[Federal Register Volume 65, Number 5 (Friday, January 7, 2000)]
[Rules and Regulations]
[Pages 1059-1063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-420]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-146-FOR; State Program Amendment No. 98-3]


Indiana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving an amendment to the Indiana regulatory program (Indiana 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Indiana proposed to add a new section to its rules. The new 
section requires permittees of coal mine operations to submit an annual 
report of affected area to the director of the Indiana Department of 
Natural Resources (IDNR). Indiana intends to revise its program to 
improve operational efficiency. We are also taking this opportunity to 
make a technical correction to 30 CFR 914.16(ii) and to remove the 
required amendments codified at 30 CFR 914.16(b) and 914.16(ii)(b).


[[Page 1060]]


EFFECTIVE DATE: January 7, 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 Proposed 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 Secretary of the Interior conditionally 
approved the Indiana program. 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, 914.16, and 914.17.

II. Submission of the Proposed Amendment

    By letter dated August 31, 1999 (Administrative Record No. IND-
1668), Indiana sent us an amendment to its program under SMCRA. Indiana 
sent the amendment at its own initiative. Indiana proposed to amend the 
Indiana Administrative Code (IAC) by adding 310 IAC 12-5-159, which 
requires permittees to submit an annual report of affected area to the 
director of IDNR.
    We announced receipt of the amendment in the September 15, 1999, 
Federal Register (64 FR 50026). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the amendment. The public comment period 
closed on October 15, 1999. Because no one requested a public hearing 
or meeting, we did not hold one.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are our findings concerning the amendment.

A. 310 IAC 12-5-159 Annual Report

    Indiana added 310 IAC 12-5-159 to require permittees of surface 
coal mining and reclamation operations to submit an annual report of 
affected area to the director of IDNR. The permittees must include 
information on mined land as well as surface disturbed land. Indiana 
defined the term ``mined land'' at subsection (a) and defined the term 
``surface disturbed land'' at subsection (b). Mined land includes land 
from which coal has been extracted, land from which overburden has been 
removed, and land upon which overburden or spoil has been deposited. 
Mined land does not include land where only auger mining has occurred. 
Surface disturbed land is land, other than mined land, that is 
disturbed by surface coal mining and reclamation operations. It 
includes areas where only topsoil is removed. When the surface 
disturbance will be reaffected by future overburden removal or 
deposition, the permittee need not report surface disturbed land in 
advance of the highwall. Subsection (c) requires permittees to submit 
an annual report of affected areas for each permit for surface coal 
mining and reclamation operations. The permittee must report acres 
mined and disturbed during the period from November 1 through October 
31 of each year. The permittee must submit the report to the Director 
of IDNR no later than 90 days after October 31 of each year. The report 
must include the name and address of the permittee and, if different 
from the permittee, the name and address of the person or persons 
conducting the mining. It must also include the permit number and a 
summary of acres mined and disturbed during the reporting period. The 
acreage summary must include acres of mined land, acres of surface 
disturbed land, and total permit acres. It must also include acres of 
coal extraction by surface, auger, and highwall mining. Subsection (d) 
requires the permittee to submit with the report a dated aerial 
photograph of the surface coal mining and reclamation operation taken 
between September 1 and December 31 of the reporting year. The 
photograph must be of the same scale as the permit maps. The photograph 
or a certified map must show the location of the permit boundary; acres 
reported; section, township, and range lines; all public roads within 
the permit area that are not permanently closed; all areas where coal 
has been removed by surface, auger, or highwall mining methods; and the 
highwall face as of November 1 of the reporting year. After all mining 
has been completed, subsection (e) requires that when the acres are 
available on a computer-aided design (CAD) or other digital data 
format, the permittee must submit a report that includes a summary of 
pre-mining land use acreage for the mined and surface disturbed area. 
Subsection (f), requires maps, whether separate from or created upon 
the photograph, to be prepared by or under the direction of and 
certified by a qualified registered professional engineer or certified 
professional geologist with assistance from experts in related fields 
such as land surveying or landscape architecture. At subsection (g), 
permits issued and land affected before the effective date of 310 IAC 
12-5-159 and for which a report of affected area has not been filed, 
the initial photograph must show all areas disturbed since permit 
issuance. The permittee does not have to distinguish between mined land 
and surface disturbed land on the initial report form, photograph, or 
map. When available, the extent of auger areas must be shown. At 
subsection (h), the permittee does not have to submit an annual report 
if no additional acres have been disturbed during the reporting year.
    There are no direct counterpart Federal regulations concerning an 
annual report of affected acreage. However, section 517(b)(1) of SMCRA 
requires the regulatory authority, for the purpose of administration 
and enforcement of a State program or permit, to require a permittee to 
establish and maintain appropriate records and to provide any 
information about surface coal mining and reclamation operations that 
is considered reasonable and necessary. Therefore, we find that 
Indiana's new section at 310 IAC 12-5-159 will not make Indiana's rules 
less stringent than SMCRA or less effective than the Federal 
regulations.

