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(123rd General Assembly)(Amended House Bill Number 384)
AN ACT
To amend sections 1509.08, 1513.13, 1561.10, 1561.35, 1561.51,
1563.13, 1565.15, 5727.391, and 6111.044, to amend section 4909.15 as amended
by Am. Sub. S.B. 3 of the 123rd General Assembly to enact new section 5733.39
and sections 1561.351, 1561.53,
1561.54, and 1561.55, and to repeal sections 1561.41, 1561.42, 1561.43,
1561.44, 1565.17, 1565.18, 1565.19, 1565.20, 1565.21, 1565.22, 1565.23,
1567.28, 1567.29, 1567.37, 1567.56, 1567.64, and 5733.39 of the Revised Code
to revise
qualifications
for membership on the Mine Examining Board, to add two members to the Board,
to clarify provisions
governing appeals involving the board, to revise qualifications for first aid
providers who must be on duty at surface coal mines, to require all surface
coal miners
to receive first aid training, to make other changes
governing mine safety and operation, including the elimination of certain
provisions involving weighing and measuring and explosions at coal mines, to
increase the Ohio coal tax credit for electric companies burning Ohio coal
from $1 per ton to $3 per ton, to eliminate certain restrictions on companies
claiming the credit, to allow those companies to retain the credit rather than
pass it through to consumers, and to terminate the credit for Ohio coal burned
after 2004.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1 . That sections 1509.08, 1513.13, 1561.10, 1561.35,
1561.51, 1563.13, 1565.15, 5727.391, and 6111.044 be amended, section 4909.15
as amended by Am. Sub. S.B. 3 of the 123rd General Assembly be amended, and
new section 5733.39 and sections 1561.351,
1561.53, 1561.54, and 1561.55 of the Revised Code be enacted to
read as follows:
Sec. 1509.08. Upon receipt of an application for a permit
required by section 1509.05 of the Revised Code, or upon receipt
of an application for a permit to plug and abandon under section
1509.13 of the Revised Code, the chief of the division of oil and
gas shall determine whether the well is or is to be located in a
coal bearing township. Whether or not the well is or is to be located in a coal
bearing township, the chief, by order, may refuse to issue a
permit required by section 1509.05 of the Revised Code to any
applicant who at the time of applying for the permit is in
material or substantial violation of this chapter or rules
adopted or orders issued thereunder under it. The chief shall
refuse to
issue a permit to any applicant who at the time of applying for
the permit has been found liable by a final nonappealable order
of a court of competent jurisdiction for damage to streets,
roads, highways, bridges, culverts, or drainways pursuant to
section 4513.34 or 5577.12 of the Revised Code until the
applicant provides the chief with evidence of compliance with the
order. No applicant shall attempt to circumvent this provision
by applying for a permit under a different name or business
organization name, by transferring responsibility to another
person or entity, by abandoning the well or lease, or by any
other similar act. If the well is not or is not to be located in a coal
bearing township, or if it is to be located in a coal bearing
township, but the landowner submits an affidavit that he owns
attesting to ownership of the property in fee simple, including the
coal, and has no objection to the well, the chief shall issue the permit. If the application to drill, reopen, or convert concerns a
well which that is or is to be located in a coal bearing
township, the chief of the division of oil and gas shall transmit to the chief
of the division of mines and reclamation two copies of the application and
three copies of the map required in section 1509.06 of the Revised
Code;, except that, when the affidavit with the waiver of
objection described in the preceding paragraph is submitted, the
chief of the division of oil and gas shall not transmit such the
copies. The chief of the division of mines and reclamation shall immediately
shall notify the owner or lessee of any affected mine that the
application has
been filed and send to the owner or lessee two copies of the map
accompanying the application setting forth the location of the
well. If the owner or lessee objects to the location of the well
or objects to any location within fifty feet of the original
location as a possible site for relocation of the well, he the owner
or lessee shall notify the chief of the division of mines and reclamation
of the objection, giving the reasons therefor for the objection
and, if applicable, indicating on a copy of the map the particular location or
locations within fifty
feet of the original location to which he the owner or lessee
objects as a site for possible relocation of the well, within six days after
the receipt of the notice. If the chief of the division of mines and
reclamation receives no objections from the owner or lessee of the mine
within ten days after the receipt of the notice by the owner or
lessee, or if in the opinion of the chief of the division of mines and
reclamation the objections offered by the owner or lessee are not sufficiently
well founded, he shall the chief immediately shall notify
the owner or lessee of his those findings. The owner or lessee
may appeal the decision of the chief of the division of mines and reclamation
to the mine
examining board created under section 1561.10 of the Revised
Code. The appeal shall be filed within fifteen days from the
date on which the owner or lessee receives the notice. If the
appeal is not filed within that time, the chief of the division of mines and
reclamation shall immediately shall approve the application,
retain a copy
of the application and map, and return a copy of the application
to the chief of the division of oil and gas with his the
approval
noted thereon on it. Thereupon the the chief of
the division of oil and gas then shall issue the permit if the
provisions of this chapter
pertaining to the issuance of such a permit have been complied
with. If the chief of the division of mines and reclamation receives an objection
from the owner or lessee of the mine as to the location of the
well within ten days after receipt of the notice by the owner or
lessee, and if in the opinion of the chief the objection is well
founded, he the chief shall disapprove the application and
immediately
return it to the chief of the division of oil and gas together
with his the reasons for disapproval and a suggestion for a new
location for the well, provided that the suggested new location
shall not be a location within fifty feet of the original
location to which the owner or lessee has objected as a site for
possible relocation of the well if the chief has determined that
the objection is well founded. The chief of the division of oil
and gas shall immediately shall notify the applicant for the
permit of
the disapproval and any suggestion made by the chief of the
division of mines and reclamation as to a new location for the well. The
applicant may withdraw his the application or amend his
the application
to drill the well at the location suggested by the chief of the
division of mines and reclamation, or he the applicant may
appeal the disapproval of the
application by the chief of the division of mines and reclamation to the mine
examining board created under section 1561.10 of the
Revised Code. If the chief of the division of mines and reclamation receives no objection
from the owner or lessee of a mine as to the location of the
well, but does receive an objection from the owner or lessee as
to one or more locations within fifty feet of the original
location as possible sites for relocation of the well within ten
days after receipt of the notice by the owner or lessee, and if
in the opinion of the chief the objection is well founded, he shall
the chief nevertheless shall approve the application and shall
immediately return it immediately to the chief of the division
of oil and gas together
with his the reasons for disapproving any of the locations to
which the owner or lessee objects as possible sites for relocation of
the well. Thereupon the The chief of the division of oil and
gas then shall issue a permit, if the provisions of this chapter
pertaining to the issuance of such a permit have been complied
with, incorporating as a term or condition of the permit that the
applicant is prohibited from commencing drilling at any location
within fifty feet of the original location that has been
disapproved by the chief of the division of mines and reclamation. The
applicant may appeal to the mine examining board the terms and conditions
of the permit prohibiting the commencement of drilling at any
such location disapproved by the chief of the division of mines and
reclamation. Any such appeal shall be filed within fifteen days from the
date the applicant receives notice of the disapproval of his the
application, any other location within fifty feet of the original
location, or terms or conditions of the permit, or the owner or
lessee receives notice of the chief's decision. No approval or
disapproval of an application shall be delayed by the chief of
the division of mines and reclamation for more than fifteen days from the date
of sending the notice of the application to the mine owner or lessee
as required by this section. All appeals provided for in this section shall be treated
as expedited appeals. The mine examining board shall hear any
such appeal in accordance with section 1561.53 of the Revised Code and render a
decision within thirty days of the filing of the appeal. The chief of the division of oil and gas shall not issue a
permit to drill a new well or reopen a well which that is or is
to be located within three hundred feet of any opening of any mine used
as a means of ingress, egress, or ventilation for persons
employed therein in the mine, nor within one hundred feet of any
building or
inflammable structure connected therewith with the mine and
actually used as a part of the operating equipment of the mine, unless the
chief of
the division of mines and reclamation determines that life or property will
not be endangered by drilling and operating the well in that
location. The chief of the division of mines and reclamation may suspend the drilling
or reopening of a well in a coal bearing township if he determines
after determining that the drilling or reopening activities present
an imminent and substantial threat to public health or safety or to
miners' health or safety and he has having been unable to
contact the
chief of the division of oil and gas to request an order of
suspension under section 1509.06 of the Revised Code. Before
issuing a suspension order for this purpose, the chief of the
division of mines and reclamation shall
notify the owner in such a manner as that in the
chief's judgment would provide reasonable notification that he the
chief intends to issue a suspension order. The chief may issue such an
order without prior notification if reasonable attempts to notify
the owner have failed, but in that event notification shall be
given as soon thereafter as practical. Within five calendar days
after the issuance of the order, the chief shall provide the
owner an opportunity to be heard and to present evidence that the
activities do not present an imminent and substantial threat to
public health or safety or to miners' health or safety. If,
