposed that all filings other than a 
notice of appeal or a request for temporary relief, that are not sent 
to the Commission by certified mail, registered mail, or express mail 
shall be deemed filed with the Commission on the day on which the 
filings are received and those that are sent by such means, shall be 
deemed filed on the postmark date placed upon the sender's receipt by 
the postal service. It is further proposed that following initiation of 
an appeal, the Commission may, through order, establish a filing and 
service protocol, which may include the electronic transmission of 

1513-3-06 Computation and Extension of Time

    The majority of the proposed changes to this section are non-
substantive and consist of renumbering for clarity. However, it is 
proposed that section (C)(1), be altered to definitely read that the 
Commission may not lengthen or reduce the time period allowed for any 
response or filing a request for temporary relief.

1513-3-07 Intervention

    The proposed rule would require a petition for leave to intervene 
to be filed at least ten days prior to the beginning of an evidentiary 
hearing on the merits of an appeal, unless waived by the Commission for 
extraordinary cause. Additionally, it is proposed that a provision be 
added to allow the filing of amicus briefs and oral argument at hearing 
by amicus curiae upon leave by, and at the discretion of, the 

1513-3-08 Temporary Relief

    Proposed changes to this section are non-substantive and primarily 
propose language to make references gender neutral.

1513-3-10 Discovery

    The proposed rule alters the current discovery rules by clarifying 
parties to an appeal may obtain discovery in accordance with the 
provisions of rules 26 through 36 of the Ohio Rules of Civil Procedure. 
Additionally, the rule explains that all parties, including 
intervenors, are subject to discovery and discovery from non-parties 
must be done through subpoena. It is proposed that if a party fails to 
obey an order to compel or permit discovery issued by the Commission, 
the Commission may make such orders in regard to the failure as it 
deems just.

1513-3-11 Motions

    It is proposed that section (B) be removed. Currently, this section 
allows a party to make a written motion requesting that a hearing be 
conducted before the full Commission, rather than before a hearing 
officer for the Commission. However, this election is preserved and 
will be enumerated in section 1513-3-18, Reports and recommendations of 
the hearing officer. It is also proposed that objections to 
jurisdiction are non-waivable and may be raised at any point in an 
appeal, consistent with the Ohio Rules of Civil Procedure.

1513-3-12 Pre-Hearing Procedures

    The proposed rule would allow the Commission or its hearing 
officer, at its own initiative or at the request of any party, to 
schedule and hold pre-hearing conferences regarding issues on appeal.

1513-3-14 Site Views and Location of Hearings

    The proposed rule specifies the locations of Commission hearings. 
It also establishes the circumstances in which the Commission will 
conduct site views of mining operations, reclamation operations, or 
other relevant features. As proposed, the rule also explicitly states 
that the Commission shall control and direct the manner of conducting a 
site view. Specifically, it is proposed that where a site view is 
conducted on property subject to a mining and reclamation permit, 
parties shall be informed prior to the site view of any necessary 
personal protective equipment, including hard hat, safety glasses, 
hearing protection, safety-toed shoes or boots and additional equipment 
as may be required on mine property as determined by the mine operator. 
Additionally, the Commission reserves the right to limit the number of 
persons who participate in the site view. Additionally, it is proposed 
to alter the rule so that a hearing related to a cessation of mining or 
a motion for temporary relief is held in proximity to the subject area 
of the hearing for the convenience of the Commission and the parties. 
All other proceedings will continue to be held in Columbus, Ohio or at 
any convenient public location selected by the Commission.

1513-3-15 Consolidation of Proceedings

    It is proposed that the Commission be given the right to administer 
consolidated appeals in the manner it deems most appropriate.

1513-3-16 Conduct of Evidentiary Hearings

    The proposed rule applies to any person participating in an appeal 
before the Commission and definitively states that the Commission shall 
determine the conduct of the hearing and the order of the presentation 
of evidence. Additionally, it further clarifies that the Commission is 
not bound by the formal rules of evidence as promulgated by the Ohio 
Supreme Court. The proposed rule also establishes a procedure for in 
camera inspection of documents claimed to contain proprietary business 
information or trade secrets. Additionally, the proposed rule 
specifically details the number of copies of proposed exhibits a party 
must make available. In regard to written testimony, it is proposed 
that affidavits may be admitted only if the evidence is otherwise 
admissible and all full parties agree that affidavits may be used in 
lieu of oral testimony. This proposed alteration is limiting as it adds 
the adjective ``full,'' thus excluding certain parties. It is also 
proposed that parties wishing to use affidavits in lieu of oral 
testimony serve all full parties with a copy of the affidavit at least 
15 days prior to a hearing. It is clarified that in the event a 
declarant is unavailable, testimony may be offered in compliance with 
Rule 804 of the Ohio Rules of Evidence. As proposed, objections to 
deposition testimony shall be resolved in accordance with Rule 32 of 
the Ohio

[[Page 28857]]

Rules of Civil Procedure. Further, it is proposed that in instances 
when a party is attempting to use written testimony, any full party 
shall present the Commission a schedule of objections to the written 
testimony prior to the commencement of the hearing. This is a change to 
the current rule that allows objection at the hearing following receipt 
of the testimony into evidence. In regard to the presentation of 
witnesses, it is proposed that the Commission may require that a 
witness be called only once during a hearing and that the parties 
conduct all examinations at the time when the witness is called to 
testify. It is proposed that an Ohio notary be given authority to 
administer oaths and affirmations to witnesses. Further, it is proposed 
that the Commission be given authority to require the parties to submit 
written closing arguments, post-hearing briefs or proposed findings of 
fact and conclusions of law.

