[Federal Register Volume 65, Number 108 (Monday, June 5, 2000)]
[Rules and Regulations]
[Pages 35568-35576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13972]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-149-FOR]


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 revised and recodified its procedural rules for 
adjudicatory proceedings. Indiana intends to revise its program to be 
consistent with the corresponding Federal regulations and to improve 
operational efficiency.

EFFECTIVE DATE: June 5, 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 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 Amendment

    On February 4, 2000, the Indiana Department of Natural Resources, 
Division of Reclamation (DoR), sent us a copy of revised and recodified 
procedural rules for adjudicatory proceedings under the Indiana program 
(Administrative Record No. IND-1685). These procedural rules are 
codified in the Indiana Administrative Code (IAC) at 312 IAC 3-1 and 
provide procedures for administrative review proceedings held before 
the Division of Hearings, Natural Resources Commission. The DoR 
submitted the revised procedural rules in response to a required 
program amendment that we codified at 30 CFR 914.16(ff) on October 20, 
1994 (59 FR 52906).
    We announced receipt of the amendment in the March 7, 2000, Federal 
Register (65 FR 11950). 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 April 6, 2000. 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.

[[Page 35569]]

    The Indiana rules at 312 IAC 3-1 contain procedures for 
adjudicatory proceedings held before the Indiana Natural Resources 
Commission (commission) and its administrative law judges. The rules 
provide procedures for filing and pursuing an administrative review of 
a determination by the Indiana Department of Natural Resources 
(department) under the Indiana program. These rules are also applicable 
to administrative review of decisions by the department under other 
State programs and of licensing and disciplinary actions by the Board 
of Certification of Professional Geologists. We are making findings 
only on those portions of the recodified rules that pertain to 
administrative review under the Indiana program. The term ``director'' 
in Indiana's rules refers to the ``director of the Indiana Department 
of Natural Resources.''

1. Repeal and Recodification

a. 312 IAC 3  Adjudicatory Proceedings
    We previously approved procedural rules at 310 IAC 0.6-1 for 
adjudicatory proceedings under the Indiana program. In 1996, the 
commission repealed the procedural rules at 310 IAC 0.6-1 and revised 
and recodified their substantive requirements at 312 IAC 3-1. The 
department is responsible for implementing the rules under Title 310 of 
the IAC. The commission is responsible for implementing the rules under 
Title 312 of the IAC. We find that the commission's recodification of 
its procedures for conducting adjudicatory proceedings for the Indiana 
program under its rules at Title 312 is appropriate and does not make 
Indiana's rules for administrative review proceedings less effective 
than the Federal regulations at 43 CFR Part 4.
b. 310 IAC 0.7-3-5  Delegations for Programs Administered by the 
Division of Reclamation
    We previously approved Indiana's rule at 310 IAC 0.7-3-5 concerning 
delegations for programs administered by the DoR. This rule was 
referenced in the procedural rules at 310 IAC 0.6-1-3 and was specific 
to the Indiana program. In 1996, the commission repealed this rule. 
There is no Federal counterpart to Indiana's rule at 310 IAC 0.7-3-5, 
and we find that the commission's repeal of it does not make Indiana's 
rules less effective than the Federal regulations.

2. 312 IAC 3-1-1  Administration

    Indiana's previously approved provisions at 310 IAC 0.6-1-1 
(Definitions), 0.6-1-2 (Applicability of rule), and 0.6-1-3 (Review of 
actions taken by delegates of natural resources commission) were 
revised and recodified at 312 IAC 3-1-1. Subsection (a) specifies that 
312 IAC 3-1 controls proceedings governed by Indiana Code (IC) 4-21.5 
(administrative orders and procedures) for which the commission, or an 
administrative law judge for the commission, is the ultimate authority. 
Subsection (b) allows an affected person to apply for administrative 
review under IC 4-21.5 and 312 IAC 3-1 if he or she is aggrieved by a 
determination of the director; a delegate of the director; a board, 
other than the commission when acting as the ultimate authority; a 
delegate of the board, other than an administrative law judge; or a 
person delegated authority under 312 IAC 2-2. Indiana's rule at 312 IAC 
2-2 governs delegations by the Natural Resources Commission. Subsection 
(c) defines ``division director'' as the director of the division of 
hearings of the commission.
    While there is no direct Federal counterpart to 312 IAC 3-1-1, we 
find that it is not inconsistent with the Federal regulations at 43 CFR 
Part 4. The Federal regulations at 43 CFR Part 4 provide procedures and 
practices for administrative review of most decisions made under SMCRA 
and the Federal Regulations at 30 CFR Parts 700 through 865.
    The definitions at 310 IAC 0.6-1-1 for the terms ``advisory 
council''; ``Commission''; ``Delegate''; ``Department''; ``Director''; 
``Hearing commissioner''; and ``Objections hearing'' were not 
recodified at 312 IAC 3-1. Because the Federal regulations do not 
contain similar definitions, we find that the removal of these 
definitions will not make Indiana's rules less effective than the 
Federal regulations.

