[Federal Register Volume 64, Number 242 (Friday, December 17, 1999)]
[Rules and Regulations]
[Pages 70578-70584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32741]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[SPATS No. IN-142-FOR]
Surface Coal Mining and Reclamation Operations On Federal Lands;
State-Federal Cooperative Agreements; Indiana
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: The Governor of the State of Indiana and the Secretary of the
Department of the Interior (Secretary) are entering into a cooperative
agreement between the Department of the Interior and the State of
Indiana. This agreement will allow Indiana, under the permanent
regulatory program, to regulate surface coal mining and reclamation
operations on Federal lands in Indiana. Section 523(c) of the Surface
Mining Control and Reclamation Act of 1977 (SMCRA) authorizes the
cooperative agreement.
EFFECTIVE DATE: January 18, 2000.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,
Indianapolis Field Office, Office of Surface Mining, Minton-Capehart
Federal Building, 575 North Pennsylvania Street, Room 301,
Indianapolis, Indiana 46204-1521. Telephone (317) 226-6700. Internet:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Indiana Program
II. Submission of the Cooperative Agreement
III. Director's Findings
IV. Approval of the Cooperative Agreement
V. Summary and Disposition of Comments
VI. Procedural Determinations
I. Background on the Indiana Program
The Secretary conditionally approved the Indiana program effective
on July 29, 1982. On August 19, 1983, the program was fully approved.
You can find background information on the Indiana program, including
the Secretary's findings, the disposition of comments, and the
conditions of approval in the July 26, 1982, Federal Register (47 FR
32107). You can find later actions on the Indiana program at 30 CFR
914.10, 914.15, and 914.16.
II. Submission of the Cooperative Agreement
By letter dated March 10, 1998 (Administrative Record No. IND-
1598), Indiana submitted a request for a State-Federal cooperative
agreement under 30 CFR 745.11.
We announced receipt of the amendment in the February 8, 1999,
Federal Register (64 FR 6150). In the same document, we opened the
public comment period and provided an opportunity for a public hearing
on the adequacy of the cooperative agreement. The public comment period
closed on April 9, 1999. Because no one requested a public hearing or
meeting, we did not hold one.
[[Page 70579]]
III. Director's Findings
Under the Federal regulations at 30 CFR 745.11(f), we must make the
following three findings before recommending to the Secretary that the
Department of the Interior enter into a cooperative agreement with a
State.
1. We find that the State of Indiana has a State program which was
conditionally approved and became effective on July 29, 1982, after
publication in the Federal Register on July 26, 1982 (47 FR 32107). The
program was fully approved on August 19, 1983 (48 FR 37626).
2. We find that the State regulatory authority has sufficient
budget, equipment and personnel to enforce fully the State's statutes
and regulations for regulating surface coal mining and reclamation
operations on Federal land covered by the cooperative agreement in
Indiana. We base this finding upon the written certification by the
Budget Analyst for the Division of Reclamation, Indiana Department of
Natural Resources.
3. We find that the State of Indiana has the legal authority to
administer the cooperative agreement. This finding is based upon the
written certification of the Chief Legal Counsel of the Indiana
Department of Natural Resources and on the approval of the State's
permanent regulatory program.
We reported our findings to the Secretary in a decision memorandum
and recommended approval of the cooperative agreement.
IV. Approval of the Cooperative Agreement
Based upon the approved Indiana State program, the administrative
record of this rulemaking, written comments, and our findings and
recommendations, the Secretary is entering into a permanent program
cooperative agreement with the State of Indiana. We are publishing the
signed cooperative agreement as part of this rulemaking and are
codifying it at 30 CFR Part 914. By its terms, the cooperative
agreement becomes effective on January 18, 2000.
V. Summary and Disposition of Comments
Public Comments
We requested public comments and provided an opportunity for a
public hearing on the proposed cooperative agreement. No comments were
submitted by members of the public and no one requested a public
hearing. Because no one requested an opportunity to speak at a public
hearing, we did not hold one.
Federal Agency Comments
Under 30 CFR 745.11(e), we requested comments on the cooperative
agreement from various Federal agencies with an actual or potential
interest in the Indiana program (Administrative Record No. IND-1629).
In a letter dated February 22, 1999, the U.S. Department of the
Interior Fish and Wildlife Service (FWS) stated that it has no specific
concerns about the program revision as long as it provides for an
agency coordination process that is at least as effective as the
federal process would be (Administrative Record No. IND-1631). The
cooperative agreement under Article VI. Review of Permit Application
Package, items B. and C. provides for the Division of Reclamation,
Indiana Department of Natural Resources to consult with the Federal
land management agency and to obtain comments and determinations of
other Federal agencies with jurisdiction or responsibility over Federal
lands affected by the operations proposed in coal mining permit
application packages. This provision is seen as adequately addressing
the concern raised by the FWS.
