[Federal Register Volume 60, Number 64 (Tuesday, April 4, 1995)]
[Rules and Regulations]
[Pages 16985-16988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8115]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[IN-111-FOR; Amendment 94-1]


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 exceptions, 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 consists of revisions to Indiana's 
Surface Coal Mining and Reclamation Statutes concerning bond forfeiture 
procedures, underground mine subsidence control, permit revocation 
procedures, administrative orders and procedures, and conflict of 
interest. The amendment is intended to revise the Indiana Code (IC) to 
implement statutory changes.

EFFECTIVE DATE: April 4, 1995.

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 March 21, 1994 (Administrative Record Number IND-
1341), the Indiana Department of Natural Resources (IDNR) submitted a 
proposed amendment consisting of three sets of changes to the Indiana 
program. The first set of changes involve statutes enacted by Indiana 
under SEA 408 from the 1994 Indiana Legislative Session. The amendments 
concern bond forfeiture procedures, underground mine subsidence 
control, and permit revocation procedures. The second set of amendments 
are contained in SEA 319 (Pub. L. 7-1987). These amendments primarily 
concern the substitution of the citation of the then- 
[[Page 16986]] repealed IC 4-22-1 with IC 4-21.5 concerning 
administrative orders and procedures. The third amendment is contained 
in HEA 1516 (Pub. L. 13-1987). This amendment changes the Indiana 
conflict of interest provisions.
OSM announced receipt of the proposed amendment in the April 18, 1994, 
Federal Register (59 FR 18330), 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 18, 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. IC 13-4.1-6-9  Forfeiture of Bond

    Indiana is adding new subsection 9(b) to provide that an order 
issued under IC 13-4.1-6-9(a) is governed by IC 4-21.5-3-6 and becomes 
an effective and final order without a proceeding if a request for 
review of the order is not filed within 15 days after the order is 
served upon: (1) the permittee; and (2) the person that executed the 
permittee's bond or other performance guarantee, if the permittee filed 
a bond or other performance guarantee under IC 13-4.1-1.
    The Director finds the proposed language is substantively identical 
to and no less effective than the Federal regulations at 30 CFR 
800.50(b)(1) concerning forfeiture of bond.

 2. IC 13-4.1-9-2.5  Subsidence--Repair or Compensation

    This new section is added as a counterpart to SMCRA section 720 
which was added by the Energy Policy Act of 1992 (Pub. L. 102-486 [H.R. 
776]; October 24, 1992). Subsection 2.5(a) provides that as used in 
subsection 2.5(d)(1), ``repair'' includes rehabilitation, restoration, 
or replacement. This proposed language is substantively identical to 
SMCRA subsection 720(a)(1) which provides that repair of damage shall 
include rehabilitation, restoration, or replacement.
    New subsection 2.5(b) provides that as used in subsection 
2.5(d)(1), ``compensate'' means to provide compensation in an amount 
equal to the full amount of the diminution of value resulting from the 
subsidence referred to in subsection 2.5(d)(1). This proposed language 
is substantively identical to SMCRA subsection 720(a)(1) which provides 
that compensation shall be provided in the full amount of the 
diminution in value resulting from the subsidence.
    New subsection 2.5(c) provides that for the purposes of subsection 
2.5(d)(1), compensation may be accomplished through the purchase, 
before the commencement of mining operations, of a noncancellable 
premium-prepaid insurance policy. This proposed language is 
substantively identical to SMCRA section 720(a)(1) which provides that 
compensation may be accomplished by the purchase, prior to mining, of a 
noncancellable premium-prepaid insurance policy.
    New subsection 2.5(d) provides that the operator of an underground 
coal mining operation conducted after June 30, 1994, shall do the 
following: (1) Promptly repair or compensate for material damage 
resulting from subsidence caused to: (A) any occupied residential 
dwelling and any structure related to the occupied residential 
dwelling; or (B) any noncommercial building; due to the operator's 
underground coal mining operation. (2) Promptly replace any drinking, 
domestic, or residential water supply from a well or spring that: (A) 
was in existence before the filing of the operator's application for a 
surface coal mining and reclamation permit; and (B) has been affected 
by contamination, diminution, or interruption resulting from the 
operator's underground coal mining operation. This proposed language is 
substantively identical to SMCRA section 720(a), except that the 
Indiana provision applies only to underground coal mining operations 
which occur after June 30, 1994. SMCRA section 720(a) provides that 
underground coal mining operations conducted after the date of 
enactment of new section 720 (October 24, 1992) shall comply with the 
requirements of section 720. Therefore, to the extent that the proposed 
amendment meets the requirements of SMCRA section 720(a) from June 30, 
1994, the Director finds that IC 13-4.1-9-2.5 is no less stringent than 
SMCRA section 720(a).
    The Director is deferring decision on the enforcement of the 
provisions of SMCRA section 720(a) during the period from the effective 
date of SMCRA section 720 (October 24, 1992) to the effective date of 
IC 13-4.1-9-2.5 (June 30, 1994). The Federal subsidence regulations 
which will implement SMCRA section 720(a) have been finalized and will 
be published shortly. Within 120 days after the publication of the new 
Federal subsidence regulations, OSM intends to published for each State 
with a regulatory program, including Indiana, final rule notices 
concerning the enforcement of the provisions of the Energy Policy Act 
in those States.