3. 312 IAC 3-1-2  Ultimate Authority for the Department

    Indiana's previously approved provisions at 310 IAC 0.6-1-2.5 were 
revised and recodified at 312 IAC 3-1-2. Subsection (a) designates the 
commission as the ultimate authority for the department and any 
department board except as provided in subsection (b). Subsection (b) 
designates an administrative law judge as the ultimate authority for an 
administrative review under: (1) an order under Indiana's Surface Coal 
Mining and Reclamation Act at IC 14-34, except for a proceeding 
concerning the approval or disapproval of a permit application or 
permit renewal under IC 14-34-4-13 or for suspension or revocation of a 
permit under IC 14-34-15-7; (2) an order granting or denying temporary 
relief under IC 14-34 or an order voiding, terminating, modifying, 
staying, or continuing an emergency or temporary order under IC 4-21.5-
4; and (3) an order designated as a final order in 312 IAC 3-1-9.
    While there is no Federal counterpart to 312 IAC 3-1-2, we find 
that it is not inconsistent with the Federal regulations concerning 
administrative review at 43 CFR Part 4, and we are approving it.

4. 312 IAC 3-1-3  Initiation of a Proceeding for Administrative Review

    Indiana's previously approved provisions at 310 IAC 0.6-1-4 
(Petition for administrative review; notice of appointment of 
administrative law judge) were revised and recodified at 312 IAC 3-1-3. 
Subsection (a) provides that a proceeding before the commission under 
IC 4-21.5 is initiated when one of the following is filed with the 
Division of Hearings: a petition for review under IC 4-21.5-3-7; a 
complaint under IC 4-21.5-3-8; a request for temporary relief under IC 
14-34; a request to issue an emergency or other temporary order under 
IC 4-21.5-4 or for review of an order issued under IC 4-21.5-4; an 
answer to an order to show cause under 312 IAC 3-1-5; or a referral by 
the director of a petition for and challenge to litigation expenses 
under 312 IAC 3-1-13(g). Subsection (b) requires the division director 
to appoint an administrative law judge to conduct the proceeding as 
soon as practicable after the initiation of administrative review under 
subsection (a).
    Although there is no direct counterpart to 312 IAC 3-1-3 in SMCRA 
or the Federal regulations, we find that its provisions are consistent 
with the general requirements of the Federal regulations at 43 CFR Part 
4.

5. 312 IAC 3-1-4  Answers and Affirmative Defenses

    Indiana's previously approved provisions at 310 IAC 0.6-1-5(a) were 
revised and recodified at 312 IAC 3-1-4. Subsection (a) specifies that 
except as provided in subsection (b) and in 312 IAC 3-1-5 and 13, the 
matters contained in a pleading described in 312 IAC 3-1-3(a) are 
considered automatically denied by any other party. Subsection (b) 
provides that a party wishing to assert an affirmative defense, 
counterclaim, or cross-claim must do so, in writing, and have the 
document filed and served no later than the initial prehearing 
conference, unless otherwise ordered by the administrative law judge.
    Although there is no direct counterpart to 312 IAC 3-1-4 in SMCRA 
or the Federal regulations, we find that its provisions are consistent

[[Page 35570]]

with the general requirements of the Federal regulations at 43 CFR Part 
4.

6. 312 IAC 3-1-5  Pleadings for and Disposing of a Show Cause Order 
Issued Under the Indiana Surface Mining Control and Reclamation Act

