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| Rule |
Rule 1513-3-01 | Definitions.
Effective:
November 1, 2018
(A) "Adjudication hearing"
means a trial-type proceeding at which the parties may introduce evidence
relevant to the resolution of a disputed issue of fact. (B) "Amicus curiae" means a
"friend of the court." The participation of a non-party amicus curiae
is addressed under paragraph (F) of rule 1513-3-07 of the Administrative
Code. (C) "Appellant" means any person filing an appeal
with the reclamation commission for the review of an action of the division
chief. (D) "Appellee" means the division of mineral
resources management. (E) "Burden of persuasion" means proof by a
preponderance of the evidence. (F) "Chief" means the chief of the division of
mineral resources management. (G) "Commission" means the reclamation
commission, as established by section 1513.05 of the Revised Code. (H) "Division" means the division of mineral
resources management. (I) "Discovery" means the ascertainment of
information pursuant to rule 1513-3-10 of the Administrative Code. (J) "Ex parte communication"
means a communication between the commission and one party to an appeal,
without the inclusion of other parties to the appeal. Ex parte contacts and
communications are addressed, and prohibited, under paragraph (G) of rule
1513-3-03 of the Administrative Code. (K) "Final order" means a written decision of the
commission, which resolves the matters presented in an appeal, which is issued
in accordance with rule 1513-3-19 of the Administrative Code, and which is
appealable to the courts pursuant to section 1513.14 or section 1514.09 of the
Revised Code. (L) "Full party" means the appellant, the
appellee and any intervenor participating in an appeal pursuant to paragraph
(C) of rule 1513-3-07 of the Administrative Code. (M) "Hearing officer" means a person designated
by the reclamation commission pursuant to section 1513.05 of the Revised Code
to conduct hearings or perform other duties as directed by the
commission. (N) "In camera" means in
private rather than in open hearing. In camera procedures are addressed under
paragraph (C) of rule 1513-3-16 of the Administrative Code. (O) "Interested persons in an appeal pending before
the commission" are 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. (P) "Intervenor" means any person granted the
right to intervene pursuant to rule 1513-3-07 of the Administrative
Code. (Q) "Person" means any individual, partnership,
limited liability company, corporation, association, or other legal entity, or
any political subdivision, instrumentality, or agency of this state or the
United States. (R) "Proffer" means to offer or tender testimony
or documents or other tangible objects into evidence. (S) "Pro hac vice" means "for one particular
case," and addresses the ability of an out-of-state attorney to appear in
an appeal before the commission pursuant to paragraphs (A) and (C) of rule
1513-3-03 of the Administrative Code. (T) "Regular business hours" for the reclamation
commission means ten a.m. to six p.m., Monday through Friday, except for state
holidays as defined in section 124.19 of the Revised Code 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 chairperson and vice-chairperson of
the commission will be prominently posted at the commission
offices. (U) "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. (V) "Subpoena ad testificandum" means a subpoena
for the appearance and testimony of a witness, and is addressed under paragraph
(I) of rule 1513-3-02 of the Administrative Code. (W) "Subpoena duces tecum" means a subpoena
requiring a witness to produce documents or other items at hearing and is
addressed under paragraph (I) of rule 1513-3-02 of the Admininstrative Code.
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Rule 1513-3-02 | Internal regulations.
Effective:
November 1, 2018
(A) This chapter governs the practices
and procedures before the reclamation commission. (B) Quorum. (1) Four members
constitute a quorum, and no action of the commission shall be valid unless it
has the concurrence of at least four members. (2) An inability to reach
a concurrence of four members shall be deemed to have occurred when a majority
of the participating members conclude that a concurrence of four members cannot
be reached. (3) In rendering a
decision, if the members of the commission who attended a hearing fail to reach
a concurrence of at least four commission members, the existing record of
proceedings shall be submitted to all members who did not attend any portion of
the hearing, which members shall inform the commission of their decision to
participate in the appeal. If any such member decides to participate, that
member shall review the record of the proceedings before the commission, and
then shall participate in the rendering of a decision in the matter under
consideration. (4) In the event that a
concurrence of four members cannot be reached, a decision shall be issued
reflecting that four members of the commission could not reach agreement
regarding whether the chief's action under appeal was, or was not,
arbitrary, capricious or otherwise inconsistent with law. In such case, the
commission's decision shall include the necessary order, affirming the
chief's action under appeal pursuant to division (B) of section 1513.13 of
the Revised Code. (C) If a commission member has attended a
hearing, but was absent from a portion of that hearing, the absent commission
member shall review that portion of the record from which he was absent before
participating in the rendering of a decision in the matter under
consideration. (D) Pursuant to section 1513.05 of the
Revised Code, the reclamation commission shall elect a secretary, who shall
perform such duties as the commission prescribes, including: (1) Promptly recording