3. IC 13-4.1-11-6  Suspension or Revocation of Permit

    Indiana is amending subsection 6(a)(1)(B) by deleting the term 
``commission'' and adding the words ``adopted under IC 13-4.1-2-1.'' 
Indiana is also relating the words ``the violations.'' As amended, IC 
13-4.1-11-6(a)(1)(B) reads as follows: ``the rules adopted under IC 13-
4.1-2-1.'' Since IC 13-4.1-2-1 is the provision which establishes the 
authority for the Indiana Natural Resources Commission (the commission) 
to adopt rules, the change does not render the provision less 
effective. A similar amendment at subsection 6(a)(2)(A)(ii) also does 
not render the provision less effective.
    Indiana is adding the words ``permit conditions'' at subsection 
6(a)(2)(A)(iii) to provide a counterpart to SMCRA section 521(a)(4).
    Subsection 6(a) is amended to provide that if the director of the 
IDNR determines that the criteria at subsections 6(a) (1) and (2) 
apply, the director shall issue an order of permit suspension or 
revocation and provide an opportunity for a public hearing. The 
provision formerly provided for an order ``to the permittee to show 
cause why the permit should not be suspended or revoked.'' The 
amendment does not render the provision less stringent than SMCRA 
section 521(a)(4) because section 6 in its entirety still provides for 
a hearing at which the permittee could show cause why the permit should 
not be suspended or revoked.
    Subsection 6(b) is amended by relocating the existing language to 
new subsection 6(e). New language is added to subsection 6(b) to 
provide that an order issued under the pattern of violations criteria 
at subsection 6(a) is governed by IC 4-21.5-3-6 concerning required 
notice, and becomes an effective and final order of the commission 
without a proceeding if a request for review of the order is not filed 
within 30 days after the order is served upon the permittee. The 
Director finds the revision to be no less stringent than SMCRA at 
section 521(a)(4).
    Subsection 6(c) is amended by replacing a citation of ``IC 4-21.5-
3'' with ``IC 4-21.5.'' This change appropriately expands the citation 
to the entire Indiana administrative orders and procedures at IC 4-
21.5. A block of [[Page 16987]] language concerning a written decision 
following the hearing is deleted from subsection 6(c) and added to new 
subsection 6(g).
    New subsection 6(d) is added to provide that in a hearing requested 
under IC 4-21.5-3-7, the director of the IDNR has the burden of going 
forward with evidence demonstrating that the permit in question should 
be suspended or revoked. The burden shall be satisfied if the director 
establishes a prima facie case that the criteria of subsection 6(a) 
have been met. This proposed language is consistent with and no less 
stringent than SMCRA at section 521(a)(4).
    The language in new subsection (e) is relocated from subsection 
6(b).
    New subsection 6(f) provides that if the director of the IDNR 
determines in a hearing requested under IC 4-21.5-3-7 that the permit 
in question should be suspended or revoked, the permittee has the 
ultimate burden of persuasion to show cause why the permit should not 
be suspended or revoked. A permittee may not challenge the fact of any 
violation that is the subject of a final order of the director of the 
IDNR. The Director finds that the proposed language is substantively 
identical to and no less stringent than SMCRA at section 521(a)(4).
    New subsection 6(g) contains language deleted from subsection 6(c) 
and concerns the 60-day requirement to issue a final written decision 
following a hearing. The Director finds the proposed language is not 
inconsistent with SMCRA at section 521(a)(4) and is substantively 
identical to and no less effective than 30 CFR 843.13(c).
    Based on the discussion above, the Director is approving the 
amendment to IC 13-4.1-11-6.