    Indiana's previously approved provisions at 310 IAC 0.6-1-5(b) 
through (j) were revised and recodified at 312 IAC 3-1-5. Subsection 
(a) provides that 312 IAC 3-1-5 governs the suspension or revocation of 
a permit under IC 14-34-15-7. Subsection (b) requires the director (or 
a delegate of the director) to issue, to the permittee, an order of 
permit suspension or revocation under IC 14-34-15-7 if the director 
determines that a permit issued under IC 13-4.1, IC 14-34, or 310 IAC 
12 should be suspended or revoked. The order of permit suspension or 
revocation must state that: (1) a pattern of violations of IC 13-4.1, 
IC 14-34, 310 IAC 12, or any permit condition required by IC 13-4.1, IC 
14-34, or 310 IAC 12 exists and (2) the violations are either willfully 
caused by the permittee, or caused by the permittee's unwarranted 
failure to comply with IC 13-4.1, IC 14-34, 310 IAC 12, or any permit 
condition required by IC 13-4.1, IC 14-34, or 310 IAC 12. Subsection 
(b) further provides that, for the purposes of this subsection, the 
unwarranted failure of the permittee to pay any fee required under IC 
13-4.1, IC 14-34, or 310 IAC 12 constitutes a pattern of violations and 
requires the issuance of an order of permit suspension or revocation. 
Subsection (c) requires the director to serve an order of permit 
suspension or revocation by certified mail or personal delivery. 
Subsection (c) also clarifies that an order of permit suspension or 
revocation is governed by IC 4-21.5-3-6. Subsection (d) requires a 
permittee, who wants to contest an order of permit suspension or 
revocation, to file a petition for review under IC 4-21.5-3-7 within 
thirty days of his or her receipt of the order of permit suspension or 
revocation. Subsection (d) also specifies the kind of information that 
must be included in a petition for review, including whether the 
permittee wants a hearing on the order of permit suspension or 
revocation. Subsection (e) provides that if a petition for review is 
not filed by the permittee under subsection (d), the order of permit 
suspension or revocation will become an effective and final order of 
the commission without a proceeding under IC 14-34-15-7(c). Subsection 
(f) provides that if a petition for review is filed by the permittee 
under subsection (d) and a hearing on the order is sought by the 
permittee, the matter will be assigned to an administrative law judge 
for a proceeding under IC 4-21.5-3. Subsection (f) also sets out the 
burden of proof standards for the hearing. The director has the burden 
of going forward with evidence demonstrating that the permit in 
question should be suspended or revoked. The director satisfies the 
burden by establishing a prima facie case that a pattern of violations 
exists or has existed and the violations were willfully caused by the 
permittee or caused by the unwarranted failure of the permittee to 
comply with any requirements of IC 13-4.1, IC 14-34, 310 IAC 12, or any 
permit conditions required under IC 13-4.1, IC 14-34, or 310 IAC 12. If 
the director demonstrates that the permit 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.
    Subsection (g) provides that the administrative law judge will 
issue a nonfinal order if he or she determines that a pattern of 
violations exists or has existed. In this nonfinal order, the 
administrative law judge must consider the factors contained in 310 IAC 
12-6-6.5. The administrative law judge must find that sufficient 
violations occurred to establish a pattern. The nonfinal order must 
comply with the requirements of IC 4-21.5-3-27(a) through IC 4-21.5-3-
27(d) and IC 4-21.5-3-27(g). The administrative law judge may, at any 
time before the conclusion of the hearing, allow the parties to submit 
briefs and proposed findings. Subsection (h) requires the 
administrative law judge to submit the nonfinal order to the commission 
within ten days following the date that the hearing is closed or within 
ten days of the receipt of the permittee's petition for review 
submitted under subsection (d) if no hearing is requested by any party 
and it is determined that no hearing is necessary. Subsection (i) 
provides that a party must object to the findings and nonfinal order in 
writing in order to preserve for judicial review an objection to the 
nonfinal order of an administrative law judge. In its written 
objection, a party must identify the bases of the objection. The 
objection must be filed with the commission within 15 days after the 
findings and nonfinal order are served on the party. Subsection (j) 
requires the commission to enter a final order affirming, modifying, or 
vacating the administrative law judge's order of permit suspension or 
revocation. The final order of the commission must be entered within 45 
days following the issuance of the nonfinal order. The final order of 
the commission must be issued 60 days following the date that the 
hearing record is closed by the administrative law judge or 60 days 
following the administrative law judge's receipt of the permittee's 
petition for review filed under subsection (d) if no hearing was 
requested by any party and the administrative law judge determined that 
no hearing was necessary. Subsection (k) provides that the minimum 
suspension period is three working days unless the commission finds 
that imposition of the minimum suspension period would result in 
manifest injustice and would not further the purposes of IC 13-4.1, IC 
14-34, 310 IAC 12, or any permit condition required by IC 13-4.1, IC 
14-34, or 310 IAC 12. The commission may impose preconditions that the 
permittee must satisfy before the suspension is lifted. Subsection (l) 
requires the commission to serve the parties with a copy of the final 
order. A party may then apply for judicial review under IC 4-21.5.
    The commission did not recodify the provision at 310 IAC 0.6-1-5(g) 
that: ``Under IC 13-4.1-11-6(c), the administrative law judge shall 
issue the findings and a nonfinal order within sixty (60) days after 
conclusion of the hearing.'' We disapproved this provision in a 
previous final rule on October 20, 1994 (59 FR 52906), and required 
Indiana to delete the provision from its program (30 CFR 914.16(ff)). 
As noted in subsection (h), the administrative law judge must now 
submit a nonfinal order to the commission within ten days after the 
hearing closes. This will allow the commission sufficient time to issue 
the final order within the 60-day time period required by IC 14-34-15-
7(h).
    We find that the provisions at 312 IAC 3-1-5 contain adjudicatory 
proceedings for the suspension and revocation of permits that are the 
same as or similar to those contained in the Federal regulations at 30 
CFR Part 843 and 43 CFR 4.1190 through 4.1196. We also find that the 
changes made to the requirements recodified at 312 IAC 3-1-5(h) and (j) 
satisfy the required amendment at 30 CFR 914.16(ff), and we are 
removing it.

7. 312 IAC 3-1-6  Amendment of Pleadings

    Indiana's previously approved provisions at 310 IAC 0.6-1-6 were 
revised and recodified at 312 IAC 3-1-6. Subsection (a) provides for 
the amendment of petitions for administrative review filed under IC 4-

[[Page 35571]]

21.5-3-7. The various types of petitions that may to be amended are 
described in 312 IAC 3-1-3(a). A pleading may be amended once as a 
matter of course before a response is filed, but not later than the 
initial prehearing conference or 15 days before a hearing, unless 
otherwise allowed by the administrative law judge. Subsection (b) 
specifies the circumstances under which amendments in a pleading relate 
back to the date of the original pleading.
    While there is no direct Federal counterpart, we find that 312 IAC 
3-1-6 is not inconsistent with the Federal regulations at 43 CFR part 
4, and we are approving it.