minutes of all meetings of the commission which shall be open to public
inspection during regular business hours at the office of the
commission. (2) Serving as custodian
of the records and papers of the commission and preserving copies of briefs and
other filings. (3) Assembling,
transmitting and certifying the complete record of proceedings before the
commission out of which appeals made pursuant to section 1513.14 or section
1514.09 of the Revised Code arise. (4) Providing notice of
all public meetings of the commission in accordance with the
following: (a) Any person may ascertain the time and place of
regularly-scheduled public meetings by contacting the office of commission
during regular business hours; (b) Upon request, any person may obtain advance notice of all
regularly-scheduled public meetings by supplying the office of the commission
with stamped, self-addressed envelopes. The office will mail to such person a
notice of the time and place of meetings at least four calendar days before the
scheduled meeting; (c) The time and location for commission meetings shall be
announced in the "Hannah Report" published by Rotunda,
Inc. (5) Establishing and
maintaining records for the funds held in a penalty fund mandated by division
(E)(3) of section 1513.02 of the Revised Code. (6) Remitting, in
appropriate amounts, funds from a penalty fund as mandated in division (E)(3)
of section 1513.02 of the Revised Code. (7) The secretary of the
commission shall have the authority to delegate to any staff member of the
commission, those duties assigned to the secretary pursuant to this
rule. (E) Documents and files of the
commission, or parts thereof, shall not be removed from the custody of the
commission without the consent of the commission. (F) The documents and files of the
commission shall be available for inspection and examination at the office of
the commission during regular business hours, as defined by paragraph (T) of
rule 1513-3-01 of the Administrative Code. (G) All hearings before the commission
shall be recorded by audio-electronic devices, which recording shall constitute
the official record of the hearing. However, the commission may allow other
means for the creation of the official record of the hearing at the
commission's discretion or upon motion of a party, or joint motion of
parties, and if such motion is granted, the requesting party or parties shall
bear the expense of the creation of such record, which record shall then be
filed with the commission. (H) Any transcript of a proceeding before
the commission, if filed with the commission 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. (2) The party requesting
a subpoena shall comply with all requirements of rule 45 of the Ohio Rules of
Civil Procedure. (3) Except for good cause shown, a
request for issuance of a subpoena shall be made at least ten days before a
scheduled hearing. (4) Subpoenas shall be served in
compliance with rule 45 of the Ohio Rules of Civil Procedure. (5) A subpoena ordering the appearance of
an employee of the Columbus office of the division of mineral resources
management may be personally served by the commission. (6) The commission may issue a subpoena
signed by the commission, but otherwise in blank, to a party or counsel
requesting a subpoena, which party or counsel shall complete the subpoena form
before service in compliance with rule 45 of the Ohio Rules of Civil
Procedure. (7) If the witness being
subpoenaed resides outside the county in which a hearing will be held, the fees
for one day's attendance and mileage shall be tendered to the witness
without demand. The attendance fee and mileage reimbursement shall be as set
forth in section 119.094 of the Revised Code. The responsibility to tender such
fees to the witness being subpoenaed shall be borne by the party requesting the
issuance of the subpoena. (8) The cost of serving a subpoena shall
be borne by the party requesting the issuance of the subpoena. (J) Notice of public hearing to adopt,
amend, or rescind rules. (1) Public notice of
hearings on the adoption, amendment, or rescission of rules, to be conducted by
the commission, shall be advertised one time in five newspapers published in
different counties and of general circulation in the state. (2) The public notice
shall be given at least thirty days, but not more than fifty days, prior to the
hearing. (3) The notice
shall: (a) State the commission's intention to consider adopting,
amending, or rescinding rules; (b) Include a synopsis or full text of the proposed rules,
amendments, or rules to be rescinded, or a general statement of the subject
matter to which such proposed rules relate; (c) State the reason or purpose for adopting, amending, or
rescinding the rules; (d) Enumerate the date, time and place of the hearing on the
proposed actions, which shall not be earlier than thirty days after the
proposed rules, amendments, or rescissions are filed; and (e) State the place from which copies of the proposed rules,
amendments, or rules to be rescinded may be obtained. (4) The office of the
commission shall provide the public notice to anyone who requests it and pays a
reasonable fee, not to exceed the cost of copying and mailing. (K) In the event that the rules of the
commission are amended, all proceedings in actions brought after the amendment
and also all further proceedings in actions then pending shall be governed by
the amended rules. (L) The commission may appoint hearing
officers to conduct hearings on issues of fact and law arising in an appeal or
to perform any other duties as directed by the commission or its secretary. The
hearing officer shall have the same powers and authority in conducting hearings
as granted to the reclamation commission.
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Rule 1513-3-03 | Appearance and practice before the commission.
