[Federal Register Volume 63, Number 36 (Tuesday, February 24, 1998)]
[Rules and Regulations]
[Pages 9137-9139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4618]
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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]
BILLING CODE 4310-05-M
