Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-242-FOR, #75]

Ohio Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Ohio regulatory

program (hereinafter referred to as the ``Ohio program'') under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA). Ohio

proposed revisions to its statutes pertaining to attorney fees. The

amendment is intended to revise the Ohio program to be consistent with

the corresponding Federal regulations.

EFFECTIVE DATE: February 24, 1998.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Field Branch Chief, Appalachian Regional Coordinating

Center, OSM, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: (412)

937-2153.

[[Page 9138]]

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Ohio Program

On August 16, 1982, the Secretary of the Interior conditionally

approved the Ohio program. Background information on the Ohio program,

including the Secretary's findings, the disposition of comments, and

the conditions of approval can be found in the August 10, 1982, Federal

Register (47 FR 34668). Subsequent actions concerning conditions of

approval and program amendments can be found at 30 CFR 935.11, 935.12,

935.15, and 935.16.

II. Submission of the Proposed Amendment

By letter dated June 24, 1997, (Administrative Record No. OH-2173-

00) Ohio submitted a proposed amendment to its program pursuant to

SMCRA in response to a required amendment at 30 CFR 935.16(a)(1) and

(2). Ohio proposes to revise the Ohio Revised Code (ORC) at section

1513.13 which pertains to attorney fees.

OSM announced receipt of the proposed amendment in the July 7,

1997, Federal Register (62 FR 36248), and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on August 6, 1997.

During its review of the proposed amendment, OSM identified

concerns relating to the provisions of 1513.13(E)(1) and (2). OSM

notified Ohio of the concerns by letter dated August 4, 1997

(Administrative Record No. OH-2173-05). Ohio responded by letter dated

August 19, 1997 (Administrative Record No. OH-2173-07), and revised the

language at 1513.13(E)(2) to clarify that the statute applies to

judicial review of any order or decision issued in any administrative

proceeding under Chapter 1513.

Ohio submitted a second letter date October 14, 1977

(Administrative Record No. OH-2173-08) and revised the language at

1513.13(E)(1) to clarify that the specified fee provisions apply to

both enforcement and permitting decisions. It also revised section

1513.13(E)(2), in the manner described below, in the Director's

Findings. Because the revisions merely clarified the original proposed

language and did not constitute major changes to the Ohio program, OSM

did not reopen the comment period.

OSM did reopen the comment period on December 2, 1997 (62 FR 63684)

to summarize the provisions of the proposed revision to 1513.13(E)(2)

which were inadvertently omitted from the first notice, and described

in the Director's Findings below. The comment period closed on December

17, 1997.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

ORC 1513.13--Appeal of Violation, Order, or Decision to Reclamation

Commission

At paragraph (E)(1), Ohio is requiring that whenever an enforcement

order or permit is issued pursuant to Chapter 1513 and is appealed,

certain costs and attorney fees may be awarded. At paragraph (E)(1)(a),

Ohio is proposing that a party, other than the permittee or the

Division of Mines and Reclamation, may file a petition for an award of

costs and expenses. The party may be awarded those costs and expenses,

including attorney's fees that were necessary and reasonably incurred

by the petitioning party. At paragraph (E)(1)(b), Ohio is clarifying

that a permittee may file, with the Chief, a request for an award to

the permittee of the costs and expenses, including attorney's fees,

reasonably incurred by the permittee in connection with an appeal

initiated under this section. The Chief may assess those costs and

expenses against a party who initiated, or participated in, the appeal

if the permittee demonstrates that the party initiated or participated

in the appeal in bad faith and for the purpose of harassing or

embarrassing the permittee. At paragraph (E)(1)(c), Ohio is clarifying

that attorney's fees are included in the costs and expenses specified.

A party who participated in an appeal in bad faith may have costs and

expenses assessed against him or her. At paragraph (E)(2), Ohio is

providing that if a final order relating to Chapter 1513 is issued by

the Reclamation Commission pursuant to section 1513.13(B) or by a Court

of Common Pleas pursuant to section 1513.15(B) or by the Chief pursuant

to section 1513.39 and becomes the subject of judicial review, certain

costs and expenses, including attorney fees, reasonably incurred by a

party in connection with their participation in the judicial

proceedings may be awarded.