Effective:
October 11, 2013
(A) 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. (B) Any attorney at law admitted to practice before the courts of the state of Ohio may practice before the commission. Practice shall include commencing, conducting or defending any matter before the commission. Attorneys admitted to practice in Ohio shall provide their attorney registration number on filings made with the commission. (C) Attorneys not admitted to practice before the courts of the state of Ohio may petition the commission for admission pro hac vice. Attorneys appearing pro hac vice shall comply with rule XII of the Rules for the Government of the Bar of Ohio, and shall present to the commission a copy of a certificate of pro hac vice registration with the Ohio supreme court. (D) All persons appearing before the commission shall conform to the standards of ethical conduct required in appearances in the courts of the state of Ohio. The commission shall have the authority, for good cause stated in the record, to bar from participation in a particular proceeding any person, including an attorney, who shall refuse to comply with the commission's directions, or who engages in disorderly conduct, dilatory tactics, or contemptuous language in the course of such proceedings. (E) The commission may, for cause, deny or suspend the right of any person to appear before the commission. (F) Notice of any change of attorney of record shall be given promptly to the commission and to all other parties. (G) Ex parte contacts or communications concerning substantive issues of a pending case between parties or representatives of the parties appearing before the commission and the commission is prohibited.
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Rule 1513-3-04 | Appeals to the reclamation commission.
Effective:
November 1, 2018
(A) Any person exercising their right to
appeal to the reclamation commission under section 1513.13 of the Revised Code
shall file such appeal to the commission pursuant to this rule. (B) A notice of appeal
shall: (1) Be in writing and may
be in the form of a letter or a legal pleading; (2) Identify the name,
address, telephone number and email address, if available, of the
appellant; (3) Identify the name,
address, telephone number and email address, if available, of appellant's
counsel, if appellant is represented by counsel; (4) Identify the notice,
order or decision of the chief of the division of mineral resources management
to be reviewed, and include a copy of the written notice, order or decision to
be reviewed; (5) Pursuant to section 1513.13 of the
Revised Code, 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; (6) Be signed by the appellant or by an
attorney admitted to practice before the supreme court of Ohio, or an attorney
admitted to practice by the commission pursuant to a motion to appear pro hac
vice, and (7) Where review of the
assessment of a civil penalty is sought, the appellant shall comply with the
requirements of section 1513.02 of the Revised Code and shall include and
forward to the commission the amount of the penalty for placement in a penalty
fund. (C) A notice of appeal may: (1) Identify the area to
which the notice, order or decision relates; (2) State whether or not
the appellant requests that the commission view the site in question;
and (3) State whether or not
the appellant waives its right to have a hearing held within the time
requirements set forth under division (B) of section 1513.13 of the Revised
Code. (D) Failure to comply with the provisions of section
1513.13 of the Revised Code governing the filing of appeals with the commission
shall be sufficient basis for dismissing the appeal. The effect of such a
dismissal shall be to leave in effect the action of the chief of the division
of mineral resources management from which the dismissed appeal has been made
and shall not constitute an affirmance of said action by the
commission. (E) Filing of the notice of appeal. (1) The notice of appeal
shall be filed within thirty days after service of the notice, order or
decision by the chief of the division of mineral resources management and shall
be filed in accordance with paragraph (B) of rule 1513-3-05 of the
Administrative Code. (2) Where review of the
approval of disapproval of a permit application is sought, the appellant shall
comply with the requirements of section 1513.07 of the Revised Code and shall
file such notice within thirty days of notification of the final decision of
the chief of the division of mineral resources management on the permit
application. (3) The original and one copy of the
notice of appeal shall be filed with the reclamation commission. (4) A notice of appeal
shall be deemed filed when a complete notice in compliance with the rules of
this chapter is determined to be filed with the commission under the provisions
of paragraph (B) of rule 1513-3-05 of the Administrative Code. (5) A copy of the notice of appeal shall
be filed with the chief of the division of mineral resources management within
three days of the filing of such notice with the commission. (F) A notice of appeal may be amended
without leave of the commission during the time allowed for original filing or
a notice of appeal may be amended by leave of the commission at any time after
the time allowed for original filing. Amendment of a notice of appeal may not
be employed to cure jurisdictional defects in the filing, unless the amendment
is filed within the time allowed for original filing of the notice of
appeal.
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Rule 1513-3-05 | Filing and service of papers.
Effective:
November 1, 2018
(A) Documents required or permitted to be
filed with the commission may be filed personally, by mail addressed to the
reclamation commission or by facsimile transmission followed by hard
copy. (B) The filing of a notice of appeal is
controlled by section 1513.13 of the Revised Code. A notice of appeal shall be
deemed filed with the commission when received by the commission, or if the
notice of appeal is sent to the commission by certified mail, registered mail
or priority express mail, the notice of appeal shall be deemed filed with the
commission on the postmark date placed upon the sender's receipt by the
postal service. (C) The copy of the notice of appeal
required by section 1513.13 of the Revised Code to be filed with the chief of
the division of mineral resources management shall be deemed filed with the
chief when received by the chief, or if the copy of the notice of appeal is
sent to the chief by certified mail, registered mail or priority express mail,
the copy of the notice of appeal shall be deemed filed with the chief on the
postmark date placed upon the sender's receipt by the postal
service. (D) A document requesting temporary relief shall be deemed filed
with the commission only when received by the commission. (E) All filings other than a notice of appeal or request for
temporary relief, that are not sent to the commission by certified mail,
registered mail or priority express mail, shall be deemed filed with the
commission on the day on which the filings are received by the commission.