8. 312 IAC 3-1-7  Filing and Service of Documents

    Indiana's previously approved provisions at 310 IAC 0.6-1-7 were 
revised and recodified at 312 IAC 3-1-7. Subsection (a) requires 
documents to be filed with the administrative law judge and served on 
all other parties. Subsection (b) allows the filing of a document with 
the administrative law judge to be performed by personal delivery, 
first class mail, certified mail, interoffice mail, fax, or electronic 
mail. Subsection (c) requires service of a document to be made upon the 
attorney or other authorized representative when a party is represented 
by an attorney or another authorized representative. If a party is not 
represented by others, service must be made upon the individual. 
Subsection (d) provides that filing or service by properly addressed, 
prepaid first class or certified mail is complete upon deposit in the 
United States mail. Filing or service by another method is complete 
upon receipt. Subsection (e) specifies that 312 IAC 3-1-7 does not 
modify the time in which a party may file objections under IC 4-21.5-3-
29 or a petition for judicial review under IC 4-21.5-5.
    We find that 312 IAC 3-1-7 contains procedures for filing and 
service of documents that are no less effective than the Federal 
regulations at 43 CFR 4.1107 and 4.1109, and we are approving it.

9. 312 IAC 3-1-8  Administrative Law Judge; Automatic Change

    Indiana's previously approved provisions at 310 IAC 0.6-1-8 were 
revised and recodified at 312 IAC 3-1-8. Subsection (a) provides that 
an automatic change of an administrative law judge may be obtained 
under 312 IAC 3-1-8. Subsection (b) provides that a party may file a 
written motion for change of the administrative law judge without 
specifically stating the grounds for the request. A party must file the 
motion within ten days after the appointment of an administrative law 
judge. Subsection (c) requires the administrative law judge to grant 
the motion filed under subsection (b) and to notify the division 
director. The division director must inform the parties of the names of 
two other individuals from whom a substitute administrative law judge 
may be selected. A party who is opposed to the party who filed the 
motion under subsection (b) may, within five days, select one of the 
individuals named by the division director to serve as the substitute 
administrative law judge. The division director must select a new 
administrative law judge if the opposing party does not make a timely 
selection. Subsection (d) specifies under what circumstances an 
automatic change of administrative law judges under this section does 
not apply. This section does not apply where a previous change of 
administrative law judge has been requested under this section. It does 
not apply to a proceeding under IC 4-21.5-4 or to temporary relief 
under IC 13-4.1. It does not apply if an administrative law judge has 
issued a stay or entered an order for disposition of all or a portion 
of the proceeding. Finally it does not apply if the commission orders a 
suspension of the section because of inadequate staffing.
    There is no direct counterpart Federal regulation. However, we find 
that 312 IAC 3-1-8 is not inconsistent with the general rules relating 
to procedures and practice at 43 CFR part 4, and we are approving it.

10. 312 IAC 3-1-9  Defaults, Dismissals, and Agreed Orders

    Indiana's previously approved provisions at 310 IAC 0.6-1-9 
(Dismissals) were revised and recodified at 312 IAC 3-1-9. Subsection 
(a) allows an administrative law judge to enter a final order of 
dismissal if the party who initiated administrative review requests the 
proceeding be dismissed. Subsection (b) allows an administrative law 
judge, on the motion of the administrative law judge or the motion of a 
party, to enter a proposed order of default or proposed order of 
dismissal under IC 4-21.5-3-24, if at least one of the following 
applies: (1) A party fails to attend or participate in a prehearing 
conference, hearing, or other stage of the proceeding; (2) the party 
responsible for taking action does not take action on a matter for a 
period of at least 60 days; (3) the person seeking administrative 
review does not qualify for review under IC 4-21.5-3-7; or (4) a 
default or dismissal could be entered in a civil action. Subsection (c) 
allows a party to file a written motion requesting the order not be 
imposed. The party must file the motion within seven days after service 
of a proposed order of default or dismissal, or within a longer period 
allowed by the proposed order. During the time within which a party may 
file a written motion, the administrative law judge may adjourn the 
proceedings or conduct them without participation of the party against 
whom a proposed default order was issued. The administrative law judge 
must consider the interest of justice and the orderly and prompt 
conduct of the proceeding before taking either action. Subsection (d) 
requires the administrative law judge to issue an order of default or 
dismissal if the party fails to file a written motion under subsection 
(c). If the party has filed a written motion under subsection (c), the 
administrative law judge may either enter or refuse to enter an order 
of default or dismissal. Subsection (e) requires the administrative law 
judge, after issuing an order of default, but before issuing a final 
order or disposition, to conduct any action necessary to complete the 
proceeding without the participation of the party in default and 
determine all issues in the adjudication, including those affecting the 
defaulting party. The administrative law judge may conduct proceedings 
under IC 4-21.5-3-23 to resolve any issue of fact. Subsection (f) 
requires an administrative law judge to approve an agreed order entered 
into by the parties if it is clear and concise and lawful. Subsection 
(g) allows the secretary of the commission to affirm the entry of an 
agreed order approved by the administrative law judge under subsection 
(f). Subsection (h) provides that a final order entered under this 
section is made with prejudice unless otherwise specified in the order. 
A person may seek judicial review of the order under IC 4-21.5-5.
    While there is no direct counterpart Federal regulation, we find 
that 312 IAC 3-1-9 is not inconsistent with the general rules relating 
to procedures and practice at 43 CFR Part 4. Therefore, we are 
approving it.