after considering the evidence presented by the owner, the chief
determines that the activities do not present such a threat, he the
chief shall revoke the suspension order. An owner may appeal a suspension
order issued by the chief of the division of mines and reclamation under this
section to the mine examining board or may appeal the order directly to the
court of common pleas of the county in which the well is located. Sec. 1513.13. (A)(1) A person having an interest that is or may be
adversely
affected by a finding or determination of the chief of the division of mines
and reclamation made under section 1509.08, 1561.35, 1561.351, 1563.13, or
6111.044 of the
Revised
Code or an investigation made
by the chief under section 1561.51 of the
Revised
Code may appeal to the mine
examining board in accordance with those sections. Any
other
person having an interest that
is or may be adversely affected by a notice of violation, order,
or decision of the chief of the division of mines and reclamation,
except other than a
show cause order or an order that adopts a rule, or by any
modification, vacation, or termination of such a notice, order,
or decision, may appeal by filing a notice of appeal with the
reclamation commission for review of the notice,
order, or
decision within thirty days after the notice, order, or decision
is served upon the person or within thirty days after its
modification, vacation, or termination and by filing a copy of
the notice of appeal with the chief within three days after
filing the notice of appeal with the commission. The
notice of appeal
shall contain a copy of the notice of violation, order, or
decision complained of and the grounds upon which the appeal is
based. The commission has exclusive original jurisdiction
to hear and
decide such appeals. The filing of a notice of appeal under this
division (A)(1) of this section does not operate as a stay of
any order, notice of
violation, or decision of the chief. (2) The permittee, the chief, and other interested persons
shall be given written notice of the time and place of the
hearing at least five days prior thereto. The hearing shall be
of record. (3) Any person authorized under this section to appeal to
the commission may request an informal review by the chief
or the
chief's designee by filing a written request with the chief within thirty
days after a notice, order, decision, modification, vacation, or termination
is served upon the person. Filing of the written request shall toll the time
for appeal before the commission, but shall not operate as
a stay of any order,
notice of violation, or decision of the chief. The chief's determination of
an informal review is appealable to the commission under
this section. (B) The commission shall affirm the notice of violation,
order, or decision of the chief unless the commission
determines that
it is arbitrary, capricious, or otherwise inconsistent with law;
in that case the commission may modify the notice of
violation,
order, or decision or vacate it and remand it to the chief for
such further proceedings as that the commission may
direct. The commission shall conduct hearings and render decisions
in a timely fashion, except that all of the following apply: (1) When the appeal concerns an order for the cessation of
coal mining and reclamation operations issued pursuant to
division (D)(1) or (2) of section 1513.02 of the Revised Code,
the commission shall issue its written decision within
thirty days
after the receipt of the appeal unless temporary relief has been
granted by the chairperson pursuant to division (C) of
this section; (2) When the appeal concerns an application for a permit
under division (I) of section 1513.07 of the Revised Code, the
commission shall hold a hearing within thirty days after
receipt of
the notice of appeal and issue its decision within thirty days
after the hearing; (3) When the appeal concerns a decision of the chief
regarding release of bond under division (F) of section 1513.16
of the Revised Code, the commission shall hold a hearing
within thirty
days after receipt of the notice of appeal and issue its decision
within sixty days after the hearing. (C) The chairperson of the
commission, under conditions
the chairperson prescribes, may grant temporary relief
the chairperson considers appropriate
pending final determination of an appeal if all of the following
conditions are met: (1) All parties to the appeal have been notified and given
an opportunity for a hearing to be held in the locality of the
subject site on the request for temporary relief and the
opportunity to be heard on the request; (2) The person requesting relief shows that there is a
substantial likelihood that the person will prevail on the
merits; (3) The relief will not adversely affect public health or
safety or cause significant imminent environmental harm to land,
air, or water resources. The chairperson shall issue a decision expeditiously,
except that when the applicant requests relief from an order for the
cessation of coal mining and reclamation operations issued
pursuant to division (D)(1) or (2) of section 1513.02 of the
Revised Code, the decision shall be issued within five days after
its receipt. Any party to an appeal filed with the commission who is
aggrieved or adversely
affected by a decision of the chairperson to grant or
deny temporary relief under this section may appeal that decision to the
commission. The commission may
confine its review to the record developed at the
hearing before the chairperson. The appeal shall be filed with the commission within
thirty days
after the chairperson issues the
decision on the request for temporary relief. The
commission shall issue a
decision as expeditiously as possible, except that when the
appellant requests relief from an order for the cessation of coal
mining and reclamation operations issued pursuant to division
(D)(1) or (2) of section 1513.02 of the Revised Code, the
decision of the commission shall be issued within five
days after
receipt of the notice of appeal. The commission shall affirm the decision of the
chairperson
granting or denying temporary relief unless it determines that the decision is
arbitrary, capricious, or otherwise inconsistent
with law. (D) Following the issuance of an order to show cause as to
why a permit should not be suspended or revoked pursuant to
division (D)(3) of section 1513.02 of the Revised Code, the chief
or a representative of the chief shall hold a public
adjudicatory hearing after giving written notice of the time, place, and date
thereof. The hearing shall be of record. Within sixty days following the public hearing, the chief
shall issue and furnish to the permittee and all other parties to
the hearing a written decision, and the reasons therefor,
concerning suspension or revocation of the permit. If the chief
revokes the permit, the permittee immediately shall cease coal
mining operations on the permit area and shall complete
reclamation within a period specified by the chief, or the chief
shall declare as forfeited the performance bonds for the
operation. (E)(1) Whenever an enforcement order or permit decision is
appealed under this section or any action is filed under division
(B) of section 1513.15 or 1513.39 of the Revised Code, at the
request of a prevailing party, a sum
equal to the aggregate amount of all costs and
expenses, including attorney's fees, as determined to have been
necessary and reasonably incurred by the prevailing party for or
in connection with participation in the enforcement
proceedings before the commission, the court under section
1513.15 of
the Revised Code, or the chief under section 1513.39 of the
Revised Code, may be awarded, as considered proper, in accordance with
divisions (E)(1)(a) to (c) of this section. In no event shall
attorney's fees awarded under this section exceed, for the kind
and quality of services, the prevailing market rates at the time
the services were furnished under division (A) of this section. A
party may be entitled to costs and expenses related solely to the
preparation, defense, and appeal of a petition for costs and
expenses, provided the costs and expenses are limited and
proportionate to costs and expenses otherwise allowed under
division (E) of this section. (a) A party, other than the permittee or the division of
mines and reclamation, shall file a petition, if any, for an award of costs
and
expenses, including attorney's fees, with the chief, who shall
review the petition. If the chief finds that the party, other
than the permittee or the division of mines and reclamation, prevailed
in
whole or in part, made a substantial contribution to a full and
fair determination of the issues, and made a contribution
separate and distinct from the contribution made by any other
party, the chief may award to that party the party's costs
and expenses, including attorney's fees that were necessary and reasonably
incurred by the party for, or in connection with,
participation in the proceeding before the commission. (b) If a permittee who made a request under this division
(E)(1) of this section demonstrates that a party other than a
permittee who initiated an
appeal under this section or participated in such an appeal
initiated or participated in the appeal in bad faith and for the
purpose of harassing or embarrassing the permittee, the permittee
may file a petition with the chief. The chief may award to the
permittee the costs and expenses reasonably incurred by the
permittee in connection with participation in the appeal and
assess those costs and expenses against the party who initiated the appeal. (c) The division of mines and reclamation may file, with the
commission, a request for an award to the division of the
costs and
expenses reasonably incurred by the division in connection with
an appeal initiated under this section. The commission
may assess
those costs and expenses against the party who initiated the
appeal if the division demonstrates that the party initiated or
participated in the appeal in bad faith and for the purpose of
harassing or embarrassing the division. (2) Whenever an order issued under this section or as a
result of any administrative proceeding under this chapter is the
subject of judicial review, at the request of any party, a sum
equal to the aggregate amount of all costs and expenses,
including attorney attorney's fees, as determined by the court
to have been
necessary and reasonably incurred by the party for or in connection with
participation in the proceedings, may be awarded to either party,
in accordance with division (E)(1) of this section, as the court,
on the basis of judicial review, considers proper. Sec. 1561.10. (A) There is hereby created in the division
of mines and reclamation a " the mine examining board"
consisting of three five members
to be appointed by the governor with the advice and consent of the
senate. Terms of office shall be for three years, commencing on
the eleventh day of September, and ending on the tenth day of
September. Each member shall hold office from the date of his
appointment until the end of the term for which he the member
was appointed. Vacancies
shall be filled by appointment by the governor. Any
member appointed to fill a vacancy occurring prior to
the expiration of the term for which his the member's
predecessor was
appointed shall hold office for the remainder of such that term.