The U.S. Department of the Interior's Bureau of Land Management
(Administrative Record No. IND-1632) and the Minerals Management
Service (Administrative Record No. IND-1634) responded, in letters
dated March 2 and 4, 1999, respectively, that they have no comments.
VI. Procedural Determinations
1. Executive Order 12866--Regulatory Planning and Review
This document is not a significant rule and is not subject to
review by the Office of Management and Budget (OMB) under Executive
Order 12866.
(a) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(b) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(c) This rule does not alter the budgetary effects or entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
(d) This rule does not raise novel legal or policy issues.
2. 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.).
This rule will establish a cooperative agreement between the Department
of the Interior and the State of Indiana. The cooperative agreement
does not impose any new substantive requirements on the coal industry.
It merely authorizes the State of Indiana to regulate surface coal
mining and reclamation activities on Federal lands in Indiana instead
of the Federal government regulating these activities.
3. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million
or more. The rule only affects the State of Indiana. The costs of
carrying out the functions under the cooperative agreement are offset
by grants from the Federal government.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions because the rule does not impose any
new requirements on the coal mining industry or consumers. The
functions that will be performed by the State under the cooperative
agreement are offset by grants from the Federal government.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of the
U.S.-based enterprises to compete with foreign-based enterprises for
the reasons stated above.
4. Unfunded Mandates
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments or the private sector. The rule
establishes a cooperative agreement at the request of the State of
Indiana and will result in the delegation of authority to the State. A
statement containing the information required by the Unfunded Mandates
Reform Act (1 U.S.C. 1531 et seq.) is not required.
5. Executive Order 12630--Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. The rule establishes a cooperative
agreement at the request of the State of Indiana and will result in the
delegation of authority
[[Page 70580]]
to the State. A takings implication assessment is not required.
6. Executive Order 12612--Federalism
In accordance with Executive Order 12612, the rule does not have
significant Federalism implications to warrant the preparation of a
Federalism Assessment. The rule establishes a cooperative agreement at
the request of the State of Indiana and will result in the delegation
of authority to the State. Therefore, a Federalism assessment is not
required.
7. Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
8. Paperwork Reduction Act
This rule does not require information collection from 10 or more
parties or a submission under the Paperwork Reduction Act. An OMB form
83-I is not required.
9. National Environmental Policy Act
This rule does not require an environmental impact statement since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on 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)).
Authors: The principal author of this final rule is Andrew R.
Gilmore, Director, Office of Surface Mining, Indianapolis Field Office,
Minton-Capehart Federal Building, 575 N. Pennsylvania Street,
Indianapolis, Indiana 46204-1521.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 14, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
For the reasons given in the preamble, 30 CFR part 914 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. Section 914.30 is added to read as follows:
Sec. 914.30 State-Federal Cooperative Agreement.
State-Federal Cooperative Agreement
The Governor of the State of Indiana (Governor) and the Secretary
of the Department of the Interior (Secretary) enter into a Cooperative
Agreement (Agreement) to read as follows:
Article I: Introduction, Purposes and Responsible Agencies
A. Authority
This Agreement is authorized by section 523(c) of the Surface
Mining Control and Reclamation Act (SMCRA), 30 U.S.C. 1273(c), which
allows a State with a permanent regulatory program approved by the
Secretary under section 503 of SMCRA, 30 U.S.C. 1253, to elect to
enter into an Agreement for the State regulation of surface coal
mining and reclamation operations (including surface operations and
surface impacts incident to underground mining operations) on
Federal lands. This Agreement provides for State regulation of coal
exploration operations not subject to 43 CFR Part 3400 and surface
coal mining and reclamation operations in Indiana on Federal lands
(30 CFR Chapter VII Subchapter D), consistent with SMCRA and State
and Federal laws governing such activities and the Indiana State
Program (Program).
B. Purposes
The purposes of this Agreement are to (a) foster Federal-State
cooperation in the regulation of surface coal mining and reclamation
operations and coal exploration operations not subject to 43 CFR
Part 3400; (b) minimize intergovernmental overlap and duplication;
and (c) provide uniform and effective application of the Program on
all lands in Indiana in accordance with SMCRA, the Program, and this
Agreement.