11. 312 IAC 3-1-10  Applicability of Rules of Trial Procedure and Rules 
of Evidence

    Indiana's previously approved provisions at 310 IAC 0.6-1-10 
(Applicability of rules of trial procedure) were revised and recodified 
at 312 IAC 3-1-10. This rule allows the administrative law judge to 
apply the Indiana Rules of Trial Procedure or the Indiana Rules of 
Evidence as long as they are not inconsistent with IC 4-21.5 or 312 IAC 
3-1.

[[Page 35572]]

    We find that there is no Federal counterpart to Indiana's proposed 
rule. However, we are approving 312 IAC 3-1-10 to the extent that the 
rule allows an administrative law judge to apply provisions of the 
Indiana Rules of Trial Procedures and Indiana Rules of Evidence that 
are not inconsistent with SMCRA and the Federal regulations.

12. 312 IAC 3-1-11  Conduct of Hearing; Separation of Witnesses

    Indiana's previously approved provisions at 310 IAC 0.6-1-11 
(Conduct of hearing) were revised and recodified at 312 IAC 3-1-11. 
Subsection (a) requires an administrative law judge to govern the 
conduct of a hearing and the order of proof. Subsection (b) requires 
the administrative law judge to provide for a separation of witnesses 
on a motion by a party before the commencement of testimony.
    We find that 312 IAC 3-1-11 is not inconsistent with the Federal 
regulations at 43 CFR 4.1121 concerning powers of administrative law 
judges. Therefore, we are approving the recodification and revision of 
this section.

13. 312 IAC 3-1-12  Nonfinal Order of the Administrative Law Judge; 
Oral Argument Before the Commission; Participation by Nonparties 
(Amicus Curiae); Disposition by the Secretary of State if No Objection 
Filed

    At 312 IAC 3-1-12, the commission revised and recodified Indiana's 
previously approved provisions from 310 IAC 0.6-1-12 (Recommendations 
of an administrative law judge; objections). Subsection (a) provides 
that 312 IAC 3-1-12 governs the disposition of objections under IC 4-
21.5-3-29. Subsection (b) requires a party, who wishes to contest 
whether objections provide reasonable particularity, to move, in 
writing, for a more definite statement. The administrative law judge 
may rule upon a motion filed under this subsection and any other motion 
filed subsequent to the entry of the nonfinal order, and enter an 
appropriate order (including removal of an item from the commission 
agenda). Subsection (c) requires that parties schedule objections for 
argument before the commission simultaneously with the presentation by 
the administrative law judge of findings, conclusions, and a nonfinal 
order. Unless otherwise ordered by the commission, argument must not 
exceed 10 minutes for each party and 20 minutes for each side. 
Subsection (d) allows a nonparty to file a brief with the commission 
ten days before oral argument is scheduled on objections filed under 
subsection (c). A copy of the brief must be served upon each party. The 
brief must not be more than five pages long and cannot include 
evidentiary matters outside the record. Unless otherwise ordered by the 
commission, a nonparty may also present oral argument for not more than 
five minutes in support of the brief. If more than one nonparty files a 
brief, the administrative law judge must order the consolidation of 
briefs if reasonably necessary to avoid injustice to a party. A 
nonparty who has not filed a brief at least ten days before oral 
argument is first scheduled on objections may participate in the 
argument upon the stipulation of the parties. Upon the written request 
of a party, subsection (e) requires the commission to provide the 
services of a stenographer or court reporter to record the argument. 
This request must be filed at least 48 hours before an oral argument to 
consider objections. Subsection (f) allows the secretary of the 
commission, as the commission's designee under IC 4-21.5-3-28(b), to 
affirm the findings and nonfinal order if objections are not filed. The 
secretary has exclusive jurisdiction to affirm, remand, or submit to 
the commission for final action, any findings and nonfinal order 
subject to this subsection. No oral argument will be conducted under 
this subsection unless ordered by the secretary. Subsection (g) allows 
a party to move to strike all or any part of objections, a brief by a 
nonparty, or another pleading under 312 IAC 3-1-12. The administrative 
law judge must act upon a motion filed under this subsection by 
providing relief which is consistent with IC 4-21.5 and 312 IAC 3-1.
    While there are no direct Federal counterparts to most of the 
provisions in 312 IAC 3-1-12, the Director finds that none of the 
proposed rules are inconsistent with the Federal regulations at 43 CFR 
Part 4. Therefore, we are approving them.