Any
member shall continue in office subsequent to the expiration date
of his the member's term until his the member's
successor takes office, or until a period
of sixty days has elapsed, whichever occurs first. The governor
may remove any member of the board for misconduct, incompetency,
neglect of duty, or for any other sufficient cause. Not more than one One of the appointees to such
the board shall be
a person who, because of his previous vocation, employment, or
affiliation, can be classed as a representative of the owner,
operator, or lessee of a coal mine, and not more than
one. Prior
to making the appointment, the governor shall
request the major trade association in this state that
represents owners, operators, or lessees of coal mines to submit
to the governor the names and qualifications of three nominees.
The governor shall appoint one of the nominees to the Board.
Except as otherwise provided in this division, the nominees
shall have not less than five years of practical experience in
the coal mining industry in positions in which they developed
competence in the topics of mine health and safety. The major
trade association shall represent a membership that produced a
larger quantity of coal mined in this state than the membership
of any other trade association in the year prior to the year in
which the appointment is made.
ONE OF THE APPOINTEES SHALL BE A PERSON WHO, BECAUSE OF PREVIOUS
VOCATION, EMPLOYMENT, OR AFFILIATION, CAN BE CLASSED AS A
REPRESENTATIVE OF THE OWNER, OPERATOR, OR LESSEE OF AN AGGREGATES
MINE. PRIOR TO MAKING THE APPOINTMENT, THE GOVERNOR SHALL REQUEST
THE MAJOR TRADE ASSOCIATION IN THIS STATE THAT REPRESENTS OWNERS,
OPERATORS, OR LESSEES OF AGGREGATES MINES TO SUBMIT TO THE
GOVERNOR THE NAMES AND QUALIFICATIONS OF THREE NOMINEES. THE
GOVERNOR SHALL APPOINT ONE OF THE NOMINEES TO THE BOARD. EXCEPT
AS OTHERWISE PROVIDED IN THIS DIVISION, THE NOMINEES SHALL HAVE
NOT LESS THAN FIVE YEARS OF PRACTICAL EXPERIENCE IN THE AGGREGATES
MINING INDUSTRY IN POSITIONS IN WHICH THEY DEVELOPED COMPETENCE IN
THE TOPICS OF MINE HEALTH AND SAFETY. THE MAJOR TRADE ASSOCIATION
SHALL REPRESENT A MEMBERSHIP THAT PRODUCED A LARGER QUANTITY OF
AGGREGATES MINED IN THIS STATE THAN THE MEMBERSHIP OF ANY OTHER
TRADE ASSOCIATION IN THE YEAR PRIOR TO THE YEAR IN WHICH THE
APPOINTMENT IS MADE. One of such the
appointees shall be a person who, because of his previous
vocation, employment, or affiliation, can be classed as a
representative of employees presently currently engaged in
coal mining operations. Not
Prior to making the appointment, the governor shall
request the highest ranking officer in the major employee
organization representing coal miners in this state to submit to
the governor the names and qualifications of three nominees.
The Governor shall appoint one of the nominees to
the Board. Except as otherwise provided in this
division, the nominees shall have not less than
five years of practical experience in dealing with mine health
and safety issues and at the time of the nomination shall be
employed in positions that involve the protection of the health
and safety of miners. The major employee organization
representing coal miners shall represent a membership consisting
of the largest number of coal miners in this state compared to
other employee organizations in the year prior to the year in
which the appointment is made. One of the appointees shall be a person who, because of previous vocation,
employment, or affiliation, can be classed as a representative of employees
currently engaged in aggregates mining operations. Prior to making the
appointment, the governor shall request the highest ranking officer in the
major employee organization representing aggregates miners in this state to
submit to the governor the names and qualifications of three nominees. The
governor shall appoint one of the nominees to the board. Except as otherwise
provided in this division, the nominees shall
have not
less than five years of practical experience in dealing with mine health and
safety issues and at the time of the nomination shall be employed in positons
that involve the protection of the health and safety of miners. The major
employee organization representing aggregates miners shall represent a
membership consisting of the largest number of aggregates miners in this state
compared to other employee organizations in the year prior to the year in
which the appointment is made. One
of the appointees shall be a person who can
be classed as a representative of the public.
Except as otherwise provided in this division, the appointee
shall have not less than five years of technical, practical
experience in either the field of mine health and safety or
occupational health and safety, or both. For a period of three
years prior to the appointment, the appointee shall not have
been employed in the mining industry. An appointee who has received a bachelor's
degree in mining engineering or technology need not have at least five years
of
practical experience as otherwise provided in this division, but shall
have a total of not less than three years of practical
experience in the mining industry in a position that provided
the person with practical knowledge of mine health and safety. Not more than two three of the members of said
the board shall
belong to the same political party. The chief of the
division of mines and reclamation or the chief's
designee shall be ex officio secretary to
the board. (B) The board shall have full power to do both of the
following: (A) To adopt (1) Adopt and enforce reasonable rules
relative to the
exercise of its powers and proper rules to govern its proceedings
and to regulate the manner of appeals;
(B) To employ (2) Employ experts, advisors, and
secretarial, clerical, stenographic, and other employees.
(C) Each member of the board shall receive a salary fixed
pursuant to division (J) of section 124.15 of the Revised Code
when actually performing the official duties of his
office, and, in addition thereto to a salary,
he each member shall be
reimbursed for all actual and
necessary travel and incidental expenses incurred in carrying out the
official duties of his office. (D) The board shall elect from its members a chairman
chairperson
and vice-chairman vice-chairperson A quorum of the board shall
consist of not less than two three members, and no action
at any meeting
shall be taken
unless at least two three votes are in accord. The secretary of
the
board shall keep a true and complete record of all the
proceedings of the board. With the approval of the board, the
secretary may employ clerical assistants. The board shall adopt
all necessary rules, regulations, and bylaws to govern its times
and places of meetings, for organization and reorganization, for
holding all examinations, and for governing all other matters
requisite to the exercise of its powers, the performance of its
duties, and the transaction of its business under this chapter and
Chapters 1509., 1563., 1565., and 1567. of the Revised Code. The board
shall adopt and have an official seal. (E) Each member of the board shall complete the
annual refresher training required for miners under 30
C.F.R.