4. IC 13-4.1-2-4  Petition Procedures for Rules

    This section is amended in two locations by deleting reference to 
IC 4-22-1 and adding in its place a reference to IC 4-21.5 concerning 
administrative orders and procedures. IC 4-21.5 is Indiana's current 
statute controlling administrative orders and procedures and replaces 
the repealed IC 4-22-1. The Director finds the change does not render 
the Indiana program less effective.
    Indiana is making similar citation changes in several provisions. 
Most of these changes involve replacing reference to the repealed IC 4-
22-1 with IC 4-21.5 concerning administrative orders and procedures. At 
IC 13-4.1-4-3 Indiana is deleting reference to IC 14-4-2 which was 
repealed by Indiana in 1986 by Pub. L 115-1986, at section 22. The 
following provisions contain citation changes which do not render the 
Indiana program less stringent than SMCRA:

IC 13-4.1-2-4; IC 13-4.1-4-3; IC 13-4.1-4-5; IC 13-4.1-6-7; IC 13-4.1-
11-6; IC 13-4.1-11-8; IC 13-4.1-11-12; IC 13-4.1-12-1; IC 12-4.1-13-1; 
and IC 13-4.1-15-9.

5. IC 13-4.1-2-3 Conflict of Interest

    This provision is amended to provide that an employee of the IDNR 
who has any duty under IC 13-4.1 may not have a direct or indirect 
financial interest in any surface coal mining operation. A member of 
the commission who has such an interest shall file annually with the 
State Board of Accounts. Any person who knowingly violates this 
provision commits a Class A misdemeanor.
    Upon review of this provision, the Director has determined that 
this version of IC 13-4.1-2-3 predates and is superseded by the version 
which was the subject of a finding by the Director published in the 
Federal Register on December 15, 1989 (54 FR 51388). In that finding, 
the Director determined that IC 13-4.1-2-3 is not consistent with SMCRA 
at 517(g) and the Federal rules at 30 CFR part 705 and did not approve 
the amendments (see Finding 1, pages 51388 and 51389 of the December 
15, 1989, Federal Register). In addition, the Director required at 30 
CFR 914.16(b) that Indiana amend IC 13-4.1-2-3 or otherwise amend the 
Indiana program to be consistent with SMCRA at 517(g) and the Federal 
regulations at 30 CFR part 705 concerning employees of the regulatory 
authority who have a function or duty under SMCRA. That requirement 
still stands. Therefore, the Director is not acting on this earlier, 
superseded version of IC 13-4.1-2-3.