14. 312 IAC 3-1-13  Awards of Litigation Expenses for Specified 
Proceedings

    Indiana's previously approved provisions at 310 IAC 0.6-1-13 
(Awards of litigation expenses for proceedings under surface coal mine 
reclamation law, oil and gas code, and entomology and plant pathology 
code) were revised and recodified at 312 IAC 3-1-13. Subsection (a) 
provides that 312 IAC 3-1-13 governs an award of costs and expenses 
reasonably incurred, including attorney fees, under IC 14-22-26-5, IC 
14-24-11-5, IC 14-34-15-10, or IC 14-37-13-7. We are considering in 
this final rule those provisions for award of costs and expenses that 
pertain to Indiana's surface coal mining program under IC 14-34-15-10. 
The provisions at subsections (b) and (c) do not pertain to the Indiana 
program. The provisions at paragraphs (d), (e), (f), and (g) are 
applicable to administrative review proceedings under IC 14-34-15-10.
    Subsection (d) provides that appropriate costs and expenses, 
including attorney fees, may be awarded under IC 14-34-15-10 in five 
instances. First, litigation costs and expenses may be awarded to any 
person from the permittee; but, the person must initiate or participate 
in an administrative proceeding reviewing enforcement. Also, a finding 
must be made by the administrative law judge or commission that a 
violation of IC 14-34, a rule adopted under IC 14-34, or a permit 
issued under IC 14-34 has occurred or that an imminent hazard existed 
and the person made a substantial contribution to the full and fair 
determination of the issues. However, a contribution of a person who 
did not initiate a proceeding must be separate and distinct from the 
contribution made by a person initiating the proceeding. Second, 
litigation costs and expenses may be awarded by the department to a 
person, other than a permittee or the permittee's authorized 
representative, who initiates or participates in a proceeding. The 
person must prevail in whole or in part, achieving at least some degree 
of success on the merits. A finding must also be made indicating that 
the person made a substantial contribution to a full and fair 
determination of the issues. Third, litigation costs and expenses may 
be awarded by the department to a permittee if the permittee 
demonstrates that the department issued the following orders in bad 
faith and for the purpose of harassing or embarrassing the permittee: a 
cessation order, a notice of violation, or an order to show cause why a 
permit should not be suspended or revoked. Fourth, litigation costs and 
expenses may be awarded to a permittee from a person, where the 
permittee demonstrates that the person initiated a proceeding under IC 
14-34-15 or participated in the proceeding in bad faith and for the 
purpose of harassing or embarrassing the permittee. Finally, litigation 
costs and expenses may be awarded to the department from a person, 
where the department demonstrates that the person sought administrative 
review or participated in a proceeding in bad faith and for the purpose 
of harassing or embarrassing the department. We find that the 
provisions of 312 IAC 3-1-12(d) are

[[Page 35573]]

substantively identical to 43 CFR 4.1294(a)(1) and (b) through (e).
    Subsection (e) allows the commission to order a person requesting a 
hearing to pay the cost of the court reporter if the person requesting 
the hearing fails, after proper notice, to appear at the hearing. 
Although there is no Federal counterpart to 312 IAC 3-1-13(e), we find 
that the provision is reasonable and is not inconsistent with SMCRA and 
the Federal regulations. Therefore, we are approving it.
    Subsection (f) specifies the factors that the commission must 
consider in determining what is a reasonable amount of attorney fees. 
The factors include: (1) The nature and difficulty of the proceeding; 
(2) the time, skill, and effort involved; (3) the fee customarily 
charged for similar legal services; (4) the costs involved in the 
proceeding; and (5) the time limitations imposed by the circumstances. 
For a party whose attorney is a full-time, salaried employee of the 
party, consideration also must be given to the prorated cost of the 
salary of the attorney and of the clerical or paralegal employees of 
the party who assisted the attorney. The employee benefits attributable 
to the time devoted to representation must also be considered. Although 
there are no direct Federal counterparts to all the factors listed in 
312 IAC 3-1-13(f), we find that the provisions are reasonable and 
consistent with the Federal regulations at 43 CFR 4.1292(a)(3), and we 
are approving them.
    Subsection (g) requires a party who wishes to seek litigation 
expenses to petition the director within 30 days after the party 
receives notice of the final agency action. A party wishing to 
challenge the petition for an award must deliver a written response to 
the director within 15 days of service of the petition. If a petition 
for seeking litigation expenses and a challenge of the petition for 
award are delivered to the director under this subsection, the director 
must refer the matter to the division of hearings so that a proceeding 
may be conducted under IC 4-21.5. The Federal regulation at 43 CFR 
4.1291 allows a petition for fees to be filed within 45 days of receipt 
of the final agency action. While the time limit for filing is shorter 
under the Indiana rule, we find that the proposed time period is still 
reasonable and that 312 IAC 3-1-13(g) is no less effective than the 
Federal regulation. We are, therefore, approving the provisions.