Filings made by certified mail, registered mail or priority express mail, shall
be deemed filed on the postmark date placed upon the sender's receipt by
the postal service. (F) Parties shall file an original and one copy of any papers
required or permitted to be filed with the commission. (G) Copies of all documents filed with the commission by any
party to an appeal shall be served upon all other parties to the appeal.
Service on a party represented by counsel shall be made on
counsel. (H) Service by mail is complete upon mailing. (I) All documents required or permitted to be filed with the
commission must contain: (1) The name of the
case; (2) The case
number; (3) The title of the
document; and (4) Proof of service in
the form of a statement of the date and manner of service and of the names of
the persons served. (J) If documents filed with the commission cite case law as
authority in support of an argument, the filing must include a complete copy of
the case law cited and must refer to the page number or paragraph on which the
relevant language is found. (K) Once an appeal is initiated, the commission may, through
order, establish a filing and service protocol, which may, among other
provisions, include the electronic transmission of documents.
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Rule 1513-3-06 | Computation and extension of time.
Effective:
November 1, 2018
(A) In computing any period of time
stated or allowed by Chapter 1513. or Chapter 1514. of the Revised Code or by
the rules of this chapter of the Administrative Code: (1) The day of the act or
event from which the designated period of time begins to run shall not be
included. (2) The last day of the
period so computed shall be included, unless it is a Saturday, Sunday or a
legal holiday, in which event the period runs until the end of the next day
which is not a Saturday, Sunday or a legal holiday. (3) When the period of
time stated or allowed is less than seven days, intermediate Saturdays, Sundays
and legal holidays shall be excluded in the computation. (4) Legal holidays are defined in section 124.19 of the
Revised Code. (B) Whenever a party is required or
permitted to respond to a document, and the document was sent by mail, the time
for response shall be extended by three days, unless otherwise ordered by the
commission. (C) The commission may lengthen or reduce
the time period allowed for any response or filing but the commission shall not
lengthen or reduce the time for: (1) Filing a notice of
appeal or a request for temporary relief; (2) Filing a petition for
an award of costs and expenses including attorneys' fees; (3) Giving public notice
of hearings on the adoption, amendment, or rescission of rules; or (4) Taking any other
action where a time period is stated by statute, unless agreed to be the
parties and approved by the commission. (D) Any request for an extension of time
for filing a document must be made within the time originally allowed for the
filing of said document with the commission.
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Rule 1513-3-07 | Intervention.
Effective:
October 11, 2013
(A) Any person may petition for leave to intervene in an appeal before the commission, which appeal has been initiated by another party. A petition for leave to intervene must 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. (B) A petitioner for leave to intervene shall incorporate in the petition a statement setting forth the interest of the petitioner and, where required, a showing of why the petitioner's interest is or may be adversely affected. (C) Subject to compliance with paragraph (A) of this rule, the commission shall grant intervention where the petitioner: (1) Had a statutory right to initiate an appeal in which he wishes to intervene; or (2) Has an interest which is or may be adversely affected by the chief's action under appeal. (D) If neither paragraph (C)(1) nor (C)(2) of this rule applies, the commission may consider the following in determining whether intervention will be permitted: (1) The nature of the issues; (2) The adequacy of representation of petitioner's interest which is provided by the existing parties to the proceeding; and (3) The ability of the petitioner to present relevant evidence and argument. (E) Any person granted leave to intervene in a proceeding may participate in such proceeding as a full party or, if desired by the intervenor or if so determined by the commission, in a capacity less than that of a full party. If an intervenor is to participate in a limited capacity, the extent and the terms of the participation shall be at the discretion of the commission. (F) The commission may allow the filing of amicus briefs and may permit oral argument at hearing by amicus curiae. Any person wishing to participate in an appeal as an amicus curiae shall move the commission for leave to so participate. Amicus participation is discretionary and will be permitted only upon the terms and conditions imposed by the commission.
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Rule 1513-3-08 | Temporary relief.
Effective:
October 11, 2013
(A) The chairperson of the reclamation commission may, under conditions he prescribes, grant temporary relief he considers appropriate pending final determination of an appeal in accordance with the provisions of division (C) of section 1513.13 of the Revised Code. (B) A request for temporary relief must meet the requirements for a notice of appeal set forth in paragraph (B) of rule 1513-3-04 of the Administrative Code and must also contain: (1) A detailed written statement setting forth the reasons why relief should be granted; and (2) Where a right to a decision in five days exists pursuant to division (C) of section 1513.13 of the Revised Code a clear statement of whether or not that right is waived. (C) The appellant may waive the requirement that the hearing for temporary relief be held in the locality of the permit area. (D) The chairperson may terminate the temporary relief hearing whenever, in the chairperson's judgment, further argument or evidence is unnecessary. (E) If at any time after the initiation of the temporary relief procedure, the appellant acts in a manner so as to frustrate the expeditious nature of this proceeding, such action shall constitute a waiver of the right to temporary relief. (F) The decision of the chairperson of the commission to grant or deny temporary relief may be appealed to the commission, including the chairperson who decided temporary relief, within thirty days after the chairperson's issuance of the decision in accordance with the provisions of section 1513.13 of the Revised Code. The commission may confine its review to the record developed at the temporary relief hearing conducted by the chairperson. The commission shall affirm the decision of the chairperson, unless it determines that the chairperson's decision is arbitrary, capricious, or otherwise inconsistent with law. (G) Temporary relief shall not be granted when the relief sought is the issuance of a permit when a permit has been denied, in whole or in part, by the chief.