48.8 (1997). In addition to the annual refresher training, each
member shall complete twenty-four hours of continuing education
during each member's three-year term of office on the topics of
mining technology and laws governing mining health and
safety. Sec. 1561.35. If the deputy mine inspector finds that any
matter, thing, or practice connected with any mine and not
prohibited specifically by law, is dangerous or hazardous, or
that from a rigid enforcement of this chapter and Chapters 1509.,
1563., 1565., and 1567. of the Revised Code, such the matter,
thing, or
practice would become dangerous and hazardous so as to tend to
the bodily injury of any person, such the deputy mine inspector
shall forthwith shall give notice in writing to the owner,
lessee, or agent
of the mine, of the particulars in which he the deputy mine
inspector considers such the mine
or any matter, thing, or practice connected therewith is
dangerous or hazardous and recommend such changes as that
the conditions require, and shall forthwith shall mail a copy of
such the report and his the deputy mine
inspector's recommendations to the
chief of the
division of mines and reclamation. Upon receipt of such the
report and
recommendations, the
chief shall forthwith shall make a finding thereon and mail a
copy to
the owner, operator, lessee, or agent of such the mine, and to
the
deputy mine inspector; a copy of such the finding of the chief
shall be posted upon the bulletin board of the mine. Where the miners
have a mine safety committee, one additional copy shall be posted
on said the bulletin board for the use and possession of the
committee. The owner, operator, lessee, or agent of such the mine, or the
authorized representative of the workers of such the mine,
may within ten days may appeal to the mine examining board for a
review and
redetermination of the finding of the chief in such the matter
in accordance with section 1561.53 of the Revised Code. A
copy of the findings decision of the board shall be mailed as
required by
this section for the mailing of the finding by the chief on the
deputy mine inspector's report. Sec. 1561.351. A deputy mine inspector who makes a finding concerning a
violation of this chapter or Chapter
1563., 1565., or 1567. or section 1509.09, 1509.12, 1509.13,
1509.14, 1509.15, 1509.17, or 1509.18 of the
Revised
Code that involves mining
safety shall notify the chief of the division of mines and
reclamation of the finding. The chief shall review the
inspector's finding, make a written determination regarding it, and
provide a copy of the written determination to the owner, operator,
lessee, or agent of the mine involved. The chief shall provide a copy of the
written determination to any other interested party upon request. A person, such as an owner, operator,
lessee, or agent of the mine or the authorized representative of
the workers of the mine, who has an interest that is or may be
adversely affected by the chief's determination
may appeal the determination, not later than ten days after receiving
notice of the determination, to the mine
examining board by filing a copy of the chief's written determination with
the board. The board shall hear the appeal in accordance with section 1561.53
of the Revised Code. Sec. 1561.51. When written charges of neglect of
duty, incompetency, or
malfeasance in office against the deputy mine inspector are filed with the
chief of the division of mines and reclamation, signed by not less than
fifteen employees, or
otherwise as provided in section 1561.50 of the
Revised Code, or the owner,
lessee, or agent of a mine, and the signers of such the charges
are dissatisfied with the result of the investigation made by the chief, they
may appeal to the
mine examining board by filing the same charges against such the
deputy mine
inspector and a copy of the report of the investigation made by the chief in
the matter with the board, and the board shall make an investigation of
such charges, or may hold an open hearing thereon hear the appeal in
accordance with section 1561.53 of the Revised Code. The board shall mail a written
report copy of the result of such investigation or hearing,
addressed its decision to the complainant whose name appears first
in the charges. Sec. 1561.53. (A) As used in this section,
"decision of the chief" includes a decision, disapproval of an
application to drill a well, terms and conditions of a permit,
or a suspension order issued by the chief of the division of
mines and reclamation under section 1509.08 of the Revised Code; a finding of the chief
made under section 1561.35 or 1563.13 of the Revised Code; a determination made by
the chief under section 1561.351 of the Revised Code; a report of an
investigation made by the chief under section 1561.51 of the Revised Code; or disapproval of
an application for a permit, renewal permit, or modification issued
under section 6111.044 of the Revised Code. (B)(1) Except as otherwise provided in division (B)(2)
of this section, the mine examining
board has exclusive original jurisdiction to hear and decide
appeals made to the board under sections 1509.08, 1561.35,
1561.351, 1561.51, 1563.13, and 6111.044 of the Revised Code. An appeal made under
those sections does not operate as a stay of any decision of the
chief. (2) Notwithstanding any other provision of law to the
contrary, From the effective date of this section until the date
on which all members of the Mine Examining Board have been
appointed in accordance with the qualifications established in
section 1561.10 of the Revised
Code, as amended,
both of the following apply: (a) A person, such as an owner,
operator, lessee, or agent of a mine or the authorized
representative of the workers of a mine, who has an interest
that is or may be adversely affected by a decision of the chief
that involves mine health and safety may appeal it, not later
than ten days after receiving notice of the decision, to the
Reclamation Commission in accordance with section 1513.13 of the
Revised
Code by filing a copy of the
Chief's written decision with the Commission. (b) An owner, operator, lessee, or
agent of a mine who appeals a decision of the Chief that
involves mine health and safety to the Reclamation commission in
accordance with division
(b)(2)(a)
of this section, upon filing the appeal, shall provide
written notification of the appeal to the authorized
representative of the affected workers of the mine involved.
The authorized representative of the mine workers may intervene
and participate as a party to the appeal by filing a written
notice of intervention with the commission not later than ten
days following receipt of notification of the
appeal. (C) The board shall provide written notice of
the time and place of a hearing not less than five days prior
to the hearing. The hearing shall be of record. (D) The board shall conduct hearings and render decisions in a
timely fashion and shall hear expedited appeals as required
under section 1509.08 of the Revised Code. Whenever the Board conducts a hearing, it shall prepare
a report setting forth its findings of fact and conclusions of
law and shall mail a copy of the report by certified mail to the
parties. A party, not later than fourteen days after receipt of
the report, may serve and file written objections to the board's
report with the secretary of the board. Objections shall be
specific and state with particularity the grounds for them.
Upon consideration of the objections, the board may adopt,
reject, or modify the report or hear additional evidence. (E) The board shall
affirm a decision of the chief unless the board determines
that it is arbitrary, capricious, or otherwise inconsistent with
law; in that case the board shall
vacate the decision of the chief and may remand it to the chief for further
proceedings
that the board may direct. (F) The chairperson of
the board, under conditions that the chairperson prescribes, may
grant temporary relief that the chairperson considers appropriate
pending final determination of an appeal if all of the following
conditions are met: (1) All parties to the appeal have been
notified and given an opportunity for a hearing to be held
on the request for temporary relief. (2) The person requesting relief shows that there is a
substantial likelihood that the person will prevail on the
merits. (3) The relief will not adversely affect the health or
safety of miners. The chairperson shall issue a decision
expeditiously and promptly provide written notification of the decision to all
parties to the appeal. Any party to an appeal filed with the board who is
aggrieved or adversely affected by a decision of the chairperson
to grant or deny temporary relief under this section may appeal
that decision to the board. The board may confine its review to
the record developed at the hearing before the
chairperson. The appeal shall be filed with the board not later than
thirty days after the chairperson issues the decision on the
request for temporary relief. The board shall issue a decision
as expeditiously as possible. The board shall affirm the decision of the
chairperson granting or denying temporary relief
unless it determines that the decision is arbitrary, capricious,
or otherwise inconsistent with law. Sec. 1561.54. For the purpose of participation in an
adjudicatory hearing conducted under section 1561.53 of the Revised Code, the chief of the
division of mines and reclamation or the mine examining board may require
the attendance of witnesses and the production of books,
records, and papers and may, and at the request of any party shall,
issue subpoenas for witnesses or subpoenas duces tecum to
compel the production of any books, records, papers, or other
material relevant to the inquiry, directed to the sheriff of each county
where the witnesses or materials are found,
which subpoenas shall be served and returned in the same
manner that subpoenas issued by courts of common pleas are served
and returned. The fees and mileage of sheriffs and witnesses
shall be the same as those allowed by the court of common pleas
in criminal cases. In cases of disobedience or neglect of a subpoena served
on a person or the refusal of a witness to
testify on any matter regarding which the witness lawfully
may be interrogated, the court of common pleas of the county in
which the disobedience, neglect, or refusal occurs, or any judge
of that court, on application of the chief or the board or any member
of the board, shall compel obedience by attachment procedures for
contempt as in the case of disobedience of the requirements of a
subpoena issued from the court or a refusal to testify
in it. A witness at any hearing shall testify under oath or
affirmation, which the chief or any member of the board shall
administer. Sec. 1561.55. Any party aggrieved or adversely affected
by a decision of the mine examining board may appeal to the
court of appeals of Franklin
county or the court of appeals of the county in which the
activity addressed by the decision of the board occurred, is
occurring, or will occur. The appeal shall be filed not later
than thirty days after issuance of the decision of the board.
The court, upon motion, may grant any temporary relief that it
considers appropriate pending final disposition of the appeal if
all of the following conditions are met: (A) All parties to the
appeal have been notified and given an opportunity to be heard
on the request for temporary relief. (B) The person
requesting the relief shows that there is substantial likelihood
that the person will prevail on the merits. (C) The relief will not
adversely affect the health or safety of miners. The court shall affirm the decision of the board unless
the court determines that it is arbitrary, capricious, or
otherwise inconsistent with law, in which case the court shall
vacate the decision and remand it to the board for any further
proceedings that it directs. Sec. 1563.13. When a deputy mine inspector considers that
the ways and means of egress in any underground mine from the
interior working places to the surface are inadequate as a safe
and ready means of escape in case of emergency, from danger of
fire at any point, or any other cause that may result in the
entombment of persons working therein in the mine, he
the deputy mine inspector shall give notice in
writing to the owner, lessee, or agent of such the mine of the
particular in which he the deputy mine inspector considers
such the conditions dangerous,
recommending such any changes as that the
conditions require, and shall forthwith shall mail a copy of
his the deputy mine inspector's
recommendations to the chief of the
division of mines and reclamation. Upon receipt of such the
recommendations, the
chief shall forthwith shall make a finding thereon
concerning them and mail a copy to
the operator of such the mine, and to the deputy mine
inspector. A
copy of such the finding of the chief shall be posted upon the
bulletin board at the time. The operator of such the mine, or the authorized representative
of the workers of such the mine, may within ten days
may appeal to the
mine examining board for a review and redetermination of the
finding of the chief in such the matter in accordance with
section 1561.53 of the Revised Code. A copy of the findings decision of
the board shall be mailed as required by this section for the
mailing of the finding by the chief on the deputy mine
inspector's report. No operator of a mine shall refuse or neglect to comply
with this section. Sec. 1565.15. (A) As used in this section,: (1) "EMT-basic,"
"EMT-I," "paramedic," and
"emergency medical service organization" have the same
meanings as in section 4765.01 of the Revised Code. (2) "First aid
provider" includes an
EMT-basic,
an EMT-I,
a paramedic, or a supervisory employee at a surface coal mine who has
satisfied the
training requirements established in division (D)(1) of this
section. (B) The operator of an underground coal mine where twenty or
more persons are employed on a shift, including all persons
working at different locations at the mine within a ten-mile
radius, shall provide at least one
EMT-basic or EMT-I on duty
at the underground coal mine whenever employees at the mine are
actively engaged in the extraction, production, or preparation of
coal. The
operator shall provide EMTs-basic or
EMTs-I on duty at the underground coal mine at such
times and in numbers
sufficient to
ensure that no miner works in a mine location that cannot be reached within a
reasonable time by an EMT-basic or an EMT-I.
