[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17283]


[[Page Unknown]]

[Federal Register: July 15, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

 

Indiana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Indiana permanent 
regulatory program (hereinafter referred to as the Indiana program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The amendment (Program Amendment Number 93-3) consists of revisions to 
Indiana's Surface Coal Mining and Reclamation Rules concerning 
delegation of authority, ultimate authority, conduct of certain 
proceedings and record keeping by the administrative law judge (ALJ). 
The amendment is intended to revise the Indiana Administrative Code 
(IAC) rules to implement statutory changes contained in the 1991 Senate 
Enrolled Act (SEA) 154.

EFFECTIVE DATE: July 15, 1994.

FOR FURTHER INFORMATION CONTACT:
Mr. Roger W. Calhoun, Director, Indianapolis Field Office, Office of 
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal 
Building, 575 North Pennsylvania Street, Room 301, Indianapolis, IN 
46204, Telephone (317) 226-6166.

SUPPLEMENTARY INFORMATION: 

I. Background on the Indiana Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Indiana Program

    On July 29, 1982, the Indiana program was made effective by the 
conditional approval of the Secretary of the Interior. Information 
pertinent to the general background on the Indiana program, including 
the Secretary's findings, the disposition of comments, and a detailed 
explanation of the conditions of approval of the Indiana program can be 
found in the July 26, 1982 Federal Register (47 FR 32107). Subsequent 
actions concerning the conditions of approval and program amendments 
are identified at 30 CFR 914.10, 914.15, and 914.16.

II. Submission of the Amendment

    By letter dated June 4, 1991 (Administrative Record Number IND-
0894), the Indiana Department of Natural Resources (IDNR) submitted a 
proposed amendment to the Indiana program concerning statutes enacted 
by Indiana under SEA 154 from the 1991 Indiana Legislative Session. The 
amendments included provisions concerning requirements for hearings, 
and changes in the responsibilities of the director of the IDNR and the 
Natural Resources Commission (NRC). OSM approved the proposed 
amendments on June 23, 1992 (57 FR 27928).
    By letter dated April 2, 1993 (Administrative Record Number IND-
1217), Indiana submitted proposed program amendment number 93-3. 
Program amendment 93-3 consists of changes to the Indiana rules 
concerning delegation of authority, ultimate authority, conduct of 
certain proceedings, and record keeping by the ALJ. The changes to the 
Indiana rules reflect the statutory changes contained in the 1991 SEA 
154 discussed above.
    OSM announced receipt of the proposed amendment in the April 23, 
1993, Federal Register (58 FR 21693), and, in the same notice, opened 
the public comment period and provided opportunity for a public hearing 
on the adequacy of the proposed amendment. The comment period closed on 
May 24, 1993. Upon review of the proposed amendments, OSM identified 
additional changes to the rules which had not been previously reviewed 
and approved by OSM. On September 21, 1993, OSM reopened the public 
comment period and invited public comment on those changes which were 
not previously identified as amendments subject to public comment (58 
FR 48996). The public comment period closed on October 6, 1993. OSM 
reopened the public comment period on March 28, 1994 (59 FR 14375), 
after Indiana submitted a version of the amendment which differed from 
the original submittal. The public comment period closed on April 12, 
1994.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment to the Indiana program. Revisions which are not 
discussed below concern nonsubstantive wording changes, or revise 
paragraph notations to reflect organizational changes resulting from 
this amendment.