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Rule 1513-3-09 | Responsive pleadings.
Effective:
October 11, 2013
(A) The reclamation commission may order a party to file a response to any request, allegation, averment, or argument made by another party in a notice of appeal or other document filed with the commission. The response ordered may be either a counter-argument or an admission or denial of averments, or other response. (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. (C) Failure to respond as ordered may be treated as a failure to appear at hearing.
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Rule 1513-3-10 | Discovery.
Effective:
October 11, 2013
(A) Parties to an appeal may obtain discovery in preparing their case in accordance with the provisions of rules 26 through 36 of the Ohio Rules of Civil Procedures. (B) Discovery may be obtained from all parties, including intervenors. Discovery from non-parties may be obtained pursuant to rule 45 of the Ohio Rules of Civil Procedures. (C) 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 are just, including, but not limited to, taking actions limiting the disobedient party's right to present evidence or terminating the proceedings and rendering a judgment by default against the disobedient party.
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Rule 1513-3-11 | Motions.
Effective:
November 1, 2018
(A) Except for oral motions which must be
made at a hearing on the record, or where the commission otherwise directs, any
motion made to the commission shall: (1) Be in
writing; (2) State with
particularity the grounds on which it is based; (3) Set forth the relief
sought; (4) Be filed with the
commission and served upon all parties to the appeal at least ten days in
advance of the hearing, unless the movant demonstrates that unusual
circumstances exist justifying an exception to this rule. (B) Motions for reconsideration of any decision of the commission
shall be made in writing within five business days, calculated in accordance
with paragraph (A)(3) of rule 1513-3-06 of the Administrative Code, 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. (C) A party may file a motion for the admission of additional
evidence. Such motion shall include an affidavit averring that the evidence is
newly discovered and could not have been ascertained with reasonable diligence
prior to the proceeding before the commission. (D) In compliance with the requirements of paragraph (D)(2) of
rule 1513-3-13 of the Administrative Code, motions for continuance of a hearing
must be filed with the commission and served upon all parties to an appeal at
least fourteen days in advance of a hearing. (E) Unless the commission orders otherwise, any party to an
appeal shall have ten days from service of the motion or until hearing,
whichever is earlier, to file a response to a motion. (F) If a party fails to make a motion in compliance with the
commission's scheduling orders, the commission may refuse to consider said
motion. If a party fails to respond to a motion, or fails to respond within a
time established by the commission, the commission may construe this failure as
a waiver of objection. (G) Objections to jurisdiction are not
waivable and may be raised at any point in an appeal. Motions to dismiss on
jurisdictional grounds should be filed as expeditiously as
practicable.
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Rule 1513-3-12 | Pre-hearing procedures.
Effective:
October 11, 2013
(A) The commission, or its hearing officer, on its own initiative or at the request of any party, may schedule and hold pre-hearing conferences regarding issues on 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. The commission may require the statement to: (1) Inform the commission in detail of the factual and legal issues which the case presents; (2) Include all exhibits which are to be introduced in evidence; (3) Outline the expected testimony of witnesses on controverted factual issues; (4) Set forth the party's position on legal issues, including any significant evidentiary questions, and the authorities in support thereof; (5) Include copies of available opinions and reports of all persons who may be called as expert witnesses.
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Rule 1513-3-13 | Notice of hearings and continuance of hearings.
Effective:
October 11, 2013
(A) Written notice of the time, place and nature of any hearing shall be given by the commission to all parties to, and persons interested in, an appeal at least five days before the hearing is held. (B) Written notice of hearing shall be mailed to the parties by certified mail. (C) If temporary relief is requested, the commission may give oral or written notice of the hearing at any reasonable time prior to the scheduled temporary relief hearing. (D) Continuance of scheduled hearings. (1) The commission may continue any hearing upon its own motion or may continue any hearing upon motion of any party, and upon the party's showing of good cause and proper diligence. (2) Motions for continuance of a hearing must be filed with the commission and served upon all parties to an appeal at least fourteen days in advance of a hearing. (3) Motions for continuance made less than fourteen 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. (4) Motions for continuance must state the reasons why a continuance is necessary. (5) A request for continuance by any party who has a right to a hearing or decision within a prescribed time period, shall be viewed as a waiver of that party's right to a hearing or decision within such prescribed period. (6) Resumptions of a hearing may be ordered by the commission in situations where a hearing cannot be concluded in the time initially set.
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Rule 1513-3-14 | Site views and location of hearings.
