[Federal Register Volume 59, Number 202 (Thursday, October 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26062]


[[Page Unknown]]

[Federal Register: October 20, 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, with an exception, 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 is a continuation of program 
amendment #93-2 and consists of revisions to Indiana's Surface Coal 
Mining and Reclamation Rules concerning show cause orders and 
adjudicative proceedings for the suspension and revocation of permits. 
The amendment is intended to revise the Indiana program to be 
consistent with SMCRA and the corresponding Federal regulations.

EFFECTIVE DATE: October 20, 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 15, 1994 (Administrative Record No. IND-1374), 
Indiana submitted the final-adopted language of program amendment #93-2 
concerning show cause orders and adjudicative proceedings for the 
suspension or revocation of permits. OSM published a final rule notice 
approving, with an exception, Indiana's program amendment #93-2 on 
November 18, 1993 (58 FR 60783). In that notice, OSM found that a 
previously imposed required amendment, cited at 30 CFR 914.16(d), could 
not be removed. Indiana's submittal of the final-adopted language of 
amendment #93-2 contains Indiana's response to the required program 
amendment at 30 CFR 914.16(d) and other changes made by Indiana. Since 
Indiana's final adoption of amendment #93-2 occurred after OSM 
published its approval of #93-2, any changes Indiana made to the 
language approved by OSM on November 18, 1993, must be considered by 
OSM to be the subject of a new proposed amendment.
    OSM announced receipt of the proposed amendment in the July 15, 
1994, Federal Register (59 FR 36114), 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 
August 15, 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. Nonsubstantive word changes 
and paragraph notation changes also appear in the final adopted version 
of amendment #93-2. However, only the substantive changes are discussed 
below.