C. Responsible Administrative Agencies
The Natural Resource Commission (NRC) and the Division of
Reclamation (DOR) of the Indiana Department of Natural Resources
will be responsible for administering this Agreement on behalf of
the Governor under the approved Indiana Regulatory Program. The
Office of Surface and Mining Reclamation and Enforcement (OSM) will
administer this Agreement on behalf of the Secretary.
Article II: Effective Date
After being signed by the Secretary and the Governor, this
Agreement will take effect 30 days after publication in the Federal
Register as a final rule. This Agreement will remain in effect until
terminated as provided in Article XI.
Article III: Definitions
The terms and phrases used in this Agreement which are defined
in SMCRA, 30 CFR Parts 700, 701 and 740, the Program, including the
OSM approved State Act (I.C. 14-34), and the rules and regulations
promulgated pursuant to those Acts, will be given the meanings set
forth in said definitions. Where there is a conflict between the
above referenced State and Federal definitions, the definitions used
in the Program will apply.
Article IV: Applicability
In accordance with the Federal lands program, the laws,
regulations, terms and conditions of the Program are applicable to
Federal lands in Indiana except as otherwise stated in this
Agreement, SMCRA, 30 CFR 740.4, 740.11(a) and 745.13, and other
applicable laws, Executive Orders, or regulations.
Article V: General Requirements
The Governor and the Secretary affirm that they will comply with
all the provisions of this Agreement.
A. Authority of State Agency: DOR and NRC have and will continue
to have the authority under State law to carry out this Agreement.
B. Funds: 1. Upon application by DOR and subject to
appropriations, OSM will provide the State with the funds to defray
the costs associated with carrying out its responsibilities under
this Agreement as provided in section 705(c) of SMCRA, the grant
agreement, and 30 CFR 735.16. Such funds will cover the full cost
incurred by DOR and NRC in carrying out these responsibilities,
provided that such cost does not exceed the estimated cost the
Federal government would have expended on such responsibilities in
the absence of this Agreement.
2. OSM's Indianapolis Field Office and OSM's Mid-Continent
Region Coordinating Center office will work with DOR to estimate the
amount the Federal government would have expended for regulation of
Federal lands in Indiana in the absence of this Agreement.
3. OSM and the State will discuss the OSM Federal lands cost
estimate. After resolution of any issues, DOR will include the
Federal lands cost estimate in the State's annual regulatory grant
application submitted to OSM's Indianapolis Field Office.
The State may use the existing year's budget totals, adjusted
for inflation and workload considerations in estimated regulatory
costs for the following grant year. OSM will notify DOR as soon as
possible if such projections are not acceptable.
4. If DOR applies for a grant but sufficient funds have not been
appropriated to OSM, OSM and DOR will promptly meet to decide on
appropriate measures that will insure that surface coal mining and
reclamation operations on Federal lands in Indiana are regulated in
accordance with the Program. If agreement cannot be reached, either
party may terminate the Agreement in accordance with Article XI of
this Agreement.
5. Funds provided to the DOR under this Agreement will be
adjusted in accordance with Office of Management and Budget Common
Rule for Uniform Administration Requirements for Grants and
Cooperative Agreements to State and Local Governments.
C. Reports and Records: DOR will make annual reports to OSM
containing information with respect to compliance with the terms of
this Agreement pursuant to 30 CFR 745.12(d). Upon request, DOR and
OSM will exchange information developed under
[[Page 70581]]
this Agreement, except where prohibited by Federal or State law.
OSM will provide DOR with a copy of any final evaluation report
prepared concerning State administration and enforcement of this
Agreement. DOR comments on the report will be appended before
transmission to the Congress, unless necessary to respond to a
request by a date certain, or to other interested parties.
D. Personnel: Subject to adequate appropriations and grant
awards, the DOR will maintain the necessary personnel to fully
implement this Agreement in accordance with the provisions of SMCRA,
the Federal lands program, and the Program.
E. Equipment and Laboratories: Subject to adequate
appropriations and grant awards, the DOR will assure itself access
to equipment, laboratories, and facilities with which all
inspections, investigations, studies, tests, and analyses can be
performed which are necessary to carry out the requirements of the
Agreement.
F. Permit Application Fees and Civil Penalties: The amount of
the fee accompanying an application for a permit for surface coal
mining and reclamation operations on Federal lands in Indiana will
be determined in accordance with the approved Indiana Program. All
permit fees, civil penalties and fines collected from operations on
Federal lands will be retained by the State and will be deposited
within the Natural Resources Reclamation Division Fund. Permit fees
will be considered program income. Civil penalties and fines will
not be considered program income. The financial status report
submitted pursuant to 30 CFR 735.26 will include a report of the
amount of fees, penalties, and fines collected on such permits
during the State's prior fiscal year.