Effective:
November 1, 2018
(A) Site views. (1) After an action is
commenced, or as part of a notice of appeal, any party may request that the
commission view the site of mining or reclamation operations or other areas or
features relevant to the appeal. (2) Subject to any
applicable safety requirements, 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) A quorum of
commission members need not be present to conduct a site view. (4) The commission shall
control and direct the manner of conducting a site view. (5) All parties shall have prior notice
of a site view and shall have the right to be present. (6) 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. (7) The commission may
limit the number of persons who may accompany a party at a site
view. (8) No argument or independent oral
statement of the parties shall be permitted at a site view. (9) A site view shall not be considered
as evidence. (B) Location of hearings. The location of
hearings to be held under the rules of this chapter of the Administrative Code
shall be established by the commission, giving due regard to the convenience of
the parties and their witnesses, provided further that: (1) Where the hearing
reviews an order or notice of violation requiring cessation of mining, the
hearing shall be in reasonable proximity to the mining site so that any
viewings can be conducted during the course of the hearing; (2) Where the hearing is
on a motion for temporary relief, and if requested, the hearing shall be in the
locality of the permit area; (3) In all other
proceedings, the hearing shall be in Columbus, Ohio or at any other convenient
public location selected by the commission.
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Rule 1513-3-15 | Consolidation of proceedings.
Effective:
October 11, 2013
When appeals involving a common question of law or fact are pending before the commission, such appeals are subject to consolidation pursuant to a motion by a party or at the initiative of the commission. The commission shall administer consolidated appeals in the manner it deems most appropriate.
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Rule 1513-3-16 | Conduct of evidentiary hearings.
Effective:
November 1, 2018
(A) The reclamation commission shall
conduct hearings and other proceedings in such a manner as to render a complete
decision on all issues which are presented, and shall take any steps consistent
with the impartial discharge of its duties which are reasonable and necessary
to ascertain all relevant facts. The commission shall determine the conduct of
the hearing and the order of presentation of evidence. (B) Burden of persuasion. (1) In review of notices
of violation and cessation orders, the division of mineral resources management
shall have the ultimate burden of persuasion as to the validity of the notice
of violation or cessation order. (2) In review of civil
penalty assessments, the division of mineral resources management shall have
the ultimate burden of persuasion as to the fact of the underlying violation
and as to the amount of the penalty. (3) In review of any
other orders or decisions of the chief of the division of mineral resources
management, the ultimate burden of persuasion shall rest with the
appellant. (C) Evidence. (1) The reclamation
commission shall not be bound by the Ohio Rules of Evidence as promulgated by
the Ohio supreme court. (2) Parties shall have
the right to present evidence, cross examine witnesses and object to
evidence. (3) The commission will
rule upon the admissibility of evidence. (4) If any parties object
to the admission or rejection of any evidence or to other limitations of the
scope of any examination or cross-examination, they shall state briefly the
grounds for such objection, and the record may include argument thereon, as
allowed by the commission. (5) A continuing
objection, once made, shall be sufficient to preserve objection to an area of
evidence. (6) If the commission
refuses to admit evidence, the party offering the same may make a proffer
thereof, and the proffer shall be made a part of the record of the hearing.
Proffers may consist of testimony or documentary evidence. Proffers may be made
in the following manner: (a) A summary statement by counsel as to the content of the
expected testimony; (b) Questions propounded upon the witness and answered;
or (c) Submission of documentary evidence or tangible
objects. (7) Government documents
relating to an appeal may be considered by the commission in adjudicating the
case, but copies thereof may be substituted in the record of the proceedings.
If certain government documents entered as part of the record are required by
the chief for use by the division of mineral resources management pending the
appeal, the chief may retain such documents subject to recall by the
commission. (8) The commission may,
upon motion of any party, direct that a portion of a hearing be conducted in
camera and that the corresponding portion of the record be sealed to prevent
public disclosure of trade secrets, proprietary business information, or
confidential research, development, or commercial materials and information.
The party requesting such protection shall have the burden of establishing that
such protection is required. (9) Parties to a
commission hearing shall produce at hearing sufficient copies of any proposed
exhibits, so that: (a) The marked exhibit is kept with the commission's case
file; (b) Each attending commission member and the hearing officer is
provided with a copy of any proposed exhibits; and (c) All parties are provided with copies of any proposed
exhibits. (10) Where an exhibit is
oversized, copies in a reduced format shall be provided where possible. If an
exhibit is oversized, and cannot be readily reproduced in a reduced format, the
offering party is not required to produce additional copies of the proposed
exhibit at hearing in accordance with paragraph (C)(9) of this
rule. (D) A stipulation concerning issues of
fact or authenticity of documents before the commission must have the
concurrence of all full parties to an appeal. A stipulation may be oral or
written, and if written, shall be signed by all full parties and filed with the
commission prior to hearing. Such a stipulation is binding upon the commission.
