Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

Indiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Indiana permanent

regulatory program (hereinafter referred to as the Indiana program)

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The amendment (Program Amendment Number 93-3) consists of revisions to

Indiana's Surface Coal Mining and Reclamation Rules concerning

delegation of authority, ultimate authority, conduct of certain

proceedings and record keeping by the administrative law judge (ALJ).

The amendment is intended to revise the Indiana Administrative Code

(IAC) rules to implement statutory changes contained in the 1991 Senate

Enrolled Act (SEA) 154.

EFFECTIVE DATE: July 15, 1994.

FOR FURTHER INFORMATION CONTACT:

Mr. Roger W. Calhoun, Director, Indianapolis Field Office, Office of

Surface Mining Reclamation and Enforcement, Minton-Capehart Federal

Building, 575 North Pennsylvania Street, Room 301, Indianapolis, IN

46204, Telephone (317) 226-6166.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program

II. Submission of the Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Indiana Program

On July 29, 1982, the Indiana program was made effective by the

conditional approval of the Secretary of the Interior. Information

pertinent to the general background on the Indiana program, including

the Secretary's findings, the disposition of comments, and a detailed

explanation of the conditions of approval of the Indiana program can be

found in the July 26, 1982 Federal Register (47 FR 32107). Subsequent

actions concerning the conditions of approval and program amendments

are identified at 30 CFR 914.10, 914.15, and 914.16.

II. Submission of the Amendment

By letter dated June 4, 1991 (Administrative Record Number IND-

0894), the Indiana Department of Natural Resources (IDNR) submitted a

proposed amendment to the Indiana program concerning statutes enacted

by Indiana under SEA 154 from the 1991 Indiana Legislative Session. The

amendments included provisions concerning requirements for hearings,

and changes in the responsibilities of the director of the IDNR and the

Natural Resources Commission (NRC). OSM approved the proposed

amendments on June 23, 1992 (57 FR 27928).

By letter dated April 2, 1993 (Administrative Record Number IND-

1217), Indiana submitted proposed program amendment number 93-3.

Program amendment 93-3 consists of changes to the Indiana rules

concerning delegation of authority, ultimate authority, conduct of

certain proceedings, and record keeping by the ALJ. The changes to the

Indiana rules reflect the statutory changes contained in the 1991 SEA

154 discussed above.

OSM announced receipt of the proposed amendment in the April 23,

1993, Federal Register (58 FR 21693), and, in the same notice, opened

the public comment period and provided opportunity for a public hearing

on the adequacy of the proposed amendment. The comment period closed on

May 24, 1993. Upon review of the proposed amendments, OSM identified

additional changes to the rules which had not been previously reviewed

and approved by OSM. On September 21, 1993, OSM reopened the public

comment period and invited public comment on those changes which were

not previously identified as amendments subject to public comment (58

FR 48996). The public comment period closed on October 6, 1993. OSM

reopened the public comment period on March 28, 1994 (59 FR 14375),

after Indiana submitted a version of the amendment which differed from

the original submittal. The public comment period closed on April 12,

1994.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment to the Indiana program. Revisions which are not

discussed below concern nonsubstantive wording changes, or revise

paragraph notations to reflect organizational changes resulting from

this amendment.

1. 310 IAC 0.6-1-2 Applicability of Rule

(a) Subsection 2(a) is amended by replacing the term ``department''

with the term ``commission.'' In effect, under this amendment,

administrative law judges conduct proceedings for the NRC rather than

the IDNR. Under Public Law 28-199, SEA 362 (referred to as the

``Sunset'' law), Indiana amended Indiana Code (IC) IC 14-3-3-3(e) to

provide that the Indiana NRC shall appoint administrative law judges.

The proposed amendment, therefore, is consistent with IC 14-3-3-3(e) as

amended by SEA 362. OSM approved the amendments to IC 14-3-3-3(e) made

by SEA 362 on August 2, 1991 (56 FR 37016). While there is no direct

Federal counterpart to the proposed provision at subsection 2(a), the

Director finds the proposed amendment is not inconsistent with SMCRA

section 503 concerning the establishment of State programs.

(b) Subsection 2(b) is amended to provide that 310 IAC 0.6-1-8 and

310 IAC 0.6-1-12 do not apply if the ALJ is the NRC. The proposed

language does not render the Indiana program less effective for the

following reasons. 310 IAC 0.6-1-8 pertains to automatic changes of the

ALJ. Since the NRC is the ultimate authority for the IDNR, the

provision at 310 IAC 0.6-1-8 concerning automatic changes of the ALJ

would not apply. 310 IAC 0.6-1-12 also would not apply because section

310 IAC 0.6-1-12 only pertains to orders from other than the ultimate

authority. While there is no direct Federal counterpart to the proposed

provision at 2(b), the Director finds the proposed amendment is not

inconsistent with SMCRA section 503.

