Indiana Regulatory Program

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.

* * * * *

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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).

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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]

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