Article VI: Review of Permit Application Package
A. Submission of Permit Application Package:
1. DOR and the Secretary require an applicant proposing to
conduct surface coal mining and reclamation operations on Federal
lands covered by this Agreement to submit a permit application
package (PAP) in an appropriate number of copies to DOR. DOR will
furnish OSM and other Federal agencies with an appropriate number of
copies of the PAP. The PAP will be in the form required by DOR and
will include any supplemental information required by OSM, the
Federal land management agency, and other agencies with jurisdiction
or responsibility over Federal lands affected by the operations
proposed in the PAP.
At a minimum, the PAP will satisfy the requirements of 30 CFR
740.13(b) and include the information necessary for DOR to make a
determination of compliance with the Program and for OSM and the
appropriate Federal agencies to make determinations of compliance
with applicable requirements of SMCRA, the Federal lands program,
and other Federal laws, Executive Orders, and regulations for which
they are responsible.
2. For any outstanding or pending permit applications on Federal
lands being processed by OSM prior to the effective date of this
Agreement, OSM will maintain sole permit decision responsibility.
After the final decision, all additional responsibilities shall pass
to DOR pursuant to the terms of this Agreement along with any
attendant fees, fines, or civil penalties therefrom.
B. Review Procedures Where There is No Leased Federal Coal
Involved:
1. DOR will assume the responsibilities for review of PAPs where
there is no leased Federal coal to the extent authorized in 30 CFR
740.4(c)(1), (2), (4), (6) and (7). In addition to consultation with
the Federal land management agency pursuant to 30 CFR 740.4(c)(2),
DOR will be responsible for obtaining, except for non-significant
revisions, the comments and determinations of other Federal agencies
with jurisdiction or responsibility over Federal lands affected by
the operations proposed in the PAP. DOR will request such Federal
agencies to furnish their findings or any requests for additional
information to DOR within 45 calendar days of the date of receipt of
the PAP. OSM will assist DOR in obtaining this information, upon
request. Responsibilities and decisions which can be delegated to
DOR under other applicable Federal laws may be specified in working
agreements between OSM and the State, with the concurrence of any
Federal agency involved, and without amendment to this Agreement.
2. DOR will assume responsibility for the analysis, review and
approval, disapproval, or conditional approval of the permit
application component of the PAP required by 30 CFR 740.13 for
surface coal mining and reclamation operations in Indiana on Federal
lands not requiring a mining plan pursuant to the Mineral Leasing
Act (MLA). DOR will review the PAP for compliance with the Program
and the OSM approved State Act and regulations. DOR will be the
primary point of contact for applicants regarding decisions on the
PAP and will be responsible for informing the applicant of
determinations.
3. The Secretary will make his determinations under SMCRA that
cannot be delegated to the State. Some of which have been delegated
to OSM.
4. OSM and DOR will coordinate with each other during the review
process as needed. OSM will provide technical assistance to DOR when
requested, if available resources allow. DOR will keep OSM informed
of findings made during the review process which bear on the
responsibilities of OSM or other Federal agencies. OSM may provide
assistance to DOR in resolving conflicts with Federal land
management agencies. OSM will be responsible for ensuring that any
information OSM receives from an applicant is promptly sent to DOR.
OSM will have access to DOR files concerning operations on Federal
lands. OSM will send to DOR copies of all resulting correspondence
between OSM and the applicant that may have a bearing on decisions
regarding the PAP. The Secretary reserves the right to act
independently of DOR to carry out his responsibilities under laws
other than SMCRA.
5. DOR will make a decision on approval, disapproval or
conditional approval of the permit on Federal lands.
(a) Any permit issued by DOR will incorporate any lawful terms
or conditions imposed by the Federal land management agency,
including conditions relating to post-mining land use, and will be
conducted in compliance with the requirements of the Federal land
management agency.
(b) The permit will include lawful terms and conditions required
by other applicable Federal laws and regulations.
(c) After making its decision on the PAP, DOR will send a notice
to the applicant, OSM, the Federal land management agency, and any
agency with jurisdiction or responsibility over Federal lands
affected by the operations proposed in the PAP. A copy of the permit
and written findings will be submitted to OSM upon request.
C. Review Procedures Where Leased Federal Coal Is involved:
1. DOR will assume the responsibilities listed in 30 CFR
740.4(c)(1), (2), (3), (4), (6) and (7), to the extent authorized.