EMTs-basic and EMTs-I shall be employed on their regular
coal mining duties at locations convenient for quick response to
emergencies, in order to
provide emergency medical services inside the underground coal mine and
transportation of
injured or sick employees to the entrance of the mine. The operator shall
provide for the services of at least one emergency medical service
organization to be available on call to reach the
entrance of the underground coal mine within thirty minutes, at
any time that
employees are engaged in the extraction, production, or
preparation of coal in order to provide emergency medical services and
transportation to a hospital. The operator shall make available to
EMTs-basic and EMTs-I all of the equipment for first
aid and
emergency medical services that is necessary for such those
personnel to function
and to comply with the rules regulations pertaining to first aid
and emergency medical
services that are promulgated adopted under the "Federal
Coal Mine Safety and Health and Safety
Act of 1969 1977," 83 91 Stat.
742 1290, 30 U.S.C.A. 801, and amendments thereto, or the
"Metal and Nonmetallic Mine Safety Act," 80 Stat. 772, 30 U.S.C.A. 721, and
amendments thereto to it The operator of the underground coal
mine shall install telephone
service or
equivalent facilities that enable two-way voice communication between the
EMTs-basic or EMTs-I in the mine and the emergency medical
service organization outside the mine that provides emergency medical services
on a regular basis. (C) The operator of a strip surface coal mine where
twenty-five
or more persons are
employed on a shift, including all persons working at different locations of
the mine within a ten-mile radius, shall provide at least one
EMT-basic or EMT-I first aid provider on
duty at the mine whenever employees at
the mine are actively engaged in the extraction, production, or preparation of
coal or minerals. The operator shall provide EMTs-basic
orEMTs-I first aid providers on duty at the surface
coal mine at
such times and in numbers sufficient to
ensure that no miner works in a mine location that cannot be reached within a
reasonable time by an EMT-basic or anEMT-I. EMTs-basic and EMTs-I a first aid
provider. First aid providers shall be employed on their regular
coal mining
duties at locations convenient for quick
response to emergencies, in order to provide emergency medical
services
and
transportation of injured or sick employees to the entrance of
the surface coal mine. The
operator shall provide for the services of at least one emergency
medical
service organization to be available on call to reach the
entrance of the surface coal mine
within
thirty minutes, at any time that employees are engaged in the
extraction, production, or preparation of coal, in order to
provide
emergency medical services and transportation to a hospital. The operator shall make available to first aid providers all of
the equipment for first aid and emergency medical services that is
necessary for those personnel to function and to comply with the
regulations pertaining to first aid and emergency medical services
that are adopted under the
"Federal
Mine
Safety and
Health Act of 1977,"
91 Stat. 1290, 30
U.S.C.A.
801, and amendments to it, including, without limitation, a
portable oxygen cylinder with a medical regulator and oxygen
delivery system. (D) The operator of a strip mine where fewer than
twenty-five persons are employed on a shift, including all
persons working at different locations of the mine within a
ten-mile radius, or where twenty-five or more persons are
employed on a shift at different locations of the mine that are
dispersed by distances greater than ten miles, shall provide for
the services of emergency medical service organizations to be
available on call to reach the mine where any employees are
working within thirty minutes to provide emergency medical
services and transportation to a hospital. The chief of the
division of mines and reclamation may grant a variance from this requirement,
if
upon application, the operator shows that such emergency medical
service organizations are not available and that he
provides for
the services of three EMTs-basic,EMTs-I, or paramedics who are located, when on call, within
ten miles
of the locations where employees are mining, or such other reasonable distance
as the chief may approve. (E)(1) A supervisory employee at a surface coal
mine shall be
considered
to be a first aid provider for the purposes of this section if the
employee has received from an instructor approved by the
Chief of the Division of Mines and Reclamation ten hours of
initial first aid training as a selected supervisory employee under 30
C.F.R. 77.1703 and receives five hours of
refresher
first aid training as a selected supervisory employee under 30
C.F.R.
77.1705 in each subsequent calendar year.
(2) Each miner employed at a surface coal mine who is not a first
aid
provider shall receive from an instructor approved by the Chief three
hours of initial first aid training and two hours of refresher first aid
training in each subsequent calendar year. (3) The training received in accordance with division (D) of
this section shall consist of a course of instruction established
in the manual issued by the Mine Safety and Health
Administration in the United States department of labor
entitled "First
Aid,
A
Bureau of
Mines Instruction Manual" or its
successor or any other curriculum approved by the Chief. The training shall
be included in the hours of instruction provided to
miners in accordance with training requirements established under
30
C.F.R.
Part 48, Subpart (B), as
amended, and 30 C.F.R. Part 77,
as amended. (E) Each operator of a surface coal mine shall establish,
keep
current, and make available for inspection an emergency medical plan that
includes the telephone numbers of the Division of
Mines and Reclamation and of an emergency medical services
organization the services of which are required to be retained under
division (C) of this section. The Chief shall adopt rules in
accordance with Chapter 119. of the Revised Code
that establish
any additional information required to be included in an emergency
medical plan. (F) Each operator of an underground coal mine or strip
surface coal mine
shall provide or contract to obtain emergency medical services
training or first aid training, as applicable, at the
operator's expense, that is sufficient to train and
maintain the certification of the number of employees necessary
to comply with division (B) of this section and that is
sufficient to train employees as required under division (D) of this
section and to comply with division (C) of this section. (F)(G) The division of mines and reclamation may
provide emergency medical
services training for coal mine employees by operating an emergency
medical services training program accredited under section
4765.17 of the Revised Code or by contracting with the operator
of an emergency medical services training program accredited
under that section to provide such that training. The division
of
mines and reclamation may charge coal mine operators a uniform part
of the unit
cost per trainee.
(G)(H) No coal mine operator shall violate or fail to
comply with this
section.
Sec. 4909.15. (A) The public utilities commission, when
fixing and determining just and reasonable rates, fares, tolls,
rentals, and charges, shall determine: (1) The valuation as of the date certain of the property
of the public utility used and useful in rendering the public
utility service for which rates are to be fixed and determined.