15. 312 IAC 3-1-14  Court Reporter; Transcripts

    Indiana's previously approved provisions at 310 IAC 0.6-1-14 were 
revised and recodified at 312 IAC 3-1-14. Subsection (a) requires the 
commission to employ and engage the services of a stenographer or court 
reporter, either on a full-time or a part-time basis, to record 
evidence taken during a hearing. Subsection (b) allows a party to 
obtain a transcript of the evidence by submitting a written request to 
the administrative law judge. Subsection (c) requires the party who 
requests a transcript under subsection (b) to pay the cost of the 
transcript. Subsection (d) provides that, upon a written request by a 
party filed at least 48 hours before a hearing, a court reporter who is 
not an employee of the commission will be engaged to record a hearing.
    We find that 312 IAC 3-1-14 is no less effective than the Federal 
regulation at 43 CFR 4.23 that contains provisions for hearing 
transcripts.

16. 312 IAC 3-1-15  Quasi-declaratory Judgments

    Indiana's previously approved provisions at 310 IAC 0.6-1-15 
(Special status determinations) were revised and recodified at 312 IAC 
3-1-15. Subsection (a) allows a person to request the department to 
interpret a statute or rule administered by the department as 
applicable to a specific factual circumstance. The request must be in 
writing and must describe with reasonable particularity all relevant 
facts. The request must cite with specificity the statutory or rule 
sections in issue. The request must identify any other person who may 
be affected by a determination of the request. Finally the request must 
describe the relief sought. Subsection (b) allows the director or the 
director's delegate to provide a written response to the request. The 
written response must be provided within 45 days of the request. The 
response may include an interpretation based upon the information 
provided in the request or may specify additional information needed to 
respond to the request. If the department needs additional information, 
it has an additional 45 days in which to respond. Subsection (c) 
provides that if the department does not respond within the periods 
described in subsection (b), a general denial of the request is deemed 
to have resulted. Subsection (d) allows the person who is seeking the 
request under subsection (a) to file a petition for administrative 
review under IC 4-21.5-3 if he or she is aggrieved by the response of 
the department under subsection (b) or a general denial under 
subsection (c). The department's response constitutes a determination 
of status under IC 4-21.5-3-5(a)(5). Subsection (e) provides that 312 
IAC 3-1-15 does not excuse a person from a requirement to exhaust 
another administrative remedy provided by statute or rule. A person may 
not use this section to void or modify a final order entered by the 
department in another proceeding. A request under this section does not 
extend any time limitation imposed on the availability of another 
administrative remedy. A final order of the department under this 
section, which follows a contested proceeding under IC 4-21.5-3, 
provides the same precedent as a final order following any other 
contested proceeding under IC 4-21.5-3.
    While there are no Federal counterparts to the provisions in 312 
IAC 3-1-15, we find that the proposed rule is not inconsistent with 
SMCRA or the Federal regulations, and we are approving it.

17. 312 IAC 3-1-16  Continuances

    Indiana's previously approved provisions at 310 IAC 0.6-1-16 were 
revised and recodified at 312 IAC 3-1-16. Subsection (a) provides that 
upon the motion of a party, a hearing may be continued by the 
administrative law judge and shall be continued upon a showing of good 
cause. Subsection (b) requires that a motion to continue a hearing 
because of the absence of evidence must be made by affidavit. The 
affidavit must show the materiality of the evidence expected to be 
obtained; that due diligence has been used to obtain the evidence; and 
where the evidence may be. If the motion is based on the absence of a 
witness, the party's affidavit must show: the name and residence of the 
witness, if known; the probability of procuring the testimony in a 
reasonable time; that absence of the witness was not procured by the 
party nor by others at the request, knowledge, or consent of the party; 
what facts the party believes to be true; and that the party is unable 
to prove the facts by another witness whose testimony can be readily 
procured. Subsection (c) provides that the hearing shall not be 
continued if, upon the receipt of a continuance motion under subsection 
(b), the adverse party stipulates to the truth of the facts which the 
party seeking the continuance said could not be presented.
    There is no direct Federal counterpart to Indiana's proposed rule. 
However, we find that the provisions of 312 IAC 3-1-16 are not 
inconsistent with the Federal regulations at 43 CFR 4.1112, concerning 
motions, or the Federal regulations at 43 CFR 4.1121, concerning powers 
of administrative law judges. Therefore, we are approving them.

[[Page 35574]]

18. 312 IAC 3-1-17  Record of Proceedings; Adjudicative Hearings 
Generally; Record of the Director for Surface Coal Mining Permits

    Indiana's previously approved provisions at 310 IAC 0.6-1-17 were 
revised and recodified at 312 IAC 3-1-17. Subsection (a) provides that 
the record required to be kept by an administrative law judge under IC 
4-21.5-3-14 commences when a proceeding is initiated under 312 IAC 3-1-
3(a) and includes the items described in IC 4-21.5-3-33. Subsection (b) 
provides that in addition to subsection (a), this subsection applies to 
a proceeding concerning the approval or disapproval of a permit 
application, permit revision application, or permit renewal application 
under IC 14-34-4-13. However, nothing in this subsection precludes the 
admission of testimony or exhibits that are limited to the explanation 
or analysis of materials included in the record before the director. 
Neither does this subsection preclude the manner in which the materials 
were applied, used, or relied upon in evaluating the application. Upon 
a timely objection made before or during a hearing, the administrative 
law judge shall exclude testimony or exhibits that are offered but that 
identify or otherwise address matters that are not part of the record 
before the director under IC 14-34-4-13. The record before the director 
includes: (1) The permit; (2) the permit application as defined at 310 
IAC 12-0.5-10; (3) documentation given or referenced, in writing, by 
the applicant or an interested person for the purposes of evaluating, 
or documentation used by the department to evaluate, the application; 
(4) the analyses of the department in considering the application, 
including the expertise of the department's employees and references 
used to evaluate the application; (5) documentation received under IC 
14-34-4, including the conduct and results of any informal conference 
or public hearing under IC 14-34-4-6; and (6) correspondence received 
or generated by the department relative to the application, including 
letters of notification, proofs of filing newspaper advertisements, and 
timely written comments from an interested person.
    Section 514(c) of SMCRA and the Federal regulations at 30 CFR 
775.11(b)(1) require that hearings conducted by State regulatory 
authorities on permitting decisions must be of record and adjudicatory 
in nature. Indiana's proposed rule meets these standards. Therefore, we 
find that 312 IAC 3-1-17 is no less stringent than SMCRA and no less 
effective than the Federal regulations.