The Director finds that the proposed revisions at 1513.13(E)(2) are

substantively identical to section 525(e) of SMCRA, 30 U.S.C. section

1275(e), which provides for the award of a sum equal to the aggregate

amount of all costs and expenses, including attorney fees, to have been

reasonably incurred by a participant in such administrative or judicial

proceedings. The Director finds that the revisions proposed at

1513.13(E)(1), (E)(1)(a), (E)(1)(b), and (E)(1)(c) are substantively

identical to section 525(e) of SMCRA, 43 CFR 4.1294(b), 43 CFR

4.1294(d), and 43 CFR 4.1294(e), respectively. The proposed revisions

also satisfy the conditions of the required amendments at 30 CFR

935.16(a)(1) and (2). Ohio's provisions clarify that fee provisions

apply to both enforcement and permitting decisions and that costs may

be assessed against any participant in bad faith appeals. Therefore,

the Director is removing the required amendments.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. One public comment was

received in support of the proposed revisions. Four other commentors

expressed concern that the proposed amendment appears to adversely

affect or eliminate altogether the ability of citizens to recover the

costs and fees they incur in appealing a decision which involves

industrial minerals mining permits. The Director notes that to the

extent that these comments pertain to non-coal mineral regulation, they

are not germane to this rulemaking, which only concerns the effect

which the proposed revisions have on the award of attorney fees as a

result of administrative and judicial appeals of decisions related to

coal mining. OSM's approval of these revisions is neither an explicit

nor an implicit approval of the curtailment of attorney fee awards in

industrial mineral proceedings, since OSM has no jurisdiction over such

proceedings. (The converse is also true. Were OSM to disapprove these

revisions, that disapproval would only affect coal mining proceedings.

The applicability of the revisions to industrial minerals proceedings

would not be affected.)

Two commenters also argued that the proposed change to ORC

1513.13(E)(1)

[[Page 9139]]

is inconsistent with the underlying objective of 30 CFR 732.15(b)(10),

which is to require state mining laws to have provisions ``for public

participation in the development, revision and enforcement of State

regulations and the State program, consistent with public participation

requirements of the Act and this chapter.'' As noted in the finding

above, the Director has determined that Ohio's proposed revisions are

consistent with counterpart provisions in SMCRA and the Federal

regulations. 30 CFR 732.15(b)(10) requires that states provide for

public participation in all aspects of the regulation of surface coal

mining operations only. The commenters fail to articulate how these

revisions curtail public participation with respect to the regulation

of surface coal mining operations.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Ohio program. The Department of

Labor, Mine Safety and Health Administration, and the Department of the

Army, Army Corps of Engineers, both concurred without comment.

Environmental Protection Agency (EPA)

Purusant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions Ohio proposed to make in its amendment

pertains to air or water quality standards. Nevertheless, OSM requested

EPA's concurrence with the proposed amendment. EPA did not respond to

OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Ohio on June 24, 1997, and revised on August

19, 1997, and October 14, 1997. The Director is also removing the

required amendments at 30 CFR 935.16(a) (1) and (2) because they have

been satisfied by revisions contained in this submission.

The Federal regulations at 30 CFR part 935, codifying decisions

concerning the Ohio program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed 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 since 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 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.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

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.).

Regulatory Flexibility Act

The Department of the Interior has determined 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 which is the subject of this rule is based upon

corresponding 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. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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 corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: February 9, 1998.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 935--OHIO

1. The authority citation for part 935 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 935.15 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 935.15 Approval of Ohio regulatory program amendments.

* * * * *

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Original amendment submission Date of final

date publication Citation/description

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* * * * *

June 24, 1997................. [Insert date of ORC 1513.13(E).

publication in

the Federal

Register].

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Sec. 935.16 [Amended]

3. Section 935.16 is amended by removing the text, and reserving

the section and section heading.

[FR Doc. 98-4618 Filed 2-23-98; 8:45 am]

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