1. 310 IAC 0.6-1-5  Petition for Review; Response

    Indiana is making numerous changes to this section. Subsection 5(c) 
is reworded to provide that when the director of the Indiana Department 
of Natural Resources (IDNR) determines that a permit issued pursuant to 
IC 13-4.1 and 310 IAC 12 should be suspended or revoked, the director 
of the IDNR (or a delegate of the director) shall issue to the 
permittee an order to show cause why the permit should not be revoked 
or suspended. Deleted from this paragraph is reference to IC 4-21.5-3-
8. This deletion does not render the provision less effective because 
IC 4-21.5-3 continues to be cited at subsection 5(g)(1) for the 
procedures to be followed if an answer is filed by the permittee 
concerning a show cause order. The Director finds that these changes 
are consistent with the Federal regulations at 30 CFR 843.13(a)(1) 
concerning pattern of violations.
    In subsection 5(c)(2), the words ``alleged in the order to show 
cause'' are added after the word ``violations.'' In subsection 
5(c)(2)(B) a reference to the Indiana surface coal mining regulations 
at 310 IAC 12 is added at the end of the sentence. The Director finds 
that these changes are consistent with 30 CFR 843.13(a).
    In subsection 5(e), the first sentence is reworded by referring to 
``an order to show cause.'' The word ``service'' is deleted and 
replaced by ``permittee's receipt of the order to show cause.'' The 
Director finds these changes to be consistent with 30 CFR 843.14 
concerning service.
    Subsection 5(e)(1) is amended by deleting the words ``as described 
in'' following the word ``violations.'' Reference to 310 IAC 12 is 
added following the second reference to IC 13-4.1. The Director finds 
these changes improve the clarity of the provision and are consistent 
with 43 CFR 4.1192(a), regarding answers to show cause orders.
    The language in 5(e)(1)(A) is amended to provide that the answer to 
the show cause order state the reasons for contesting ``that the facts 
alleged in the order to show cause constitute a pattern of 
violations.'' In subsection 5(e)(1)(C), the words ``to comply with IC 
13-4.1, 310 IAC 12, or any permit condition required by IC 13-4.1 or 
310 IAC 12'' are added at the end of the clause. The Director finds 
that these changes add to the clarity of the provision are consistent 
with 43 CFR 4.1192(a).
    Subsection 5(f) is amended by replacing the word ``response'' with 
``an answer.'' The word ``permittee's'' is added before the word 
``receipt.'' ``Show cause order'' has been amended to read ``order to 
show cause.'' The Director finds that these non-substantive changes add 
to the clarity of the provision and can be approved.
    In subsection 5(g)(1), ``a response'' is replaced by ``an answer.'' 
A new second sentence is added to read ``[t]he proceeding is commenced 
when the permittee files an answer under subsection (e).'' In the third 
sentence the phrase ``complaint and proposed order'' is changed to 
``order to show cause.'' The Director finds that these changes improve 
the clarity of the provision and are consistent with 30 CFR 843.13(b).
    Subsection 5(g)(2) is amended to provide that the administrative 
law judge (ALJ) shall ``issue findings and a written recommendation to 
the commission that the permit either'' be suspended or revoked. Prior 
to this change, the language provided that the ALJ shall ``order the 
permit either suspended or revoked.'' The second sentence is amended to 
provide ``[i]n issuing findings and a written recommendation to the 
commission'' the listed standards shall apply. The Director finds that 
this change is consistent with Indiana law that the Natural Resources 
Commission (the commission) is the ultimate authority for decisions to 
revoke permits, and the provision is consistent with 30 CFR 843.13(c) 
and 43 CFR 4.1194(a).
    Subsection 5(g)(2)(C) provides that the ALJ shall comply with the 
requirements of IC 4-21.5-3-27(a) through IC 4-21.5-3-27(d) and IC 4-
21.5-3-27(g). Subsection 5(g)(2)(C) also provides that the provisions 
of IC 4-21.5-3-27(e) and IC 4-21.5-3-27(f) shall not apply to show 
cause proceedings. The Indiana statutes at IC 4-21.5-3-27 concern the 
preparation of findings for final orders. IC 4-21.5-3-27 (e) and (f) 
appropriately do not apply. Subsection 27(e) authorizes the ALJ to 
allow the parties time after the conclusion of the hearing for the 
submission of proposed findings. The substance of subsection 27(e) is 
contained in proposed new subsection 310 IAC 0.6-1-5(g)(2)(D) and is, 
therefore, unnecessary. Subsection 27(f) provides for a 90-day deadline 
for the issuance of written findings following the hearing. Subsection 
27(f), therefore, is inconsistent with the 60-day time limit for the 
filing of written findings following a hearing provided for by 30 CFR 
843.13(c). The Director finds that these proposed provisions are 
consistent with 30 CFR 843.13(c) and 30 CFR Part 4 concerning hearings.
    New subsection 5(g)(2)(D) provides that any time prior to the 
conclusion of the hearing of record, the ALJ may allow the parties to 
submit briefs and proposed findings. The Director finds that this 
provision is consistent with the Federal hearing procedures at 43 CFR 
Part 4.1126.
    New subsection 5(g)(3) sets ten-day deadlines for the written 
recommendations of the ALJ following a hearing or following the 
permittee's answer if no hearing is requested. The Director finds this 
provision to be consistent with 43 CFR 4.1194(c) and that it partially 
addresses the required amendment at 30 CFR 914.16(d).
    New subsection 5(g)(4) prohibits the filing of objections to a 
director's recommendation under 310 IAC 0.6-1-5(f) by a person who did 
not comply with 310 IAC 0.6-1-5(e) concerning contesting an order to 
show cause. The Director finds that in total, the Indiana program 
contains the same or similar procedural requirements as the Federal 
regulations, and in particular, the proposed provision is not 
inconsistent with the Federal regulations at 30 CFR 843.13 and 43 CFR 
4.1191 and 4.1192.
    Following subsection 5(g)(4)(B) is a provision which provides as 
follows: ``[u]nder IC 13-4.1-11-6(c), the administrative law judge 
shall issue the findings and a non-final order within 60 days after 
conclusion of the hearing.'' This provision, which allows the ALJ 60 
days to render a non-final order, would leave no time for the 
commission to render its final decision and still conform to the 60-day 
time limit provided by 30 CFR 843.13(c). The proposed language is also 
inconsistent with proposed subsections 5(g)(3) and 5(h) which are no 
less effective than the 60-day provision at 30 CFR 843.13(c). 
Therefore, the Director finds that the language quoted above in this 
paragraph is less effective than the Federal regulations and cannot be 
approved. In addition, the Director is requiring that Indiana further 
amend 310 1AC 0.6-1-5 by deleting the language quoted above.
    Subsection 5(h) is amended to set a 50-day deadline for the final 
order of the commission following the issuance of the director's 
recommended order or the ALJ findings and written recommendations. 
Amendments also set a 90-day deadline for the commission's final order 
following receipt of the order to show cause by the permittee where the 
permittee does not comply with the requirements of 310 IAC 0.6-1-5(e). 
A 60-day deadline is set for the commission's final order following the 
hearing or the ALJ's receipt of the permittee's answer filed under 310 
IAC 0.6-1-5(e) if no hearing was requested nor necessary. The Director 
finds this provision to be consistent with 30 CFR 843.13(c) and fully 
satisfies the required program amendment at 30 CFR 914.16(d).
    Subsection 5(i), which was formerly found at subsection 5(g)(1), is 
amended by replacing ``administrative law judge'' with ``commission'' 
and adding a reference to 310 IAC 12 at the end of the first sentence. 
The Director finds these changes clarify responsibilities and 
procedures under the Indiana program and are consistent with 30 CFR 
843.13.
    Old subsection 5(j), which limited the number of hearings available 
to one before the director and one before the commission, is deleted. 
The Director finds that this deletion, which has no Federal 
counterpart, does not render 310 IAC 0.6-1-5 inconsistent with 30 CFR 
843.13 and 43 CFR 4.1190 through 4.1196, because the procedures for a 
hearing remain clear in the section.
    With the exceptions noted above, the Director finds that the 
proposed changes to 310 IAC 0.6-1-5 are consistent with and no less 
effective than the Federal regulations at 30 CFR 843.13 and 43 CFR 
4.1190 through 4.1196. In addition, the Director finds that the 
required program amendment codified at 30 CFR 914.16(d) is satisfied by 
these amendments and can be removed.