B. IC 14-34-2-6(b) and (c) Conflict of Interest; 30 CFR 914.16(b)

    By letter dated March 18, 1988 (Administrative Record No. IND-
0559A), Indiana submitted an amendment under 30 CFR 732.17. The 
amendment included Senate Enrolled Act No. 45 that revised Indiana Code 
(IC) 14-34-2-6(b) and (c) [formerly IC 13-4.1-2-3]. IC 14-34-2-6(b) 
requires that in addition to the filings required under IC 35-44-1, 
each member of the Indiana Natural Resources Commission (commission) 
must file annually with the director of the Indiana Department of 
Natural Resources (department) a statement of employment and financial 
interest on a form prescribed by the department.
    IC 14-34-2-6(c) contains a recusal provision that does not allow a 
member of the commission to participate in a proceeding that may affect 
the member's direct or indirect financial interests.
    In the December 15, 1989, Federal Register (54 FR 51388), we did 
not

[[Page 1061]]

approve the language in IC 14-34-2-6(b) because it implied that 
commission members may not be employees of the department. The 
department is the designated State regulatory authority for Indiana. We 
did not approve the language in IC 14-34-2-6(c) because it implied that 
members of the commission may have direct or indirect financial 
interests in coal mining operations. Section 517(g) of SMCRA states 
that ``[n]o employee of the State regulatory authority performing any 
function or duty under this Act shall have a direct or indirect 
financial interest in any underground or surface coal mining 
operation.'' Based on the information we had available, we found that 
members of the commission must be considered employees of the 
department. Therefore, we codified the following required amendment at 
30 CFR 914.16(b):

    By May 15, 1990, Indiana shall submit revisions to IC 13-4.1-2-3 
[IC 14-34-2-6(b) and (c)] or otherwise propose to amend its program 
to be in accordance with SMCRA at section 517(g) and consistent with 
the Federal regulations at 30 CFR Part 705 which require that no 
employee of the State regulatory authority performing any function 
or duty under SMCRA shall have a direct or indirect financial 
interest in any underground or surface coal mining operation.