1513-3-17 Voluntary Dismissal and Settlement

    It is proposed that the adjective ``full'' be added to section (B), 
relative to agreement to settle. Therefore, this is limiting as not all 
parties may be required to reach an agreement to settle. It is also 
proposed that if an appeal is settled during the course of a hearing, 
the parties shall enter into the record a statement acknowledging that 
they have reached an agreement that all issues have been resolved, and 
that a withdrawal of the appeal will be filed.

1513-3-18 Reports and Recommendations of the Hearing Officer

    It is proposed that section 1513-3-11(B) be replaced here. This 
section allows a party to make a written motion requesting that a 
hearing be conducted before the full Commission, rather than before a 
hearing officer for the Commission. Additionally, it is proposed that 
in the event a decision before a hearing officer must be rendered 
within a specified time period, the appeal will be heard by the 
Commission rather than by a hearing officer, unless there has been a 
waiver of the right to an expedited hearing.

1513-3-19 Decisions of the Commission

    This proposed rule clarifies the procedures the Commission will 
follow in issuing its decisions. Additionally, as proposed, the rule 
allows the remission, within thirty days after issuing a final 
decision, of pre-paid civil penalties, where penalties are under 
appeal. The proposed rule also provides more detailed information 
regarding the procedures that will be followed if errors are found in 
Commission decisions. Specifically, it is proposed that during the time 
period after a final decision has been issued by the Commission, 
clerical mistakes in the final decision and errors therein from 
oversight or omission may be corrected before an appeal of the 
Commission's final decision is filed. Thereafter, while an appeal is 
pending before an appellant court, a final decision may be so corrected 
with leave of the court. As proposed, the correction of a clerical 
mistake or error in a final decision does not extend the time for 
filing a notice of appeal in the appellate court.

1513-3-20 Costs

    It is proposed that this section be rescinded. As it currently 
exists, this section allowed the Commission to assess costs against a 
party to an appeal. The Commission does not assess such costs, and the 
rule has not been used by the Commission. Moreover, there are no filing 
fees associated with Commission appeals.

1513-3-21 Award of Costs and Expenses

    As proposed, this rule clarifies the previous version of this rule 
approved by OSM in 2004. The intent is to make it clearer that the 
Commission is only authorized to directly hear petitions for costs, 
including attorneys' fees, and expenses where petitions are filed by 
the DMRM and allege bad faith or harassment by another party. As 
proposed, such petitions must conform to the ORC. Petitions by the DMRM 
must include an affidavit detailing all costs and expenses, receipts, 
and when attorneys' fees are requested, evidence that the hours 
expended and the fees requested are reasonable for the appeal and for 
the locality. Decisions relevant to award of costs and expenses are 
appealable pursuant to the OAC and ORC.

1513-3-22 Appeals from Commission Decisions

    As proposed, this rule clarifies that parties to actions involving 
coal mining and reclamation raised under section 1513 of the ORC may 
seek review of a Commission decision in the court of appeals for the 
county, in which the activity addressed by the decision of the 
Commission occurred, is occurring or will occur. Moreover, as proposed, 
this rule clarifies that parties to actions involving industrial 
minerals mining and reclamation and brought under section 1514 of the 
ORC may seek review of a Commission decision in the court of common 
pleas in the county where the operation addressed by the decision of 
the Commission is located or in the Franklin County Court of Common 
pleas. Additionally, the proposed rules provides the Commission with 
the authority to control the transcription and transmission of the 
record to the appropriate appellate court.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), OSM is seeking your 
comments on whether Ohio's proposed amendment satisfies the applicable 
program approval criteria of 30 CFR 732.15. If OSM approves the 
amendment, it will become part of Ohio's program.

Electronic or Written Comments

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

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information may be made publicly available at any time. While you can 
ask OSM in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., EST, on June 
4, 2014. If you are disabled and need reasonable accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. OSM will arrange the location and time

[[Page 28858]]

of the hearing with those persons requesting the hearing. If no one 
requests an opportunity to speak, OSM will not hold a hearing.
    To assist the transcriber and ensure an accurate record, OSM 
requests, if possible, that each person who speaks at the public 
hearing provide us with a written copy of his or her comments. The 
public hearing will continue on the specified date until everyone 
scheduled to speak has been given an opportunity to be heard. If you 
are in the audience and have not been scheduled to speak and wish to do 
so, you will be allowed to speak after those who have been scheduled. 
OSM will end the hearing after everyone scheduled to speak and others 
present in the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
OSM to discuss the amendment, please request a meeting by contacting 
the person listed under FOR FURTHER INFORMATION CONTACT. All such 
meetings are open to the public; if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

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

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSM for review, 
regulations at 30 CFR 732.17(h) require OSM to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. OSM 
concludes review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, OSM will 
also make the determinations and certifications required by the various 
laws and executive orders governing the rulemaking process and include 
them in the final rule.

List of Subjects in 30 CFR Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 10, 2014.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2014-11661 Filed 5-19-14; 8:45 am]