19. 312 IAC 3-1-18  Petitions for Judicial Review

    Indiana added a new section to its procedural rules at 312 IAC 3-1-
18. We are considering in this final rule only those provisions in 312 
IAC 3-1-18 that pertain to the Indiana program under IC 14-34. 
Subsection (a) requires a person, who wishes judicial review of a final 
agency action entered under 312 IAC 3-1, to serve copies of a petition 
for judicial review upon the persons described in IC 4-21.5-5-8. 
Subsection (b) provides the address for sending a copy of the petition 
that IC 4-21.5-5-8(a)(1) requires to be served upon the ultimate 
authority for an administrative review. The address applies whether the 
commission or an administrative law judge is the ultimate authority. 
Where the department is a party to a proceeding under this rule, 
subsection (c) provides the address for sending a copy of the petition 
that IC 4-21.5-5-8(a)(4) requires to be served upon a party to a 
proceeding. The provisions at subsection (d) do not pertain to the 
Indiana program. Subsection (e) clarifies that the commission and its 
administrative law judge provide the forum for administrative review 
under this rule and that neither is a party.
    Section 526(e) of SMCRA and the Federal regulations at 30 CFR 
775.13(b) require that the actions of the State regulatory authority 
under an approved State program be subject to judicial review by a 
court of competent jurisdiction in accordance with State law. We find 
that 312 IAC 3-1-18 is not inconsistent with the requirements of 
section 526(e) of SMCRA or the Federal regulations at 30 CFR 775.13(b), 
concerning judicial review of a final agency action.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On February 29, 2000, under section 503(b) of SMCRA and 30 CFR 
732.17(h)(11)(i) of the Federal regulations, we requested comments on 
the amendment from various Federal agencies with an actual or potential 
interest in the Indiana program (Administrative Record No. IND-1687. We 
did not receive any comments.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the 
written concurrence of 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 for its 
concurrence.
    On February 29, 2000, under 30 CFR 732.17(h)(11)(i), we requested 
comments on the amendment from the EPA (Administrative Record No. IND-
1687). 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 for amendments that may have an effect on historic 
properties. On February 29, 2000, we requested comments on Indiana's 
amendment (Administrative Record No. IND-1687), but neither responded 
to our request.

Public Comments

    OSM requested public comments on the proposed amendment. By letter 
dated April 5, 2000, the Indiana Coal Council, Inc. (ICC) submitted 
comments in support of the amendment. The ICC commented that the 
Natural Resources Commission's Division of Hearings has earned a good 
reputation for impartiality and professionalism in its handling of 
administrative proceedings. The ICC believes that recodification and 
transfer of the Division of Hearings' procedural rules for 
administrative review proceedings from under the Indiana Department of 
Natural Resources' (IDNR) rules at Title 310 to under the Indiana 
Natural Resources Commission's rules at Title 312, ``has further 
strengthened and guaranteed the independence of the administrative law 
judges from the IDNR program staff.'' The ICC further commented that 
the recodification does not represent any significant substantive 
changes in the procedural rules applicable to legal proceedings under 
the Indiana program and the amendment should be approved.
    As discussed above under III. Director's Finding, we are approving 
Indiana's proposed amendment.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Indiana on February 4, 2000. To implement this decision, we are 
amending the Federal regulations at 30 CFR Part 914, which codify 
decisions concerning the Indiana program. We are

[[Page 35575]]

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.

VI. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary under SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget 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.

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.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the State submittal 
which is the subject of this rule is based upon counterpart Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation was not considered a major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 17, 2000.
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 submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
*                  *                  *                  *
                                     *
February 4, 2000..............  June 5, 2000.....  310 IAC 0.6-1-1
                                                    through 17
                                                    [repealed]; 310 IAC
                                                    0.7-3-5 [repealed];
                                                    312 IAC 3-1-1
                                                    through 18.
------------------------------------------------------------------------


[[Page 35576]]

Sec. 914.16  [Amended]

    3. Section 914.16 is amended by removing and reserving paragraph 
(ff).
[FR Doc. 00-13972 Filed 6-2-00; 8:45 am]
BILLING CODE 4310-05-P