The valuation so determined shall be the total value as set forth
in division (J) of section 4909.05 of the Revised Code, and a
reasonable allowance for materials and supplies and cash working
capital, as determined by the commission. The commission, in its discretion, may include in the
valuation a reasonable allowance for construction work in
progress but, in no event, may such an allowance be made by the
commission until it has determined that the particular
construction project is at least seventy-five per cent complete. In determining the percentage completion of a particular
construction project, the commission shall consider, among other
relevant criteria, the per cent of time elapsed in construction;
the per cent of construction funds, excluding allowance for funds
used during construction, expended, or obligated to such
construction funds budgeted where all such funds are adjusted to
reflect current purchasing power; and any physical inspection
performed by or on behalf of any party, including the
commission's staff. A reasonable allowance for construction work in progress
shall
not exceed ten per cent of the total valuation as stated in this
division, not including such allowance for construction work in
progress. Where the commission permits an allowance for construction
work in progress, the dollar value of the project or portion
thereof included in the valuation as construction work in
progress shall not be included in the valuation as plant in
service until such time as the total revenue effect of the
construction work in progress allowance is offset by the total
revenue effect of the plant in service exclusion. Carrying
charges calculated in a manner similar to allowance for funds
used during construction shall accrue on that portion of the
project in service but not reflected in rates as plant in
service, and such accrued carrying charges shall be included in
the valuation of the property at the conclusion of the offset
period for purposes of division (J) of section 4909.05 of the
Revised Code. From and after April 10, 1985, no allowance for
construction work in progress as it relates to a particular
construction project shall be reflected in rates for a period
exceeding forty-eight consecutive months commencing on the date
the initial rates reflecting such allowance become effective,
except as otherwise provided in this division. The applicable maximum period in rates for an allowance for
construction work in progress as it relates to a particular
construction project shall be tolled if, and to the extent, a
delay in the in-service date of the project is caused by the
action or inaction of any federal, state, county, or municipal
agency having jurisdiction, where such action or inaction relates
to a change in a rule, standard, or approval of such agency, and
where such action or inaction is not the result of the failure of
the utility to reasonably endeavor to comply with any rule,
standard, or approval prior to such change. In the event that such period expires before the project
goes into service, the commission shall exclude, from
the date of
expiration, the allowance for the project as construction
work in progress from rates, except that the commission may
extend the expiration date up to twelve months for good cause
shown. In the event that a utility has permanently canceled,
abandoned, or terminated construction of a project for which it
was previously permitted a construction work in progress
allowance, the commission immediately shall exclude the
allowance
for the project from the valuation. In the event that a construction work in progress project
previously included in the valuation is removed from the
valuation pursuant to this division, any revenues collected by
the utility from its customers after April 10, 1985, that
resulted from such prior inclusion shall be offset against future
revenues over the same period of time as the project was included
in the valuation as construction work in progress. The total
revenue effect of such offset shall not exceed the total revenues
previously collected. In no event shall the total revenue effect of any offset or
offsets provided under division (A)(1) of this
section exceed the total revenue effect of any
construction work in progress allowance. (2) A fair and reasonable rate of return to the utility on
the valuation as determined in division (A)(1) of this section; (3) The dollar annual return to which the utility is
entitled by applying the fair and reasonable rate of return as
determined under division (A)(2) of this section to the valuation
of the utility determined under division (A)(1) of this section; (4) The cost to the utility of rendering the public
utility service for the test period less the total of any
interest on cash or credit refunds paid, pursuant to section
4909.42 of the Revised Code, by the utility during the test
period. (a) Federal, state, and local taxes imposed on or
measured by net income may, in the discretion of the commission,
be computed by the normalization method of accounting, provided
the utility maintains accounting reserves that reflect
differences between taxes actually payable and taxes on a
normalized basis, provided that no determination as to the
treatment in the rate-making process of such taxes
shall be made
that will result in loss of any tax depreciation or other tax
benefit to which the utility would otherwise be entitled, and
further provided that such tax benefit as redounds to the utility
as a result of such a computation may not be retained by the
company, used to fund any dividend or distribution, or utilized
for any purpose other than the defrayal of the operating expenses
of the utility and the defrayal of the expenses of the utility in
connection with construction work. (b) The amount of any tax credits granted to an electric
light company under section 5733.39 5727.391 of the Revised
Code for Ohio coal burned prior to January 1,
2000, shall not be retained by the company, used to fund any dividend or
distribution, or utilized for any purposes other than the
defrayal of the allowable operating expenses of the company and
the defrayal of the allowable expenses of the company in
connection with the installation, acquisition, construction, or
use of a compliance facility. The amount of the tax credits
granted to an electric light company under that section for Ohio
coal burned prior to January 1, 2000, shall be
returned to its customers within three years after initially
claiming the credit through an offset to the company's rates or
fuel component, as determined by the commission, as set forth in
schedules filed by the company under section 4905.30 of the
Revised Code. As used in division (A)(4)(c) of this section,
"compliance facility" has the same meaning as in section
5733.39 5727.391
of the Revised Code. (B) The commission shall compute the
gross annual revenues to which the utility is entitled by adding
the dollar amount of return under division (A)(3) of this section
to the cost of rendering the public utility service for the test
period under division (A)(4) of this section. (C) The test period, unless otherwise ordered by the
commission, shall be the twelve-month period
beginning six months prior to the date the application is filed
and ending six months subsequent to that date. In no event shall
the test period end more than nine months subsequent to the date
the application is filed. The revenues and expenses of the
utility shall be determined during the test period. The date
certain shall be not later than the date of filing. (D) When the commission is of the
opinion, after hearing and after making the determinations under
divisions (A) and (B) of this section, that any rate, fare,
charge, toll, rental, schedule, classification, or service, or
any joint rate, fare, charge, toll, rental, schedule,
classification, or service rendered, charged, demanded, exacted,
or proposed to be rendered, charged, demanded, or exacted, is, or
will be, unjust, unreasonable, unjustly discriminatory, unjustly
preferential, or in violation of law, that the service is, or
will be, inadequate, or that the maximum rates, charges, tolls,
or rentals chargeable by any such public utility are insufficient
to yield reasonable compensation for the service rendered, and
are unjust and unreasonable, the commission shall: (1) With due regard among other things to the value of all
property of the public utility actually used and useful for the
convenience of the public as determined under division (A)(1) of
this section, excluding from such value the value of any
franchise or right to own, operate, or enjoy the same in excess
of the amount, exclusive of any tax or annual charge, actually
paid to any political subdivision of the state or county, as the
consideration for the grant of such franchise or right, and
excluding any value added to such property by reason of a
monopoly or merger, with due regard in determining the dollar
annual return under division (A)(3) of this section to the
necessity of making reservation out of the income for surplus,
depreciation, and contingencies, and; (2) With due regard to all such other matters as are
proper, according to the facts in each case, (a) Including a fair and reasonable rate of return
determined by the commission with reference to a cost of debt
equal to the actual embedded cost of debt of such public utility, (b) But not including the portion of any periodic rental
or use payments representing that cost of property that is
included in the valuation report under divisions (F) and (G) of
section 4909.05 of the Revised Code, fix and determine the just
and reasonable rate, fare, charge, toll, rental, or service to be
rendered, charged, demanded, exacted, or collected for the
performance or rendition of the service that will provide the
public utility the allowable gross annual revenues under division
(B) of this section, and order such just and reasonable rate,
fare, charge, toll, rental, or service to be substituted for the
existing one. After such determination and order no change in
the rate, fare, toll, charge, rental, schedule, classification,
or service shall be made, rendered, charged, demanded, exacted,
or changed by such public utility without the order of the
commission, and any other rate, fare, toll, charge, rental,
classification, or service is prohibited. (E) Upon application of any person or any public utility,
and after notice to the parties in interest and opportunity to be
heard as provided in Chapters 4901., 4903., 4905., 4907., 4909.,
4921., and 4923. of the Revised Code for other hearings, has been
given, the commission may rescind, alter, or amend an order
fixing any rate, fare, toll, charge, rental, classification, or
service, or any other order made by the commission. Certified
copies of such orders shall be served and take effect as provided
for original orders. Sec. 5727.391. (A) As used in this section: (1) "Compliance facility" has the same meaning as in
section 4905.01 of the Revised Code. "Compliance facility" also
includes both of the following: (a) A flue gas desulfurization system that is connected to
a coal-fired electric generating unit and that either was placed
in service prior to the effective date of this section
July 10, 1991, or construction of which was commenced
prior to the effective that date of this section; (b) Facilities or equipment that is acquired, constructed,
or installed, and used, at a coal-fired electric generating unit
primarily for the purpose of handling the byproducts produced by
a compliance facility or other coal combustion byproducts
produced by the generating unit in or to which the compliance
facility is incorporated or connected. (2) "Ohio coal" has the same meaning as in section 4913.01
of the Revised Code. (B) An electric company shall be allowed a credit against
the tax computed under section 5727.38 of the Revised Code for
using Ohio coal in any of its coal-fired electric generating
units. The credit shall be claimed in the company's annual
statement required under division (A) of section 5727.31 of the
Revised Code at the rate of one dollar three dollars per ton of
Ohio coal
burned, during the same twelve-month period used in determining
gross receipts and on or after January 1, 2000, in a
coal-fired electric generating unit under
all both of the following conditions: (1) The coal-fired electric generating unit is owned by
the company claiming the credit or leased by that company under a
sale and leaseback transaction; (2) A compliance facility is attached to, incorporated in,
or used in conjunction with the coal-fired generating unit; (3) Either of the following applies:
(a) In the case of a coal-fired electric generating unit
that burns coal in combination with another fuel for the purpose
of complying with Phase I acid rain control requirements under
Title IV of the "Clean Air Act Amendments of 1990," 104 Stat.
2584, 42 U.S.C.A. 7651, at least eighty per cent of the heat
input during the period is from Ohio coal;
(b) In the case of any other coal-fired electric
generating unit, at least ninety per cent of the heat input
during the period is from Ohio coal.
(C) If the credit allowed under this section exceeds the
total taxes due for the current year, the tax commissioner shall
credit the excess against the taxes due for succeeding years
until the full amount of the credit is granted. The sum of the credits allowed for coal burned in each
coal-fired electric generating unit shall not exceed twenty per
cent of the cost of the compliance facility attached to,
incorporated in, or used in conjunction with the unit. If a
compliance facility is used in conjunction with more than one
generating unit, the tax commissioner shall prorate its cost
among the units.