1. 310 IAC 0.6-1-2  Applicability of Rule

    (a) Subsection 2(a) is amended by replacing the term ``department'' 
with the term ``commission.'' In effect, under this amendment, 
administrative law judges conduct proceedings for the NRC rather than 
the IDNR. Under Public Law 28-199, SEA 362 (referred to as the 
``Sunset'' law), Indiana amended Indiana Code (IC) IC 14-3-3-3(e) to 
provide that the Indiana NRC shall appoint administrative law judges. 
The proposed amendment, therefore, is consistent with IC 14-3-3-3(e) as 
amended by SEA 362. OSM approved the amendments to IC 14-3-3-3(e) made 
by SEA 362 on August 2, 1991 (56 FR 37016). While there is no direct 
Federal counterpart to the proposed provision at subsection 2(a), the 
Director finds the proposed amendment is not inconsistent with SMCRA 
section 503 concerning the establishment of State programs.
    (b) Subsection 2(b) is amended to provide that 310 IAC 0.6-1-8 and 
310 IAC 0.6-1-12 do not apply if the ALJ is the NRC. The proposed 
language does not render the Indiana program less effective for the 
following reasons. 310 IAC 0.6-1-8 pertains to automatic changes of the 
ALJ. Since the NRC is the ultimate authority for the IDNR, the 
provision at 310 IAC 0.6-1-8 concerning automatic changes of the ALJ 
would not apply. 310 IAC 0.6-1-12 also would not apply because section 
310 IAC 0.6-1-12 only pertains to orders from other than the ultimate 
authority. While there is no direct Federal counterpart to the proposed 
provision at 2(b), the Director finds the proposed amendment is not 
inconsistent with SMCRA section 503.
    (c) This new subsection provides that 310 IAC 0.6-1-12, concerning 
objections to recommendations of an ALJ, does not apply if IC 4-21.5-4 
concerning emergency orders, or if sections 310 IAC 0.6-1-2.5(b) 
concerning administrative reviews by an ALJ, or (c) concerning final 
orders by an ALJ apply. Additionally, the proposed language provides 
that a party may seek judicial review under IC 4-21.5-5 of a final 
order made by an ALJ under 310 IAC 0.6-1-2.
    There is no direct Federal counterpart to the proposed language. 
The Director finds, however, that the proposed language is not 
inconsistent with SMCRA because the public has the right to appeal 
decisions by the regulatory authority under IC 4-21.5-5 concerning 
judicial review.

2. 310 IAC 0.6-1-2.5  Ultimate Authority

    This new section is added to provide at subsection 2.5(a) that the 
NRC is the ultimate authority for the IDNR for proceedings under rule 
310 IAC 0.6-1, except as provided in subsections 2.5 (b) and (c). In 
subsection 2.5(b), the ALJ is the ultimate authority for administrative 
reviews under IC 13-4.1 or 310 IAC 12, except for proceedings 
concerning the approval or disapproval of a permit application or 
permit renewal under IC 13-4.1-4-5 and proceedings for suspension or 
revocation of a permit under IC 13-4.1-11-6. In subsection 2.5(c), an 
order made by an ALJ granting or denying temporary relief from a 
decision of the director of the IDNR is a final order of the 
department.
    The proposed language is consistent with the Indiana provisions 
contained in its ``Sunset law'' (Pub. L. 28-199, SEA 362). While there 
is no Federal counterpart to section 2.5, the Director finds that the 
proposed language is not inconsistent with SMCRA section 503 concerning 
the establishment of State programs.