    By letter dated June 4, 1999 (Administrative Record No. IND-1657), 
Indiana provided additional justification for its provisions at IC 14-
34-2-6(b) and (c). Indiana stated that there is a legal and statutory 
distinction between the department and the commission. Indiana 
referenced IC 14-10, which established the commission as a separate 
legal entity from the department and lists the commission's powers and 
duties. Indiana indicated that the function of the commission is 
somewhat analogous to that of the Indiana General Assembly, although 
each is part of a different branch of government. Indiana maintained 
that under IC 14-34-2-6(a), an employee of the ``department'' cannot 
have a direct or indirect financial interest in a surface coal mining 
operation. Further, the term ``department'' is specifically defined in 
IC 14-8-2-67 to mean the Indiana Department of Natural Resources. IC 
14-8-2-6(b) applies to the commission, whose members are required to 
file a financial statement. Indiana stated that the procedure followed 
for commission members complies with section 517(g) of SMCRA and the 
implementing regulations at 30 CFR Part 705.
    The underlying issue is whether members of the commission must be 
considered ``employees'' for purposes of conflict of interest 
reporting. Primarily, Indiana's justification statements indicate that 
the financial disclosure requirements under section 517(g) of SMCRA for 
employees of the State regulatory authority do not apply to members of 
the commission who are not employed by the department. Those members of 
the commission who are not employees would be categorized as members of 
a multi-interest commission under the Federal definition of 
``employee'' at 30 CFR 705.5. The Federal regulations at 30 CFR Part 
705 provide separate conflict of interest requirements for members of 
commissions who are not deemed employees of the State regulatory 
authority.
    After reviewing the Indiana Code and the October 17, 1986, preamble 
for changes made to 30 CFR Part 705 (51 FR 37118), we agree that there 
is a legal and statutory distinction between the department and the 
commission. We also agree that the commission represents multiple 
interests. IC 14-10-1 established the commission. The commission 
consists of 12 members, including five citizen members appointed by the 
Governor. At least two of the five citizens must have knowledge, 
experience, or education in the environment or in natural resource 
conservation. The remaining seven members are specified in the statute 
to include: the Commissioner of the Indiana Department of 
Transportation, Commissioner of the Indiana Department of Environmental 
Management, Director of the Department of Commerce, Director of the 
Indiana Department of Natural Resources, Chairman of the Advisory 
Council for the Bureau of Water and Resource Regulation, Chairman of 
the Advisory Council for the Bureau of Lands and Cultural Resources, 
and the President of the Indiana Academy of Science. The powers and 
duties of the commission are defined in IC 14-10-2 to include the 
authority to create a division of hearings, appoint administrative law 
judges, and adopt rules. The commission assumes these powers and duties 
for most of the natural resource bureaus and divisions within the 
State, including reclamation, fish and wildlife, forestry, state parks, 
and historic preservation and archeology. IC 14-9-1 created the 
department. Under IC 14-9-2 the governor must appoint the director of 
the department. The director may appoint deputy directors. However, 
under IC 14-9-7 other employees of the department are employed by the 
director through the state personnel department.
    As discussed in the preamble for changes made to 30 CFR Part 705 on 
October 17, 1986:

    The definition of employee consistently has been construed to 
exclude members of multi-interest boards and commissions even if 
those members perform decision-making functions in accordance with 
state law. . . . Such groups are not covered by Section 517(g), 
which generally prohibits decision makers from having any interest 
in coal mining operations. Under the definition of employee, members 
of a board established in accordance with State law or regulations 
to represent various interests such as the coal mining industry, 
forestry, conservation, agriculture, environmentalists, or 
landowners, would be considered multi-interest board members.

    Based on our review of the State statutes and the October 17, 1986, 
preamble discussion, we find that the members of the commission are not 
employees of the department, and we are removing the required amendment 
at 30 CFR 914.16(b).
    Indiana's statute at IC 14-34-2-6(b) requires each member of the 
commission to file an annual statement of employment and financial 
interest with the director of the Indiana Department of Natural 
Resources. This is consistent with the Federal regulation requirements 
at 30 CFR 705.11(a) for members of commissions established in 
accordance with State law to represent multiple interests. Indiana's 
statute at IC 14-34-2-6(c) stipulates that a member of the commission 
may not participate in a proceeding that may affect the member's direct 
or indirect financial interests. This is consistent with the Federal 
regulation at 30 CFR 705.4(d), which requires multi-interest commission 
members to recuse themselves from any proceeding which may affect their 
direct or indirect financial interests. Therefore, we are approving IC 
14-34-2-6(b) and (c).

C. 310 IAC 12-3-127(c)(4) Permit Reviews; Approval for Transfer, 
Assignment, or Sale of Permit Rights; 30 CFR 914.16(ii)(b)

    By letter dated September 26, 1994 (Administrative Record No. IND-
1401), Indiana submitted an amendment under 30 CFR 732.17. The 
amendment included revisions to 310 IAC 12-3-127(c)(4) that required 
the director of IDNR to not grant approval for a transfer, sale, or 
assignment of rights under a permit except upon a written finding that 
a ``surface coal mining and reclamation operation owned or control by 
the applicant is not currently in violation of a federal or state 
statute, rule, or regulation.'' In the October 29,

[[Page 1062]]