In accordance with 30 CFR 740.4(c)(1), DOR will assume
responsibility for the analysis, review and approval, disapproval,
or conditional approval of the permit application component of the
PAP for surface coal mining and reclamation operations in Indiana
where a mining plan is required, including applications for
revisions, renewals and transfer sale and assignment of such
permits. OSM will, at the request of the State, assist to the extent
possible in this analysis and review.
DOR will be the primary point of contact for applicants
regarding the review of the PAP for compliance with the Program and
State law and regulations.
DOR will be responsible for informing the applicant of all joint
State-Federal determinations.
DOR will to the extent authorized, consult with the Federal land
management agency and the Bureau of Land Management (BLM) pursuant
to 30 CFR 740.4(c)(2) and (3), respectively. On matters concerned
exclusively with regulations under 43 CFR part 3480, Subparts 3480
through 3487, BLM will be the primary contact with the applicant.
BLM will inform DOR of its actions and provide DOR with a copy of
documentation on all decisions.
DOR will send the OSM copies of any correspondence with the
applicant and any information received from the applicant regarding
the PAP. OSM will send to DOR copies of all correspondence with the
applicant which may have a bearing on the PAP. As a matter of
practice, OSM will not independently initiate contacts with
applicants regarding completeness or deficiencies of the PAP with
respect to matters covered by the Program.
DOR will also be responsible for obtaining the comments and
determinations of other Federal agencies with jurisdiction or
responsibility over Federal lands affected by the operations
proposed in the PAP. DOR will request all Federal agencies to
furnish their findings or any requests for additional information to
DOR within 45 days of the date of receipt of the PAP. OSM will
assist DOR in obtaining this information, upon request of DOR.
DOR will be responsible for approval and release of performance
bonds under 30 CFR
[[Page 70582]]
740.4(c)(4) in accordance with Article IX of this Agreement, and for
review and approval under 30 CFR 740.4(c)(6) of exploration
operations not subject to 43 CFR Part 3480, Subparts 3480-3487.
DOR will prepare documentation to comply with the requirements
of NEPA under 30 CFR 740.4(c)(7); however, OSM will retain the
responsibility for the exceptions in 30 CFR 740.4(c)(7)(i)-(vii).
2. The Secretary will concurrently carry out his
responsibilities under 30 CFR 740.4(a) that cannot be delegated to
DOR under the Federal lands program, MLA, the National Environmental
Policy Act (NEPA), this Agreement, and other applicable Federal
laws. The Secretary will carry out these responsibilities in a
timely manner and will avoid to the extent possible, duplication of
the responsibilities of the State as set forth in this Agreement and
the Program. The Secretary will consider the information in the PAP
and, where appropriate, make decisions required by SMCRA, MLA, NEPA,
and other Federal laws.
Responsibilities and decisions which can be delegated to the
State under other applicable Federal laws may be specified in
working agreements between OSM and DOR, with concurrence of any
Federal agency involved, and without amendment to this Agreement.
Where necessary to make the determination to recommend that the
Secretary approve the mining plan, OSM will consult with and obtain
the concurrences of the BLM, the Federal land management agency and
other Federal agencies as required.
The Secretary reserves the right to act independently of DOR to
carry out his responsibilities under laws other than SMCRA or
provisions of SMCRA not covered by the Program, and in instances of
disagreement over SMCRA and the Federal lands program.
3. OSM will assist DOR in carrying out DOR's responsibilities
by:
(a) Coordinating resolution of conflicts and difficulties
between DOR and other Federal agencies in a timely manner.
(b) Assisting in scheduling joint meetings, upon request,
between State and Federal agencies.
(c) Where OSM is assisting DOR in reviewing the PAP, furnishing
to DOR the work product within 50 calendar days of receipt of the
State's request for such assistance, unless a different time is
agreed upon by OSM and DOR.
(d) Exercising its responsibilities in a timely manner, governed
to the extent possible by the deadlines established in the Program.
4. Review of the PAP:
(a) OSM and DOR will coordinate with each other during the
review process as needed. DOR will keep OSM informed of findings and
technical analyses made during the review process which bear on the
responsibilities of OSM or other Federal agencies. OSM will ensure
that any information it receives which has a bearing on decisions
regarding the PAP is promptly sent to DOR.
(b) DOR will review the PAP for compliance with the Program and
State law and regulations.
(c) OSM will review the operation and reclamation plan portion
of the permit application, and any other appropriate portions of the
PAP for compliance with the non-delegable responsibilities of SMCRA
and for compliance with the requirements of other Federal laws and
regulations.