(D) The director of environmental protection, upon the request
of the tax commissioner, shall certify whether a facility is a
compliance facility. In the case of a compliance facility owned
by an electric company, the public utilities commission shall
certify to the tax commissioner the cost of the facility as of
the date it was placed in service. In the case of a compliance
facility owned by a person other than an electric company, the
tax commissioner shall determine the cost of the facility as of
the date it was placed in service; if the owner of such a
facility fails to furnish the information necessary to make that
determination, no credit shall be allowed. Sec. 5733.39. (A) As
used in this section: (1) "Compliance facility" means property that is designed,
constructed, or installed, and used, at a coal-fired electric
generating facility for the primary purpose of complying with
Phase I acid rain control requirements under Title
IV of the
"Clean Air Act Amendments of 1990," 104
Stat. 2584, 42 U.S.C.A.
7651, and that controls or limits emissions of sulfur or nitrogen
compounds resulting from the combustion of coal through the
removal or reduction of those compounds before, during, or after
the combustion of the coal, but before the combustion products
are emitted into the atmosphere. "Compliance facility" also
includes any of the following: (a) A facility that removes sulfur compounds from coal
before the combustion of the coal and that is located off the
premises of the electric generating facility where the coal
processed by the compliance facility is burned; (b) Modifications to the electric generating facility
where the compliance facility is constructed or installed that
are necessary to accommodate the construction or installation, and
operation, of the compliance facility; (c) A byproduct disposal facility, as defined in section
3734.051 of the Revised Code, that exclusively disposes of wastes
produced by the compliance facility and other coal combustion
byproducts produced by the generating unit in or to which the
compliance facility is incorporated or connected regardless of
whether the byproduct disposal facility is located on the same
premises as the compliance facility or generating unit that
produces the wastes disposed of at the facility; (d) Facilities or equipment that is acquired, constructed,
or installed, and used, at a coal-fired electric generating
facility exclusively for the purpose of handling the byproducts
produced by the compliance facility or other coal combustion
byproducts produced by the generating unit in or to which the
compliance facility is incorporated or connected; (e) A flue gas desulfurization system that is
connected to a coal-fired electric generating unit and that
either was placed in service prior to July 10, 1991,
or construction of which was commenced prior to that date; (f) Facilities or equipment acquired, constructed,
or installed, and used, at a coal-fired electric generating unit
primarily for the purpose of handling the byproducts produced by
a compliance facility or other coal combustion byproducts
produced by the generating unit in or to which the compliance
facility is incorporated or connected. (2) "Ohio coal" has the same meaning as in section
4913.01 of the Revised
Code. (3) "Sale and leaseback transaction" has the same meaning
as in section 5727.01 of the
Revised
Code. (B) An electric company shall be allowed a
nonrefundable
credit against the tax imposed by section 5733.06 of the
Revised
Code for
Ohio coal used in any of its
coal-fired electric generating units after April 30, 2001, but before
January 1, 2005. Section
5733.057 of the
Revised
Code shall apply when
calculating the credit allowed by this section. The credit
shall be claimed at the rate of three dollars per ton of
Ohio coal burned in a
coal-fired electric generating unit during the taxable year
ending immediately preceding the tax year. The credit is
allowed only if both of the following conditions are met during
such taxable year: (1) The coal-fired electric generating unit is owned and
used by the company claiming the credit or leased and used by
that company under a sale and leaseback transaction. (2) A compliance facility is attached to, incorporated
in, or used in conjunction with the coal-fired generating
unit. (C) The credit shall be
claimed in the order required under section 5733.98 of the
Revised Code.
The taxpayer may carry forward any credit amount in excess of
its tax due after allowing for any other credits that precede the
credit allowed under this section in the order required under section
5733.98 of the Revised Code. The excess
credit may be carried forward
for three years following the tax year for which it is
claimed under this section. (D) The director of
environmental protection, upon the request of the tax
commissioner, shall certify whether a facility is a compliance
facility. In the case of a compliance facility owned by an
electric company, the public utilities commission shall certify
to the tax commissioner the cost of the facility as of the date
it was placed in service. In the case of a compliance facility
owned by a person other than an electric company, the tax
commissioner shall determine the cost of the facility as of the
date it was placed in service. If the owner of such a facility
fails to furnish the information necessary to make that
determination, no credit shall be allowed. Sec. 6111.044. Upon receipt of an application for an
injection well drilling permit, an injection well operating
permit, a renewal of an injection well operating permit, or a
modification of an injection well drilling permit, operating
permit, or renewal of an operating permit, the director of
environmental protection shall determine whether the application
is complete and demonstrates that the activities for which the
permit, renewal permit, or modification is requested will comply
with the "Federal Water Pollution Control Act" and regulations
adopted under it; the "Safe Drinking Water Act," 88 Stat. 1661
(1974), 42 U.S.C.A. 300(f), as amended, and regulations adopted
under it; and this chapter and the rules adopted under it. If
the application demonstrates that the proposed activities will
not comply or will pose an unreasonable risk of inducing seismic
activity, inducing geologic fracturing, or contamination of an
underground source of drinking water, he the director shall deny
the
application. If the application does not make the required
demonstrations, he the director shall return it to the applicant
with an
indication of those matters about which a required demonstration
was not made. If he the director determines that the
application makes the
required demonstrations, he the director shall transmit copies
of the
application and all of the accompanying maps, data, samples, and
information to the chief of the division of oil and gas, the
chief of the division of geological survey, the chief of the
division of water, and, if the well is or is to be located in a
coal-bearing township, the chief of the division of mines and reclamation
in the department of natural resources. The chief of the division of geological survey shall
comment upon the application if he the chief determines that the
proposed
well or injection will present an unreasonable risk of loss or
damage to valuable mineral resources. If the chief submits
comments on the application, those comments shall be accompanied
by an evaluation of the geological factors upon which the
comments are based, including fractures, faults, earthquake
potential, and the porosity and permeability of the injection
zone and confining zone, and by the documentation supporting the
evaluation. The director shall take into consideration the
chief's comments, and the accompanying evaluation of geologic
factors and supporting documentation, when considering the
application. The director shall provide written notice to the
chief of his the director's decision on the application and, if
the chief's
comments are not included in the permit, renewal permit, or
modification, of the director's rationale for not including them. The chief of the division of oil and gas shall comment upon
the application if he the chief determines that the proposed
well or
injection will present an unreasonable risk that waste or
contamination of recoverable oil or gas in the earth will occur.
If the chief submits comments on the application, those comments
shall be accompanied by an evaluation of the oil or gas reserves
that, in the best professional judgment of the chief, are
recoverable and will be adversely affected by the proposed well
or injection, and by the documentation supporting the evaluation.
The director shall take into consideration the chief's comments,
and the accompanying evaluation and supporting documentation,
when considering the application. The director shall provide
written notice to the chief of his the director's decision on
the application
and, if the chief's comments are not included in the permit,
renewal permit, or modification, of the director's rationale for
not including them. The chief of the division of water shall assist the
director in determining whether all underground sources of
drinking water in the area of review of the proposed well or
injection have been identified and correctly delineated in the
application. If the application fails to identify or correctly
delineate any such an underground source of drinking water, the
chief shall provide written notice of that fact to the director. The chief of the division of mines and reclamation shall review the
application as follows: If the application concerns the drilling or conversion of a
well or the injection into a well which that is not or is not to
be located within five thousand feet of the excavation and workings
of a mine, the chief of the division of mines
and reclamation shall note upon the
application that it has been examined by the division of mines and
reclamation,
retain a copy of the application and map, and immediately return
a copy of the application to the director. If the application concerns the drilling or conversion of a
well or the injection into a well which that is or is to be
located
within five thousand feet, but more than five hundred feet from
the surface excavations and workings of a mine, the chief of the
division of mines and reclamation shall
immediately shall notify the owner or lessee of
the mine that the application has been filed and send to the
owner or lessee a copy of the map accompanying the application
setting forth the location of the well. The chief of the
division of mines and reclamation shall note on the application that the
notice
has been sent to the owner or lessee of the mine, retain a copy
of the application and map, and immediately return a copy of the
application to the director with his the chief's notation
thereon on it. If the application concerns the drilling or conversion of a
well or the injection into a well which that is or is to be
located
within five thousand feet of the underground excavations and
workings of a mine or within five hundred feet of the surface
excavations and workings of a mine,
the chief of the division of mines and reclamation shall immediately
shall notify the owner or lessee of the mine
that the application has been filed and send to the owner or
lessee a copy of the map accompanying the application setting
forth the location of the well. If the owner or lessee objects
to the application, he the owner or lessee shall notify the
chief of the division of mines and
reclamation of the objection, giving the reasons therefor, within six
days after the receipt of the notice. If the chief of the
division of mines and reclamation receives no
objections from the owner or lessee
of the mine within ten days after the receipt of the notice by
the owner or lessee, or if in the opinion of the chief of the
division of mines and reclamation the objections offered by the owner or
lessee
are not sufficiently well-founded, he the chief shall retain a
copy of the
application and map and return a copy of the application to the
director with any applicable notes concerning it. If the chief of the division of mines and reclamation receives an objection
from the owner or lessee of the mine as to the application,
within ten days after receipt of the notice by the owner or
lessee, and if in the opinion of the chief the objection is
well-founded, he the chief shall disapprove the application and
immediately
return it to the director together with his the chief's reasons
for the
disapproval. The director shall promptly shall notify the
applicant
for the permit, renewal permit, or modification, of the
disapproval. The applicant may appeal the disapproval of the
application by the chief of the division of mines and reclamation to the
mine examining board created under section
1561.10 of the Revised
Code, and the board shall hear the appeal in accordance with section
1561.53 of the Revised Code. The appeal shall be filed within thirty days from the date
the applicant receives notice of the disapproval. No comments
concerning or disapproval of an application shall be delayed by
the chief of the division of mines and reclamation for more than fifteen days
from the date of sending of notice to the mine owner or lessee as
required by this section. The director shall not approve an application for an
injection well drilling permit, an injection well operating
permit, a renewal of an injection well operating permit, or a
modification of an injection well drilling permit, operating
permit, or renewal of an operating permit for a well which that
is or is to be located within three hundred feet of any opening of any
mine used as a means of ingress, egress, or ventilation for
persons employed therein in the mine, nor within one hundred
feet of any building or flammable structure connected therewith with
the mine and actually used as a part of the operating equipment of the
mine, unless the
chief of the division of mines and reclamation determines that life or
property
will not be endangered by drilling and operating the well in that
location. Upon review by the chief of the division of oil and gas,
the chief of the division of geological survey, and the chief of
the division of water, and if the chief
of the division of mines and reclamation
has not disapproved the application, the director shall issue a
permit, renewal permit, or modification with such any terms and
conditions as that may be necessary to comply with the
"Federal Water
Pollution Control Act" and regulations adopted under it; the
"Safe Drinking Water Act," 88 Stat. 1661 (1974), 42 U.S.C.A.