3. 310 IAC 0.6-1-17  Record of Proceedings

    This new section is added to provide (in subsection 17(a)) that the 
record required to be kept by an ALJ under IC 4-21.5-3-14 commences 
with the filing of one of the following with the director of the IDNR: 
(1) A petition for administrative review under IC 4-21.5-3-7; (2) a 
complaint under IC 4-21.5-3-8; (3) a proceeding before an ALJ under IC 
4-21.5-4.
    New subsection 17(b) provides that the record required to be kept 
by an ALJ consists of the official record as set forth in IC 4-21.5-3-
33.
    New subsection 17(c) provides that in addition to subsections 17 
(a) and (b), subsection 17(c) applies to proceedings concerning the 
approval or disapproval of a permit application, permit revision 
application, or permit renewal under IC 13-4.1-4-5.
    Upon a timely objection before or during a hearing, the ALJ shall 
exclude testimony or exhibits which are offered but which identify or 
otherwise address matters which were not part of the ``record before 
the director'' under IC 13-4.1-4-5. The ``record before the director'' 
includes each of the following: (1) The permit; (2) the permit 
application; (3) documentation tendered or referenced in writing by the 
applicant or an interested person for the purposes of evaluating, or 
used by the IDNR to evaluate the application; (4) the analyses of the 
IDNR in considering the application, including the expertise of the 
IDNR's employees and references used to evaluate the application; (5) 
documentation received under IC 13-4.1-4-2, including the conduct and 
results of any informal conference or public hearing under IC 13-4.1-4-
2(c); (6) correspondence received or generated by the department 
relative to the application, including letters of notification, proofs 
of filing newspaper advertisements, and timely written comments from an 
interested person.
    Upon review of the amendment, OSM informed Indiana that the 
proposed language at subsection 17(c) appears to limit the record 
before the director of the IDNR (director) to a degree which would 
prevent a full public hearing on the application. In response to OSM's 
concerns, Indiana stated that the State differs with OSM's 
interpretation of both the intent and application of the proposed 
language (Administrative Record Number IND-1311).
    Indiana stated that the Division of Reclamation of the IDNR agrees 
with OSM that evidence ``created after an agency decision, or otherwise 
not fairly available to the proponent prior to that decision, is 
important in determining the propriety of the issuance or denial of a 
permit.'' Indiana further stated that ``[E]xclusion of valid evidence 
which was not fairly available prior to the agency action would deny 
aggrieved individuals a fair opportunity to present evidence and 
arguments regarding a particular permit application'' and would 
``thwart the fundamental protection purpose of SMCRA.''
    In order to clarify the Division's interpretation, Indiana stated 
that ``[i]t is not our interpretation that a party should be afforded 
unlimited license to submit any and all `evidence' which that party 
believes relevant.'' ``Clearly,'' the State asserted, ``any information 
before the agency during the initial decision making process is 
relevant in a subsequent administrative review proceeding.'' 
``However,'' the State added, ``a party should not be permitted to `sit 
on their rights' during the entire permit review and public comment 
periods, thereby denying the reviewing agency the benefit of crucial 
information, and subsequently challenge the propriety of the agency 
decision based upon information withheld by the `aggrieved' party.'' 
(Administrative Record No. IND-1311).
    In a letter to Indiana dated February 2, 1994 (Administrative 
Record Number IND-1353), OSM stated its agreement with Indiana's 
concerns as noted above. However, despite the Division's interpretation 
of what should or should not be included in the record before the 
director, OSM stated that it appears that it would be the ALJ, and not 
the Division of Reclamation, which would decide what evidence could or 
could not be considered at a hearing or a pre-hearing conference. The 
ALJ's would decide these issues when presented with objections to the 
admission of evidence alleged to be outside of the record made before 
the director.
    In response, Indiana stated in a letter dated February 18, 1994 
(Administrative Record Number IND-1337), that it disagreed with OSM's 
interpretation that a plain language reading of the proposed language 
at 310 IAC 0.6-1-17(c) requires exclusion of evidence generated after a 
decision, or not fairly available in advance of the agency decision. 
Instead, Indiana offered reasons why it believes the proposed language 
affords sufficient flexibility to permit the introduction of such 
evidence.
    Indiana asserted that the proposed language provides that 
subsections 17 (a) and (b) apply to permit review proceedings. 
Subsection 17(b) states that the ``record'' includes the ``official 
record'' under IC 4-21.5-3-33. IC 4-21.5-3-33(b)(4) provides, in part, 
that the agency record includes ``evidence received or considered.'' 
``Similarly,'' the State asserts, ``IC 4-21.5-3-33(b)(6) provides that 
the agency record includes proffers of proof and objections and rulings 
on them.'' The Division of Reclamation interprets the above-referenced 
provisions as being sufficiently general to allow the introduction of 
evidence generated after, or not fairly available in advance of the 
agency decision under review.
    Indiana noted that 310 IAC 0.6-1-17(c) provides that ``* * * 
nothing in this subsection precludes the admission of testimony or 
exhibits which are limited to an explanation or analysis of materials 
included in the record before the director, or the manner in which the 
materials were applied, used, or relied upon in evaluating the 
application.'' The Division of Reclamation interprets this provision 
``as providing sufficient flexibility to permit the introduction of 
evidence generated after, or not fairly available in advance of the 
agency decision as explanation or analysis evidence.'' (Administrative 
Record No. IND-1337).
    The Director agrees that the provisions cited by Indiana could 
indeed be interpreted as to allow the introduction of some evidence 
generated after, or not fairly available in advance of the agency 
decision. Again, however, the ALJ's will be charged with interpreting 
this regulation, not the IDNR.
    Subsection 514(c) of SMCRA and 30 CFR 775.11(b)(1) require that 
hearings conducted by State regulatory authorities on permitting 
decisions must be of record and adjudicatory in nature. Indiana meets 
those standards. Consequently, Indiana's proposed language is no less 
stringent than SMCRA and no less effective than the Federal 
regulations. The Director understands that under this rule some 
evidence and documentation could be ruled inadmissible by an ALJ in a 
post-decisional hearing. However, this rule does not prevent such 
evidence and documentation from being remanded by an ALJ to the 
regulatory authority for analysis and reconsideration of its permit 
decision. In this way, evidence submitted which is deemed relevant and 
important to a permit decision can be considered, while at the same 
time assuring that permit decisions remain in the hands of the 
regulatory authority.