(d) OSM and DOR will develop a work plan and schedule for PAP
review and each will identify a person as the project leader. The
project leaders will serve as the primary points of contact between
OSM and DOR throughout the review process. Not later than 50 days
after receipt of the PAP, unless a different time is agreed upon,
OSM will furnish DOR with its review comments on the PAP and specify
any requirements for additional data. To the extent practicable, DOR
will provide OSM all available information that may aid OSM in
preparing any findings.
(e) DOR will prepare a State decision package, including written
findings and supporting documentation, indicating whether the PAP is
in compliance with the Program. The review and finalization of the
State decision package will be conducted in accordance with
procedures for processing PAPs agreed upon by DOR and OSM.
(f) DOR may make a decision on approval or disapproval of the
permit on Federal lands in accordance with the Program prior to the
necessary Secretarial decision on the mining plan, provided that DOR
advises the operator in the permit that Secretarial approval of the
mining plan must be obtained before the operator may conduct coal
development or mining operations on the Federal lease. DOR will
reserve the right to amend or rescind any requirements of the permit
to conform with any terms or conditions imposed by the Secretary in
his approval of the mining plan.
(g) The permit will include, as applicable, terms and conditions
required by the lease issued pursuant to the MLA and by any other
applicable Federal laws and regulations, including conditions
imposed by the Federal land management agency relating to post-
mining land use, and those of other affected agencies, and will be
conditioned on compliance with the requirements of the Federal land
management agency with jurisdiction.
(h) After making its decision on the PAP, DOR will send a notice
to the applicant, OSM, the Federal land management agency, and any
agency with jurisdiction or responsibility over Federal land
affected by operations proposed in the PAP. A copy of the written
findings and the permit will also be submitted to OSM.
5. OSM will provide technical assistance to DOR when requested,
if available resources allow. OSM will have access to DOR files
concerning operations on Federal lands.
D. Review Procedures for Permit Revisions; Renewals; and Transfer
Assignment or Sate of Permit Rights:
1. Any permit revision or renewal for an operation on Federal
lands will be reviewed and approved or disapproved by DOR after
consultation with OSM on whether such revision or renewal
constitutes a mining plan modification pursuant to 30 CFR 746.18.
OSM will inform DOR within 30 days of receiving a copy of a proposed
revision or renewal, whether the permit revision, or renewal
constitutes a mining plan modification. Where approval of a mining
plan modification is required, OSM and DOR will follow the
procedures outlined in paragraphs C.1. through C.5. of this Article.
2. OSM may establish criteria consistent with 30 CFR 746.18 to
determine which permit revisions and renewals clearly do not
constitute mining plan modifications.
3. Permit revisions or renewals on Federal lands which are
determined by OSM not to constitute mining plan modifications under
paragraph D.1. of this Article or that meet the criteria for not
being mining plan modifications as established under paragraph D.2.
of this Article will be reviewed and approved following the
procedures set forth under Indiana law and the State Program and
paragraphs B.1. through B.5. of this Article.
4. Transfer, assignment or sale of permit rights on Federal
lands shall be processed in accordance with Indiana law and the
State Program and 30 CFR 740.13(e).
Article VII: Inspections
A. DOR will conduct inspections on Federal lands in accordance
with 30 CFR 740.4(c)(5) and prepare and file inspection reports in
accordance with the Program.
B. DOR will, subsequent to conducting any inspection pursuant to
30 CFR 740.4(c)(5), and on a timely basis, file with OSM a legible
copy of the completed State inspection report.
C. DOR will be the point of contact and primary inspection
authority in dealing with the operator concerning operations and
compliance with the requirements covered by the Agreement, except as
described hereinafter. Nothing in this Agreement will prevent
inspections by authorized Federal or State agencies for purposes
other than those covered by this Agreement. The Department of the
Interior may conduct any inspections necessary to comply with 30 CFR
parts 842 and 843 and its obligations under laws other than SMCRA.
D. OSM will give DOR reasonable notice of its intent to conduct
an inspection under 30 CFR 842.11 in order to provide State
inspectors with an opportunity to join in the inspection.
When OSM is responding to a citizen complaint of an imminent
danger to the public health and safety, or of significant, imminent
environmental harm to land, air or water resources, pursuant to 30
CFR 842.11(b)(1)(ii)(C), it will contact DOR no less than 24 hours
prior to the Federal inspection, if practicable, to facilitate a
joint Federal/State inspection. All citizen complaints which do not
involve an imminent danger or significant, imminent environmental
harm will be referred to DOR for action. The Secretary reserves the
right to conduct inspections without prior notice to DOR to carry
out his responsibilities under SMCRA.
