Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-244-FOR]

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 (Ohio program) under the Surface Mining Control and Reclamation

Act of 1977 (SMCRA). Ohio is proposing revisions to section 1513-3-21

of the Ohio Administrative Code (OAC) as it relates to awards of costs

and expenses, including attorney's fees, arising in connection with

appeals heard by the Reclamation Commission. The amendment is intended

to revise the Ohio program to be consistent with its statute at Ohio

Revised Code (ORC) Section 1513.13(E) as well as the corresponding

Federal regulations.

EFFECTIVE DATE: April 13, 1999.

FOR FURTHER INFORMATION CONTACT: George Rieger, Field Branch Chief,

Appalachian Regional Coordinating Center, Office of Surface Mining

Reclamation and Enforcement, 3 Parkway Center, Pittsburgh PA 15220.

Telephone: (412) 937-2153. Internet: [email protected].

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. You can find background information on the

Ohio program, including the Secretary's findings, the disposition of

comments, and the conditions of approval in the August 10, 1982,

Federal Register (47 FR 34688). You can find later actions on

conditions of approval and program amendments at 30 CFR 935.11, 935.15,

and 935.16.

II. Submission of the Proposed Amendment

By letter dated January 21, 1999 (Administrative Record No. OH-

2177-00) Ohio submitted proposed amendments to its program concerning

award of costs and fees in connection with appeals heard by the

Reclamation Commission. We announced receipt of the proposed amendment

in the February 8, 1999, Federal Register (64 FR 6005), invited public

comment, and provided an opportunity for a public hearing on the

adequacy of the proposed amendment. The public comment period closed on

March 10, 1999.

III. Director's Findings

Following, according to SMCRA and the Federal regulations at 30 CFR

732.15 and 732.17, are our findings concerning the proposed amendment.

Any revisions that we do not specifically discuss below concern

nonsubstantive wording changes or revised cross-references and

paragraph notations to reflect organizational changes that result from

this amendment.

OAC 1513-3-21 Award of Costs and Expenses

(a) Paragraphs (A) and (B) are amended by changing the reference

from the ``board of review'' to the ``Reclamation Commission'', by

changing the scope of the paragraph from proceedings ``under Chapter

1513 of the Revised Code'' to ``proceedings before the Reclamation

Commission,'' and specifically requiring that a petition for costs and

expenses including attorney's fees be submitted in accordance with

Section 1513.13(E) and (E)(1)(c) of the ORC.

(b) New paragraph (C) is added to specify that a decision by the

Chief of the Division of Mines and Reclamation granting or denying in

whole or in part a request for an award of costs and expenses including

attorney's fees made under Section 1513.13(E)(1)(a) or 1513.13(E)(1)(b)

of the ORC shall be appealable to the commission under Section

1513.13(A) of the ORC.

(c) Existing Paragraph (C) pertaining to the contents of a petition

is re-numbered as (D) and further amended by including the specific

references to the ORC included in (a) and (b) above.

(d) Existing Paragraphs (D), (E) and (F) are re-numbered as (E),

(F), and (G). New paragraphs (F) and (G) are further amended by

changing the scope of the paragraphs from proceedings ``under Chapter

1513 of the Revised Code'' to proceedings ``before the Reclamation

Commission.''

The changes described above revise the OAC to correspond with

provisions previously approved in the ORC at Section 1513.13 entitled,

Appeal of Violation, Order or Decision to Reclamation Commission. The

Director finds that the proposed revisions to the OAC included in this

amendment render these provisions consistent with ORC Section

1513.13(E) pertaining to costs and expenses, including attorneys fees,

arising from proceedings before the Chief of the Ohio Division of Mines

and Reclamation and before the Reclamation Commission. In addition, the

revisions do not render OAC Section 1513-3-21 inconsistent with section

525(e) of SMCRA or with the Federal regulations at 43 CFR 4.1294.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

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for a public hearing on the proposed amendment. Because no one

requested an opportunity to speak at a public hearing, no hearing was

held. No comments were received.

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

the Army, Army Corps of Engineers, concurred without comment

(Administrative Record No. OH-2177-02). No other comments were

received.

Environmental Protection Agency (EPA)

Pursuant 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 comments on 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 January 21, 1999.

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

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. 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 counterpart Federal regulations.

Unfunded Mandates

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501

et seq.), this rule will not produce a Federal mandate of $100 million

or greater in any year, i.e., it is not a ``significant regulatory

action'' under the Unfunded Mandates Reform Act.

List of Subjects in 30 CFR 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 31, 1999.

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 Date of final publication Citation/description

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January 21, 1999................... April 13, 1999.......................... OAC 1513-3-21.

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[FR Doc. 99-9198 Filed 4-12-99; 8:45 am]

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