(c) This new subsection provides that 310 IAC 0.6-1-12, concerning

objections to recommendations of an ALJ, does not apply if IC 4-21.5-4

concerning emergency orders, or if sections 310 IAC 0.6-1-2.5(b)

concerning administrative reviews by an ALJ, or (c) concerning final

orders by an ALJ apply. Additionally, the proposed language provides

that a party may seek judicial review under IC 4-21.5-5 of a final

order made by an ALJ under 310 IAC 0.6-1-2.

There is no direct Federal counterpart to the proposed language.

The Director finds, however, that the proposed language is not

inconsistent with SMCRA because the public has the right to appeal

decisions by the regulatory authority under IC 4-21.5-5 concerning

judicial review.

2. 310 IAC 0.6-1-2.5 Ultimate Authority

This new section is added to provide at subsection 2.5(a) that the

NRC is the ultimate authority for the IDNR for proceedings under rule

310 IAC 0.6-1, except as provided in subsections 2.5 (b) and (c). In

subsection 2.5(b), the ALJ is the ultimate authority for administrative

reviews under IC 13-4.1 or 310 IAC 12, except for proceedings

concerning the approval or disapproval of a permit application or

permit renewal under IC 13-4.1-4-5 and proceedings for suspension or

revocation of a permit under IC 13-4.1-11-6. In subsection 2.5(c), an

order made by an ALJ granting or denying temporary relief from a

decision of the director of the IDNR is a final order of the

department.

The proposed language is consistent with the Indiana provisions

contained in its ``Sunset law'' (Pub. L. 28-199, SEA 362). While there

is no Federal counterpart to section 2.5, the Director finds that the

proposed language is not inconsistent with SMCRA section 503 concerning

the establishment of State programs.

3. 310 IAC 0.6-1-17 Record of Proceedings

This new section is added to provide (in subsection 17(a)) that the

record required to be kept by an ALJ under IC 4-21.5-3-14 commences

with the filing of one of the following with the director of the IDNR:

(1) A petition for administrative review under IC 4-21.5-3-7; (2) a

complaint under IC 4-21.5-3-8; (3) a proceeding before an ALJ under IC

4-21.5-4.

New subsection 17(b) provides that the record required to be kept

by an ALJ consists of the official record as set forth in IC 4-21.5-3-

33.

New subsection 17(c) provides that in addition to subsections 17

(a) and (b), subsection 17(c) applies to proceedings concerning the

approval or disapproval of a permit application, permit revision

application, or permit renewal under IC 13-4.1-4-5.

Upon a timely objection before or during a hearing, the ALJ shall

exclude testimony or exhibits which are offered but which identify or

otherwise address matters which were not part of the ``record before

the director'' under IC 13-4.1-4-5. The ``record before the director''

includes each of the following: (1) The permit; (2) the permit

application; (3) documentation tendered or referenced in writing by the

applicant or an interested person for the purposes of evaluating, or

used by the IDNR to evaluate the application; (4) the analyses of the

IDNR in considering the application, including the expertise of the

IDNR's employees and references used to evaluate the application; (5)

documentation received under IC 13-4.1-4-2, including the conduct and

results of any informal conference or public hearing under IC 13-4.1-4-

2(c); (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.

Upon review of the amendment, OSM informed Indiana that the

proposed language at subsection 17(c) appears to limit the record

before the director of the IDNR (director) to a degree which would

prevent a full public hearing on the application. In response to OSM's

concerns, Indiana stated that the State differs with OSM's

interpretation of both the intent and application of the proposed

language (Administrative Record Number IND-1311).

Indiana stated that the Division of Reclamation of the IDNR agrees

with OSM that evidence ``created after an agency decision, or otherwise

not fairly available to the proponent prior to that decision, is

important in determining the propriety of the issuance or denial of a

permit.'' Indiana further stated that ``[E]xclusion of valid evidence

which was not fairly available prior to the agency action would deny

aggrieved individuals a fair opportunity to present evidence and

arguments regarding a particular permit application'' and would

``thwart the fundamental protection purpose of SMCRA.''