Article VIII: Enforcement
A. DOR will have primary enforcement authority under SMCRA
concerning
[[Page 70583]]
compliance with the requirements of the Agreement and the Program in
accordance with 30 CFR 740.4(c)(5). Enforcement authority given to
the Secretary under other Federal laws and Executive orders
including, but not limited to, those listed in Appendix A (attached)
is reserved to the Secretary.
B. During any joint inspection by OSM and DOR, DOR will have
primary responsibility for enforcement procedures, including
issuance of orders of cessation, notices of violation, and
assessment of penalties. DOR will inform OSM prior to issuance of
any decision to suspend or revoke a permit on Federal lands.
C. During any inspection made solely by OSM or any joint
inspection where DOR and OSM fail to agree regarding the propriety
of any particular enforcement action, OSM may take any enforcement
action necessary to comply with 30 CFR parts 843, 845, and 846. Such
enforcement action will be based on the standards in the Program,
SMCRA, or both, and will be taken using the procedures and penalty
system contained in 30 CFR parts 843, 845, and 846.
D. DOR and OSM will promptly notify each other of all violations
of applicable laws, regulations, orders, or approved mining permits
subject to this Agreement, and of all actions taken with respect to
such violations
E. Personnel of DOR and the Department of the Interior,
including OSM, will be mutually available to serve as witness in
enforcement actions taken by either party.
F. This Agreement does not affect or limit the Secretary's
authority to enforce violations of Federal laws other than SMCRA.
Article IX: Bonds
A. DOR and the Secretary will require each operator who conducts
operations on Federal lands to submit a performance bond payable to
the State of Indiana and the United States to cover the operator's
responsibilities under SMCRA and the Program. Such performance bond
will be conditioned upon compliance with all requirements of the
SMCRA, the Program, State rules and regulations, and any other
requirements imposed by the Secretary or the Federal land management
agency. Such bond will provide that if this Agreement is terminated,
the portion of the bond covering the Federal lands will be payable
only to the United States. DOR will advise OSM of annual adjustments
to the performance bond pursuant to the Program.
B. Performance bonds will be subject to release and forfeiture
in accordance with the procedures and requirements of the Program.
Where surface coal mining and reclamation operations are subject to
an approved mining plan, a performance bond shall be released by the
State after the release is concurred in by OSM.
C. Submission of a performance bond does not satisfy the
requirements for a Federal lease bond required by 43 CFR Subpart
3474 or lessee protection bond required in addition to a performance
bond, in certain circumstances, by section 715 of SMCRA.
Article X: Designating Land Areas Unsuitable for all or Certain Types
of Surface Coal Mining and Reclamation Operations and Activities and
Valid Existing Rights (VER) and Compatibility Determinations
A. Unsuitability Petitions
1. Authority to designate Federal lands as unsuitable for mining
pursuant to a petition, including the authority to make substantial
legal and financial commitment determinations pursuant to section
522(a)(6) of SMCRA, is reserved to the Secretary.
2. When either DOR or OSM receives a petition to designate land
areas unsuitable for all or certain types of surface coal mining
operations that could impact adjacent Federal or non-Federal lands
pursuant to section 522(c) of SMCRA, the agency receiving the
petition will notify the other of its receipt and the anticipated
schedule for reaching a decision, and request and fully consider
data, information and recommendations of the other. OSM will
coordinate with the Federal land management agency with jurisdiction
over the petition area, and will solicit comments from the agency.
B. Valid Existing Rights and Compatibility Determinations
The following actions will be taken when requests for
determinations of VER pursuant to section 522(e) of SMCRA or for
determinations of compatibility pursuant to section 522(e)(2) of
SMCRA, and received prior to or at the time of submission of a PAP
that involves surface coal mining and reclamation operations and
activities:
1. For Federal lands within the boundaries of any areas
specified under section 522(e)(1) of SMCRA, OSM will determine
whether VER exists for such areas.
For private in holdings within section 522(e)(1) areas, DOR,
with the consultation and concurrence of OSM, will determine whether
surface coal mining operations on such lands will or will not affect
the Federal interest (Federal lands as defined in section 701(4) of
SMCRA). OSM will process VER determination requests on private in
holdings within the boundaries of section 522(e)(1) areas where
surface coal mining operations affects the Federal interest.
2. For Federal lands within the boundaries of any national
forest where proposed operations are prohibited or limited by
section 522(e)(2) of SMCRA and 30 CFR 761.11(b), OSM will make the
VER determinations. OSM will process requests for determinations of
compatibility under section 522(e)(2) of SMCRA.