A stipulation shall be a conclusive determination of the facts stipulated
to. (E) Written testimony. (1) 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 by a witness. A
party desiring to use an affidavit in lieu of oral testimony must serve all
full parties with a copy of the affidavit at least fifteen days prior to a
hearing. If all full parties to the appeal agree upon the use of the affidavit
in lieu of oral testimony, the affidavit shall be filed with the commission at
least five days prior to the hearing. (2) In the case of an
unavailable declarant, testimony may be offered in compliance with rule 804 of
the Ohio Rules of Evidence. (3) The use of a deposition in lieu of
the 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 complete deposition with the commission and serve written notice
to every other party at least ten days prior to hearing. (4) Objections to
deposition testimony shall be resolved in accordance with rule 32 of the Ohio
Rules of Civil Procedure. (5) Where a party is
attempting to use written testimony, and such written testimony has been filed
with the commission and served upon the parties in accordance with these rules,
any full party shall present to the commission a schedule of objections to the
written testimony prior to the commencement of hearing. (6) When another action involves the same
subject matter and has been brought between the same parties or their
representatives or successors in interest, all affidavits, depositions or
testimonies lawfully taken in a commission proceeding may be used in another
commission proceedings as if originally taken therefor. In the second
commission proceeding the admissibility of the written testimony shall again be
determined. (F) Witnesses. (1) The commission may
limit the number of witnesses upon any issue and may require any party to
present additional evidence on any issue. (2) The commission may
require that a witness be called only once at hearing, and that the parties
conduct all direct and cross examinations at the time when that witness is
called to testify. (3) The commission may require each party
in an appeal to identify prior to the commencement of a hearing each person who
will be called as a witness in an appeal. (4) Upon motion of a party or in the
commission's discretion, the commission may order the separation of
witnesses at hearing, provided that the commission shall not
exclude: (a) A party; or (b) An officer or employee of a party who is designated as its
representative by its attorney; or (c) A person whose presence is shown by a party to be essential
to the presentation of his cause. (5) A witness at any hearing shall
testify under oath or affirmation, which may be administered by any member of
the commission, by a hearing officer or by an Ohio notary. (6) At a hearing where witnesses are
called, only one attorney for each party may examine or cross-examine a witness
unless otherwise permitted by the commission. (7) The commission may examine on the
record the interested parties or witnesses. (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, and if good cause for such
failure to appear is not shown, the commission may dismiss the
appeal. (H) By agreement of the parties, a case
may be submitted for decision on stipulated facts and briefs; however, the
reclamation commission may direct that the case be heard in an evidentiary
hearing or argued before the commission. (I) The reclamation commission may order
the parties to a proceeding to submit briefs at a time designated by the
commission, on issues raised in an appeal or on any issues as the commission in
its discretion shall determine. (J) The commission may order the parties
to submit written closing arguments, post-hearing briefs or proposed findings
of fact and conclusions of law. (K) During the course of a hearing, the commission may order oral
argument upon any issue. (L) At any time after hearing, but prior to the issuance of a
decision, the commission may at its discretion or upon motion of a party,
reopen an appeal for further proceedings.
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Rule 1513-3-17 | Voluntary dismissal and settlement.
Effective:
October 11, 2013
(A) An appeal before the commission may be closed by the appellant's filing of a notice of withdrawal of appeal at any time prior to the commission's rendering of a final decision. (B) If all full parties agree, settlement may be allowed at any stage of the proceedings prior to a final decision. In all cases where a proceeding is sought to be terminated by any of the parties as a result of a settlement agreement, the terms of such settlement shall be submitted to the commission for final action. (C) 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.
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Rule 1513-3-18 | Reports and recommendations of the hearing officer.
Effective:
October 11, 2013
(A) Unless otherwise directed by the commission, where a hearing officer has conducted an adjudicatory hearing, the hearing officer shall submit a report and recommendation to the commission in accordance with the provisions of section 1513.131 of the Revised Code. (B) After an action is commenced, or as part of a notice of appeal, any full party to an appeal may make a written motion requesting that its hearing be conducted before the commission, rather than before a hearing officer. (C) The hearing officer shall submit reports and recommendations to the commission on any interlocutory rulings which fully adjudicate the issues of the appeal. (D) Reports and recommendations of hearing officers shall be submitted to the commission within a time reasonably sufficient to allow the commission to issue its orders within any time limits imposed by law. However, in the event that a decision 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. (E) Reports and recommendations of the hearing officers shall be sent to the parties by certified mail. (F) A party may, within fourteen days after receipt of a report and recommendation of the hearing officer, serve and file written objections to the hearing officer's report, which objections may include a motion for admission of additional evidence. Objections shall be specific and state with particularity the grounds therefor. (G) Any party may within fourteen days after receipt of objections to the report and recommendation of the hearing officer, file a response. (H) The commission may order oral argument upon objections to a report and recommendation of the hearing officer.
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Rule 1513-3-19 | Decisions of the commission.