300(f) as amended, and regulations adopted under it; and this
chapter and the rules adopted under it. The director shall not
issue a permit, renewal permit, or modification to an applicant
if the applicant or persons associated with the applicant have
engaged in or are engaging in a substantial violation of this
chapter that is endangering or may endanger human health or the
environment or if, in the case of an applicant for an injection
well drilling permit, the applicant, at the time of applying for
the permit, did not hold an injection well operating permit or
renewal of an injection well drilling permit and failed to
demonstrate sufficient expertise and competency to operate the
well in compliance with the applicable provisions of this
chapter. If the director receives a disapproval from the chief of
the division of mines and reclamation
regarding an application for an injection
well drilling or operating permit, renewal permit, or
modification, if required, he the director shall issue an order
denying the
application. The director need not issue a proposed action under section
3745.07 of the Revised Code or hold an adjudication hearing under
that section and Chapter 119. of the Revised Code before issuing
or denying a permit, renewal permit, or modification of a permit
or renewal permit. Before issuing or renewing a permit to drill
or operate a class I injection well or a modification thereof of
it, the director shall propose the permit, renewal permit, or
modification in draft form and shall hold a public hearing to
receive public comment on the draft permit, renewal permit, or
modification. At least fifteen days before the public hearing on
a draft permit, renewal permit, or modification, the director
shall publish notice of the date, time, and location of the
public hearing in at least one newspaper of general circulation
serving the area where the well is or is to be located. The
proposing of such a draft permit, renewal permit, or modification
does not constitute the issuance of a proposed action under
section 3745.07 of the Revised Code, and the holding of the
public hearing on such a draft permit, renewal permit, or
modification does not constitute the holding of an adjudication
hearing under that section and Chapter 119. of the Revised Code.
Appeals of orders other than orders of the
chief of the division of mines and reclamation shall be taken under sections
3745.04 to 3745.08 of the
Revised Code. The director may order that an injection well drilling
permit or an injection well operating permit or renewal permit be
suspended and that activities thereunder under it cease if he
determines after determining that those activities are occurring in
violation of
law, rule,
order, or term or condition of the permit. Upon service of a
copy of the order upon the permit holder, his or the permit
holder's authorized agent,
or assignee, the permit and activities thereunder under it shall
be immediately suspended immediately without prior hearing and
shall remain
suspended until the violation is corrected and the order of
suspension is lifted. If a violation is the second within a
one-year period, the director, after a hearing, may revoke the
permit. The director may order that an injection well drilling
permit or an injection well operating permit or renewal permit be
suspended and that activities thereunder under it cease if
he the director has
reasonable cause to believe that the permit would not have been
issued if the information available at the time of suspension had
been available at the time a determination was made by one of the
agencies acting under authority of this section. Upon service of
a copy of the order upon the permit holder, his or the permit
holder's authorized agent,
or assignee, the permit and activities thereunder under it shall
be immediately suspended immediately without prior hearing, but
a permit may not
be suspended for that reason without prior hearing unless
immediate suspension is necessary to prevent waste or
contamination of oil or gas, comply with the "Federal Water
Pollution Control Act" and regulations adopted under it; the
"Safe Drinking Water Act," 88 Stat. 1661 (1974), 42 U.S.C.A.
300(f), as amended, and regulations adopted under it; and this
chapter and the rules adopted under it, or prevent damage to
valuable mineral resources, prevent contamination of an
underground source of drinking water, or prevent danger to human
life or health. If after a hearing the director determines that
the permit would not have been issued if the information
available at the time of the hearing had been available at the
time a determination was made by one of the agencies acting under
authority of this section, he the director shall revoke the
permit. When a permit has been revoked, the permit holder or other
person responsible therefor shall for it immediately
shall plug the well in the manner required by the director. The director may issue orders to prevent or require
cessation of violations of this section, section 6111.043,
6111.045, 6111.046, or 6111.047 of the Revised Code, rules
adopted thereunder under any of those sections, and terms or
conditions of permits issued
thereunder under any of them. Such The orders may
require the elimination of
conditions caused by the violation. SECTION 2 . That existing sections 1509.08, 1513.13, 1561.10,
1561.35, 1561.51, 1563.13, 1565.15, 5727.391, and 6111.044 and sections
1561.41,
1561.42, 1561.43, 1561.44, 1565.17, 1565.18, 1565.19, 1565.20, 1565.21,
1565.22, 1565.23, 1567.28, 1567.29, 1567.37, 1567.56, 1567.64, and 5733.39,
and section 4909.15 of the Revised Code as amended by Am. Sub. S.B. 3 of the
123rd General Assembly are hereby repealed.
SECTION 3 . The enactment by this act of amendments to
section 1561.10 of
the Revised Code regarding the qualifications of members of the
Mine Examining Board is not intended to require the replacement
of members of the board on the effective date of this act, but
to establish requirements for filling vacancies occurring in the
board's membership on and after the effective date of this act.
SECTION 4 . (A) The amendment by this act
of section 5727.391 of the Revised Code increasing the per-ton
credit for burning Ohio coal applies to
Ohio coal burned on or
after January 1, 2000, and on or before April 30, 2001. The
tax credit claimed for the twelve-month period ending April 30,
2000, shall be adjusted so that the credit equals one dollar per ton for
Ohio coal burned on or before December 31, 1999, of that
twelve-month period, and three dollars per ton
for Ohio coal burned on or after January 1, 2000.
(B) The amendment of section 5727.391 of the Revised Code and the
repeal of the existing version of that section by this act does
not affect the delayed repeal of that section by Section 8 of Am.
Sub. S.B. 3 of the 123rd General Assembly. Section 5727.391 of
the Revised Code, as amended by this act, shall be repealed as
provided in Section 8 of Am. Sub. S.B. 3 of the 123rd General
Assembly. SECTION 5 . The repeal and reenactment by this act of section
5733.39 of the Revised Code takes effect January 1, 2002, and
applies to Ohio coal burned after April 30, 2001, but before January 1, 2005,
notwithstanding Section 12 of Am.
Sub. S.B. 3 of the 123rd General Assembly.
SECTION 6 . The amendment by this act of section 4909.15 of the Revised Code,
as amended by Am. Sub. S.B. 3 of the 123rd General Assembly, is contingent on
Am. Sub. S.B. 3 of the 123rd General Assembly becoming law.
SECTION 7 . Section 1565.15 of the Revised Code is presented in this act
as a composite of the section as amended by both
Am. Sub. S.B. 150 and Am. Sub. S.B. 162 of the 121st General Assembly, with
the new language of
neither of the acts shown in capital letters. This is in
recognition of the principle stated in division (B) of section
1.52 of the Revised Code that such amendments are to be
harmonized where not substantively irreconcilable and constitutes
a legislative finding that such is the resulting version in
effect prior to the effective date of this act.
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