4. 310 IAC 0.6-1-9  Defaults, Dismissals, Agreed Orders, and Consent 
Decrees

    Subsection 9(a) has been amended to provide that an ALJ may, on its 
own motion or the motion of a party, enter a nonfinal order of default 
or dismissal, as appropriate, and submit the nonfinal order to the 
secretary of the NRC for final action if any of the described 
conditions are met. Prior to this amendment, the rule only provided for 
nonfinal orders of dismissal by the ALJ. New subsection 9(a)(3) is 
added to provide that the ALJ may enter a nonfinal order of default or 
dismissal where the party which initiated the administrative review 
requests the proceeding be dismissed, and every other party joins or 
acquiesces in the dismissal. In addition, new subsection 9(a)(4) is 
added to provide that where the ALJ may enter a nonfinal default or 
dismissal order, a default or dismissal could be entered in a civil 
action.
    New subsection 9(b) provides that an ALJ shall approve an agreed 
order or consent decree entered by the parties, if it is: (1) Clear and 
concise; and (2) lawful.
    New subsection 9(c) provides that an ALJ may enter a nonfinal order 
of default or a nonfinal order of involuntary dismissal only following 
the issuance of a proposed order of default or proposed order of 
dismissal under IC 4-21.5-3-24.
    New subsection 9(d) provides that the secretary of the NRC, as the 
designee of the NRC under IC 4-21.5-3-28(b), may affirm the entry of a 
nonfinal default order, dismissal order, or consent decree. The 
secretary of the NRC has exclusive authority to approve, remand, or 
submit to the commission for final action, any nonfinal order or decree 
entered by an ALJ under section 310 IAC 0.6-1-9. A party which opposes 
the entry of a final order by the secretary of the NRC must file a 
written objection, and the ALJ and any other party may file a written 
response to the objection.
    Subsection 9(e) is amended to provide that an order of default, 
order of dismissal, agreed order, or consent decree made by the 
secretary of the NRC is a final order of the IDNR and is made with 
prejudice, unless otherwise specified in the order or decree. Prior to 
the proposed amendment, the rule did not include an order of default by 
the Secretary as a final order of the IDNR, nor did it specify the 
secretary of the NRC as the designee of the IDNR for purposes of 
issuing final orders.
    New subsection 9(f) provides that an order of default, order of 
dismissal, agreed order, or consent decree made by an ALJ, where acting 
as the ultimate authority for the IDNR under section 310 IAC 0.6-1-
2.5(b), is a final order of the department unless otherwise specified 
in the order or decree. A person may seek judicial review of a final 
order entered under 310 IAC 0.6-1-9(f) as provided in IC 4-21.5-5.
    There are no direct counterparts to the proposed rules. The 
Director finds, however, that the proposed rules are not inconsistent 
with SMCRA at section 514 concerning decisions of the regulatory 
authority and appeals, and the Federal regulations at 30 CFR Part 775 
concerning administrative and judicial review of decisions.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), 
comments were solicited from various interested Federal agencies. No 
agency comments were received concerning the proposed amendments to the 
Indiana program.