Effective:
October 11, 2013
(A) All final decisions of the commission shall set forth: (1) Findings of fact; (2) Conclusions of law; and (3) An order affirming, modifying, or vacating and remanding, the matter under appeal. (B) All decisions of the commission shall be signed by the chairperson of the commission or by any commission member designated by the chairperson. (C) When a decision is issued, the commission shall give notice thereof by certified mail to all parties to the proceeding. (D) Decisions of the commission shall be issued within a reasonable time after appeal and in accordance with division (B) of section 1513.13 of the Revised Code. (E) Clerical mistakes in decisions, orders or other parts of the record and errors therein from oversight or omission may be corrected by the commission at any time on its own initiative or on motion of any party. 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 appellate court, a final decision may be so corrected with leave of the court. 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. (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 commission shall, thirty days after issuing a final decision, remit the funds to the appellant in accordance with division (E) of section 1513.02 of the Revised Code. (2) If a review of a civil penalty assessment results in an order affirming the penalty, the commission shall, thirty days after issuing a final decision, transfer the funds to the chief of the division of mineral resources management. (3) If a review of a civil penalty assessment results in an order increasing the penalty, the person to whom the order was issued shall pay the difference to the reclamation commission within thirty days after the order is received, and the commission shall transfer the funds plus the additional penalty amount to the chief of the division of mineral resources management. (4) If any party requests judicial review of a final order of the commission which order relates to a civil penalty assessment, that party must so notify the commission office within thirty days after the order is issued, and the commission shall continue custody of the funds until the judicial review is completed. If the commission is not so notified, the funds shall be transferred to the proper party as set forth in this rule.
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Rule 1513-3-21 | Award of costs and expenses.
Effective:
October 11, 2013
(A) Pursuant to division (E)(1)(c) of section 1513.13 of the Revised Code, the division of mineral resources management may file a petition for an award of costs and expenses including attorneys' fees reasonably incurred in connection with any appeal before the reclamation commission which results in a final order being issued by the commission and where the division demonstrates that a party initiated or participated in the appeal in bad faith and for the purpose of harassing or embarrassing the division. (1) A petition for an award of costs and expenses including attorneys' fees requested under division (E)(1)(c) of section 1513.13 of the Revised Code must be filed with the commission within sixty days of the petitioner's receipt of the final decision of the commission in the action in which the fees were incurred. Failure to make a timely filing of the petition shall constitute a waiver of the right to such an award. (2) Contents of petition. A petition filed with the commission pursuant to division (E)(1)(c) of section 1513.13 of the Revised Code shall include the name of the person from whom costs and expenses are sought and the following shall be submitted in support of the petition: (a) An affidavit setting forth in detail all costs and expenses, including attorneys' fees, reasonably incurred for, or in connection with, the division's participation in the proceeding; (b) Receipts or other evidence of such costs and expenses; and (c) Where attorneys' fees are requested, evidence that the hours expended and the fees requested, are reasonable for the appeal and for the locality. (3) Any person served with a copy of a petition shall have thirty days from service of the petition within which to file an answer to such petition. (4) An award under this rule may include: (a) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of the division's participation in a proceeding before the commission; and (b) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award of costs. (B) A decision by the chief of the division of mineral resources management granting or denying, in whole or in part, a request for an award of costs and expenses including attorneys' fees made under division (E)(1)(a) or (E)(1)(b) of section 1513.13 of the Revised Code shall be appealable to the commission under division (A) of section 1513.13 of the Revised Code. Such appeal shall be filed in compliance with division (A) of section 1513.13 of the Revised Code and in compliance with rule 1513-3-04 of the Administrative Code. (C) Any person aggrieved by a decision concerning the award of costs and expenses in an administrative appeal before the reclamation commission may appeal such order of the commission in the manner prescribed in section 1513.14 of the Revised Code. (D) A party's participation in an appeal brought under Chapter 1514. of the Revised Code does not qualify for an award of costs and expenses including attorneys' fees.
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Rule 1513-3-22 | Appeals from commission decisions.
Effective:
November 1, 2018
(A) Any party aggrieved or adversely
affected by a decision of the reclamation commission: (1) In actions involving
coal mining and reclamation brought under Chapter 1513. of the Revised Code 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, or (2) In actions involving
industrial minerals mining and reclamation and brought under Chapter 1514. of
the Revised Code 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. (B) Appeals must be filed within thirty
days of the issuance of the decision by the commission. (C) Appeals of commission decisions shall
be filed in accordance with the provisions of the Ohio Rules of Appellate
Procedure. (D) To perfect an appeal of a commission
decision, the appealing party shall: (1) File a notice of
appeal with the commission within the time allowed for appeal; (2) Serve a copy of the
notice of appeal to each party, or its counsel, at the last known address;
and (3) File a directive with
the office of the commission requesting the transmission of the complete record
of proceedings before the commission to the appropriate appellate court. The
commission shall control the transcription and transmission of the
record. (E) A notice of appeal from a commission
decision shall: (1) Identify the party
appealing; (2) Identify and attach
the decision of the commission being appealed; (3) Identify the case
number assigned to the matter by the commission; and (4) Identify the court to
which the appeal is taken. (F) The expense of transcribing the
record of a hearing before the commission shall be borne by the party appealing
the decision of the commission. (G) All matters remanded to the
commission shall be disposed of in accordance with the order of the reviewing
court.
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