2. 310 IAC 0.6-1-13  Awards of Litigation Expenses

    Subsection 13(c) is amended by changing ``IC 13-8-5-7'' to read 
``IC 13-8-15-7.'' The Director finds that this correction of the 
citation does not render the provision less effective than 43 CFR 
4.1294 concerning the award of costs and expenses.

3. 310 IAC 0.7-3-5  Delegations

    New subsection 5(a) is added and provides that 310 IAC 0.7-3-5 
governs the delegation of authority by the Natural Resources Commission 
with respect to the Bureau of Mine Reclamation and with respect to the 
Division of Reclamation. Subsection 5(c) is deleted. This provision 
would grant the deputy director of the IDNR authority to take action to 
forfeit a bond. The Director finds that there are no Federal 
counterparts to the language proposed to be added and deleted, and that 
the addition and deletion does not render the Indiana program less 
effective than SMCRA or the Federal regulations.

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 
comments were received.

Public Comments

    The public comment period and opportunity to request a public 
hearing was announced in the July 15, 1994, Federal Register (59 FR 
36114). The comment period closed on August 15, 1994. No one commented 
and no one requested an opportunity to testify at the scheduled public 
hearing so no hearing was held.

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 provide any comments.

V. Director's Decision

    Based on the findings above, the Director is approving, except as 
noted herein, Indiana's program amendment concerning show cause orders 
and adjudicative proceedings as submitted by Indiana on June 15, 1994. 
As discussed in Finding 1, the Director is not approving the following 
language which appears immediately after 310 IAC 0.6-1-5(g)(4)(B): 
``Under IC 13-4.1-11-6(c), the administrative law judge shall issue the 
findings and a non-final order within sixty (60) days after conclusion 
of the hearing.'' In addition, the Director is requiring that Indiana 
further amend the Indiana program by deleting the language quoted 
above. Also based on Finding 1 above, the Director is removing the 
required program amendment codified at 30 CFR 914.16(d).
    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.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In his 
oversight of the Indiana program, the Director will recognize only the 
statutes, regulations and other materials approved by him, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by Indiana of only such 
provisions.

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: October 13, 1994.
Ronald C. Recker,
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 (ccc) is added to read as follows:


Sec. 914.15  Approval of regulatory program amendments.

* * * * *
    (ccc) The following amendment to the Indiana program concerning 
show cause orders and adjudicative proceedings for the suspension and 
revocation of permits as submitted to OSM on June 15, 1994, is 
approved, except as noted herein, effective October 20, 1994: 310 IAC 
0.6-1-5 concerning petition for review response, except the following 
language which appears immediately after 310 IAC 0.6-1-5(g)(4)(B) is 
not approved:
    ``Under IC 13-4.1-11-6(c), the administrative law judge shall issue 
the findings and a non-final order within sixty (60) days after 
conclusion of the hearing;'' 310 IAC 0.6-1-13 concerning awards of 
litigation expenses; and 310 IAC 0.7-3-5 concerning delegations.
    3. In Sec. 914.16, paragraph (d) is removed and reserved and 
paragraph (ff) is added to read as follows:


Sec. 914.16  Required program amendments.

* * * * *
    (ff) By April 15, 1995, Indiana shall amend the Indiana program by 
deleting the language quoted below which immediately follows subsection 
310 IAC 0.6-1-5(g)(4)(B): ``[u]nder IC 13-4.1-11-6(c), the 
administrative law judge shall issue the findings and a nonfinal order 
within sixty (60) days after conclusion of the hearing.''

[FR Doc. 94-26062 Filed 10-19-94; 8:45 am]
BILLING CODE 4310-05-M