3. For Federal lands, DOR will determine whether any proposed
operation will adversely affect any publicly owned park and, in
consultation with the State Historic Preservation Officer, places
listed in the National Register of Historic Sites, with respect to
the prohibitions or limitations of section 522(e)(3) of SMCRA. DOR
will make the VER determination for such lands using the State
Program. DOR will coordinate with any affected agency or agency with
jurisdiction over the proposed surface coal mining and reclamation
operations.
In the case that VER is determined not to exist under section
522(e)(3) of SMCRA or 30 CFR 761.11(c), no surface coal mining
operations will be permitted unless jointly approved by DOR and the
Federal, State or local agency with jurisdiction over the publicly
owned park or historic place.
4. DOR will process and make determinations of VER on Federal
lands, using the State Program, for all areas limited or prohibited
by section 522(e)(4) and (5) of SMCRA as unsuitable for mining. For
operations on Federal lands, DOR will coordinate with any affected
agency or agency with jurisdiction over the proposed surface coal
mining and reclamation operation.
Article XI: Termination of Cooperative Agreement
This Agreement may be terminated by the Governor or the
Secretary under the provisions of 30 CFR 745.15.
Article XII: Reinstatement of Cooperative Agreement
If this Agreement has been terminated in whole or in part it may
be reinstated under the provisions of 30 CFR 745.16.
Article XIII: Amendment of Cooperative Agreement
This Agreement may be amended by mutual agreement of the
Governor and the Secretary in accordance with 30 CFR 745.14.
Article XIV: Changes in State or Federal Standards
A. The Secretary or the Governor may from time to time
promulgate new or revised performance or reclamation requirements or
enforcement and administration procedures. Each party will, if it
determines it to be necessary to keep this Agreement in force,
change or revise its regulations or request necessary legislative
action. Such changes will be made under the procedures of 30 CFR
part 732 for changes to the Program and under the procedures of
section 501 of SMCRA for changes to the Federal lands program.
B. DOR and the Secretary will provide each other with copies of
any changes to their respective laws, rules, regulations or
standards pertaining to the enforcement and administration of this
Agreement.
Article XV: Changes in Personnel and Organization
Each party to this Agreement will notify the other, when
necessary, of any changes in personnel, organization and funding, or
other changes that may affect the implementation of this Agreement
to ensure coordination of responsibilities and facilitate
cooperation.
Article XVI: Reservation of Rights
This Agreement will not be construed as waiving or preventing
the assertion of any rights that have not been expressly addressed
in this Agreement that the State or the Secretary may have under
laws other than SMCRA or their regulations including but not limited
to those listed in Appendix A.
[[Page 70584]]
Dated: October 26, 1999.
Frank O'Bannon,
Governor of Indiana.
Bruce Babbitt,
Secretary of the Interior.
Appendix A
1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et
seq., and implementing regulations.
2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and
implementing regulations, including 43 CFR part 3480.
3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321
et seq., and implementing regulations, including 40 CFR part 1500.
4. The Endangered Species Act, as amended, 16 U.S.C. 1531 et
seq., and implementing regulations, including 50 CFR part 402.
5. The Fish and Wildlife Coordination Act, as amended, 16 U.S.C.
661 et seq.; 48 Stat. 401.
6. The National Historic Preservation Act of 1966, 16 U.S.C. 470
et seq., and implementing regulations, including 36 CFR part 800.
7. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing
regulations.
8. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et
seq., and implementing regulations.
9. The Resource Conservation and Recovery Act of 1976, 42 U.S.C.
6901 et seq., and implementing regulations.
10. The Reservoir Salvage Act of 1960, amended by the
Preservation of Historical and Archaeological Data Act of 1974, 16
U.S.C. et seq.
11. Executive Order 11593 (May 13, 1971), Cultural Resource
Inventories on Federal Lands.
12. Executive Order 11988 (May 24, 1977), for flood plain
protection.
13. Executive Order 11990 (May 24, 1977), for wetlands
protection.
14. The Mineral Leasing Act for Acquired Lands, 30 U.S. 351 et
seq., and implementing regulations.
15. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et
seq.
16. The Constitution of the United States.
17. Surface Mining Control and Reclamation Act of 1977, 30
U.S.C. 1201 et seq.
18. 30 CFR Chapter VII.
19. The Constitution of the State of Indiana.
20. Indiana Surface Coal Mining and Reclamation Act (P.L. 1-
1995, SEC. 27) at Ind. Code 14-34 et seq.
21. Indiana Department of Natural Resources, Coal Mining and
Reclamation Operations, Rules and Regulations, 310 Ind. Admin. Code
12.
[FR Doc. 99-32741 Filed 12-17-99; 8:45 am]
BILLING CODE 4310-05-P