1996, Federal Register (61 FR 55743), we approved Indiana's revisions 
with the requirement, codified at 30 CFR 914.16(ii)(b), that the State 
amend the introductory paragraph of 310 IAC 12-3-127(c)(4) to include 
the phrase ``or by any person who owns or controls the applicant'' 
after the word ``applicant'' in line 3, and the phrase ``or person who 
owns or controls the applicant'' after the word ``applicant'' in line 
7. In the April 21, 1997, Federal Register (62 FR 19450), we amended 
our criteria for permit issuance at 30 CFR 773.15(b) that addressed 
ownership and control information and compliance review requirements. 
This action was taken in response to a decision by the U.S. Court of 
Appeals for the District of Columbia Circuit that invalidated the 
previous rules as inconsistent with SMCRA. The court held that SMCRA 
authorizes the regulatory authority to block issuance of a permit only 
for unabated violations incurred by the applicant or entities owned or 
controlled by the applicant, not for violations incurred by a person 
who owns or controls the permittee. Based on this court decision, we 
are removing the required amendment codified at 30 CFR 914.16(ii)(b).
    At the request of the Office of the Federal Register, we are also 
making corrections to the subparagraph numbering under 30 CFR 
914.16(ii). We are changing subparagraphs (a) through (b) to 
subparagraphs (1) through (3).

IV. Summary and Disposition of Comments

Public Comments

    OSM requested public comments on the proposed amendment, but did 
not receive any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the Indiana program (Administrative Record No. IND-1669). 
By letter dated September 20, 1999, the Mine Safety and Health 
Administration commented that the proposed regulation did not conflict 
with its regulations or policies (Administrative Record No. IND-1674).

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
agreement from the EPA for those provisions of the program amendment 
that relate to air or water quality standards issued 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.). None of the revisions that Indiana 
proposed to make in this amendment pertain to air or water quality 
standards. Therefore, we did not ask the EPA to agree on the amendment.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. IND-1669). The EPA 
did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On September 9, 1999, we requested comments on Indiana's 
amendment (Administrative Record No. IND-1669), but neither responded 
to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Indiana on August 31, 1999. We approve the rules that Indiana 
proposed with the provision that they be published in identical form to 
the rules submitted to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 914, which codify decisions concerning the Indiana 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Indiana 
to bring its program into conformity with the Federal standards. SMCRA 
requires consistency of State and Federal standards.
    We are also making some editorial corrections to 30 CFR Part 
914.16(ii) and removing the required amendments at 30 CFR Part 
914.16(b) and 914.16(ii)(b).

VI. Procedural Determinations

Executive Order 12866

    The Office of Management and Budget (OMB) exempts this rule from 
review under Executive Order 12866 (Regulatory Planning and Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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 State regulatory 
programs and program amendments 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

    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)).

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 
corresponding 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. Therefore, this rule will ensure that existing requirements 
previously published 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 corresponding Federal regulations.

Unfunded Mandates

    OSM has determined and certifies under the Unfunded Mandates Reform 
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of 
$100 million or more in any given year on local, state, or tribal 
governments or private entities.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.


[[Page 1063]]


    Dated: December 17, 1999.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
    For the reasons set out 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 914.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 914.15  Approval of Indiana regulatory program amendments.

* * * * *

------------------------------------------------------------------------
     Original amendment           Date of final
       submission date             publication      Citation/description
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      *                   *                   *                   *
                   *                   *                   *
August 31, 1999.............  January 7, 2000.....  310 12-5-159; IC 14-
                                                     34-2-6(b) and (c).
------------------------------------------------------------------------

    3. Section 914.16 is amended by removing and reserving paragraph 
(b) and revising paragraph (ii) to read as follows:


Sec. 914.16  Required program amendments.

* * * * *
    (ii) By April 28, 1997, Indiana shall submit either a proposed 
amendment or a description of an amendment to be proposed, together 
with a timetable for adoption, to address the following:
    (1) Amend the Indiana program at 310 IAC 12-3-49/83(e)(3) to add 
the requirement concerning stability analysis of each structure as is 
required by 30 CFR 780.25(f) and 784.16(f).
    (2) [Reserved]
    (3) The Director is requiring that Indiana further amend 310 IAC 
12-5-24/90(a)(9)(E) to clarify that the term ``subsection'' should be 
``clause.''

[FR Doc. 00-420 Filed 1-6-00; 8:45 am]
BILLING CODE 4310-05-P