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 18, 1994, Federal Register (59 FR 
18330). The comment period closed on May 18, 1994. No one requested an 
opportunity to testify at the scheduled public hearing so no hearing 
was held.
    Mr. Rabb Emison, an attorney, submitted a comment on behalf of five 
operators of publicly regulated pipelines in Indiana which carry 
petroleum products and natural gas. The following comments were made.
    The commenters welcomed the proposed language concerning subsidence 
but stated that the amendment is not complete. Specifically, the 
comment stated that the proposed language specifies certain surface 
structures for protection, but may be interpreted to deny equal 
protection to commercial structures such as pipelines. This, they 
asserted, would seem to limit the protection Congress intended in 
section 516(b)(1) of SMCRA.
    The comment stressed that protection of pipelines from unplanned 
subsidence is needed to prevent rupture of the pipelines and potential 
damage to property and the environment and loss of life. Protection 
should be given to surface structures equally, they stated.
    In response, the Director notes that the proposed language is 
substantively identical to the counterpart language in SMCRA at section 
720. The language of section 720(a) of SMCRA provides for the repair or 
compensation for material damage resulting from subsidence caused to 
any occupied residential dwelling and structures related thereto, or 
noncommercial building due to underground coal mining operations.
    In response to SMCRA section 720(b), OSM published proposed rules 
intended to implement SMCRA section 720(a) (58 FR 50174; September 24, 
1993). In that notice, OSM specifically solicited comments on whether a 
need exists for nationwide rules that go beyond those required by SMCRA 
section 720(a). Comments received in response to that proposed rule are 
being reviewed.

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 Number IND-1221). By 
letter dated June 21, 1994 (Administrative Record Number IND-1372), EPA 
concurred without comment. [[Page 16988]] 

V. Director's Decision

    Based on the findings above, and except as noted below, the 
Director is approving the program amendment submitted by Indiana on 
March 21, 1994. As discussed in Finding 2, the Director is approving IC 
13-4.1-9-2.5 to the extent that the proposed amendment meets the 
requirements of SMCRA section 720(a) from June 30, 1994. In addition, 
the Director is deferring decision on the enforcement of the provisions 
of SMCRA section 720(a) during the period from the effective date of 
SMCRA section 720 (October 24, 1992) to the effective date of IC 13-
4.1-9-2.5 (June 30, 1994). As discussed above in Finding 5, the 
Director is not acting on IC 13-4.1-2-3.
    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: March 27, 1995.
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 Section 914.15, paragraph (ggg) is added to read as follows:


Sec. 914.15  Approval of regulatory program amendments.

* * * * *
    (ggg) The following amendment (Program Amendment Number 94-1) to 
the Indiana program as submitted to OSM on April 18, 1994, is approved, 
except as noted below, effective April 4, 1995:

IC 13-4.1-6-9  Forfeiture of bond
IC 13-4.1-9-2.5  Subsidence repair or compensation, to the extent that 
the proposed amendment meets the requirements of SMCRA section 720(a) 
from June 30, 1994. The Director is deferring decision on the 
enforcement of the provisions of SMCRA section 720(a) during the period 
from the effective date of SMCRA section 720 (October 24, 1992) to the 
effective date of IC 13-4.1-9-2.5 (June 30, 1994).
IC 13-4.1-11-6  Suspension or revocation of permits
IC 13-4.1-2-4  Petition procedures for rules
IC 13-4.1-2-4  Rule petition procedures
IC 13-4.1-4-3  Necessary permit findings
IC 13-4.1-4-5  Hearing on permit approval/disapproval
IC 13-4.1-6-7  Release of bond or deposit
IC 13-4.1-11-6  Suspension or revocation of permit
IC 13-4.1-11-8  Temporary relief
IC 13-4.1-11-12  Hearings; intervention
IC 13-4.1-12-1  Civil penalties
IC 13-4.1-13-1  Review of action of the director/commission
IC 13-4.1-15-9  Hearings; use or disposition of acquired lands

    The Director is not acting on IC 13-4.1-2-3, Conflict of interest.

[FR Doc. 95-8115 Filed 4-3-95; 8:45 am]
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