Public Comments

    The public comment period and opportunity to request a public 
hearing was announced in the April 23, 1993, Federal Register (58 FR 
21693). The comment period closed on May 24, 1993. The public comment 
period was reopened on September 21, 1993 (58 FR 48996) and again on 
March 28, 1994 (59 FR 14375). These comment periods closed on October 
6, 1993, and April 12, 1994, respectively. No one requested an 
opportunity to testify at the scheduled public hearing so no hearing 
was held. The Indiana Coal Council, Inc. (ICC) commented in support of 
the proposed amendments.
    Ms. F. K. Harris commented that the proposed amendment at 310 IAC 
0.6-1-17(c), which authorizes the ALJ to exclude testimony or exhibits 
which are offered but which identify matters which were not part of the 
``record before the director,'' inappropriately limits the evidence 
which can be introduced at a permit review hearing. The Director 
disagrees. As discussed above in Finding 3, SMCRA at section 514(c) and 
the Federal regulations at 30 CFR 775.11(b)(1) provide that hearings 
conducted by State regulatory authorities on permitting decisions must 
be of record and adjudicatory in nature. Indiana meets those standards. 
The proposed language may allow some information or documentation to be 
excluded from post-decisional hearings. However, this proposal does not 
prevent and ALJ at a permit hearing from remanding relevant and 
important information and documentation to the regulatory authority for 
analysis and reconsideration of its permit decision. Such a remand 
would benefit the State in its interest in issuing only those permits, 
revisions, and renewals which should be issued.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the EPA with respect to 
any provisions of a State program amendment that relate to air or water 
quality standards promulgated under the authority of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et 
seq.). The Director has determined that this amendment contains no 
provisions in these categories and that EPA's concurrence is not 
required.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (Administrative Record No. IND-1221). EPA 
did not respond to OSM's request.

V. Director's Decision

    Based on the findings above, the Director is approving Indiana's 
program amendment number 93-3 as submitted by Indiana on April 2, 1993, 
and clarified by OSM on September 21, 1993, and March 28, 1994.
    The Federal regulations at 30 CFR Part 914 codifying decisions 
concerning the Indiana program are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 9, 1994.
Robert J. Biggi,
Acting Assistant Director, Eastern Support Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 914--INDIANA

    1. The authority citation for part 914 continues to read as 
follows:

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

    2. In Sec. 914.15, paragraph (aaa) is added to read as follows:


Sec. 914.15   Approval of regulatory program amendments.

* * * * *
    (aaa) The following amendment (Program Amendment Number 93-3) to 
the Indiana program as submitted to OSM on April 2, 1993, and clarified 
on September 21, 1993, and March 28, 1994, is approved effective July 
15, 1994: 310 IAC 0.6-1-2 concerning applicability of the rule; 310 IAC 
0.6-1-2.5 concerning ultimate authority for the Indiana Department of 
Natural Resources; 310 IAC 0.6-1-9 concerning defaults, dismissals, 
agreed orders, and consent decrees, and 310 IAC 0.6-1-17 concerning 
record of the director for surface coal mining permits.

[FR Doc. 94-17283 Filed 7-14-94; 8:45 am]
BILLING CODE 4310-05-M