In order to clarify the Division's interpretation, Indiana stated

that ``[i]t is not our interpretation that a party should be afforded

unlimited license to submit any and all `evidence' which that party

believes relevant.'' ``Clearly,'' the State asserted, ``any information

before the agency during the initial decision making process is

relevant in a subsequent administrative review proceeding.''

``However,'' the State added, ``a party should not be permitted to `sit

on their rights' during the entire permit review and public comment

periods, thereby denying the reviewing agency the benefit of crucial

information, and subsequently challenge the propriety of the agency

decision based upon information withheld by the `aggrieved' party.''

(Administrative Record No. IND-1311).

In a letter to Indiana dated February 2, 1994 (Administrative

Record Number IND-1353), OSM stated its agreement with Indiana's

concerns as noted above. However, despite the Division's interpretation

of what should or should not be included in the record before the

director, OSM stated that it appears that it would be the ALJ, and not

the Division of Reclamation, which would decide what evidence could or

could not be considered at a hearing or a pre-hearing conference. The

ALJ's would decide these issues when presented with objections to the

admission of evidence alleged to be outside of the record made before

the director.

In response, Indiana stated in a letter dated February 18, 1994

(Administrative Record Number IND-1337), that it disagreed with OSM's

interpretation that a plain language reading of the proposed language

at 310 IAC 0.6-1-17(c) requires exclusion of evidence generated after a

decision, or not fairly available in advance of the agency decision.

Instead, Indiana offered reasons why it believes the proposed language

affords sufficient flexibility to permit the introduction of such

evidence.

Indiana asserted that the proposed language provides that

subsections 17 (a) and (b) apply to permit review proceedings.

Subsection 17(b) states that the ``record'' includes the ``official

record'' under IC 4-21.5-3-33. IC 4-21.5-3-33(b)(4) provides, in part,

that the agency record includes ``evidence received or considered.''

``Similarly,'' the State asserts, ``IC 4-21.5-3-33(b)(6) provides that

the agency record includes proffers of proof and objections and rulings

on them.'' The Division of Reclamation interprets the above-referenced

provisions as being sufficiently general to allow the introduction of

evidence generated after, or not fairly available in advance of the

agency decision under review.

Indiana noted that 310 IAC 0.6-1-17(c) provides that ``* * *

nothing in this subsection precludes the admission of testimony or

exhibits which are limited to an explanation or analysis of materials

included in the record before the director, or the manner in which the

materials were applied, used, or relied upon in evaluating the

application.'' The Division of Reclamation interprets this provision

``as providing sufficient flexibility to permit the introduction of

evidence generated after, or not fairly available in advance of the

agency decision as explanation or analysis evidence.'' (Administrative

Record No. IND-1337).

The Director agrees that the provisions cited by Indiana could

indeed be interpreted as to allow the introduction of some evidence

generated after, or not fairly available in advance of the agency

decision. Again, however, the ALJ's will be charged with interpreting

this regulation, not the IDNR.

Subsection 514(c) of SMCRA and 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 meets

those standards. Consequently, Indiana's proposed language is no less

stringent than SMCRA and no less effective than the Federal

regulations. The Director understands that under this rule some

evidence and documentation could be ruled inadmissible by an ALJ in a

post-decisional hearing. However, this rule does not prevent such

evidence and documentation from being remanded by an ALJ to the

regulatory authority for analysis and reconsideration of its permit

decision. In this way, evidence submitted which is deemed relevant and

important to a permit decision can be considered, while at the same

time assuring that permit decisions remain in the hands of the

regulatory authority.

4. 310 IAC 0.6-1-9 Defaults, Dismissals, Agreed Orders, and Consent

Decrees

Subsection 9(a) has been amended to provide that an ALJ may, on its

own motion or the motion of a party, enter a nonfinal order of default

or dismissal, as appropriate, and submit the nonfinal order to the

secretary of the NRC for final action if any of the described

conditions are met. Prior to this amendment, the rule only provided for

nonfinal orders of dismissal by the ALJ. New subsection 9(a)(3) is

added to provide that the ALJ may enter a nonfinal order of default or

dismissal where the party which initiated the administrative review

requests the proceeding be dismissed, and every other party joins or

acquiesces in the dismissal. In addition, new subsection 9(a)(4) is

added to provide that where the ALJ may enter a nonfinal default or

dismissal order, a default or dismissal could be entered in a civil

action.

New subsection 9(b) provides that an ALJ shall approve an agreed

order or consent decree entered by the parties, if it is: (1) Clear and

concise; and (2) lawful.

New subsection 9(c) provides that an ALJ may enter a nonfinal order

of default or a nonfinal order of involuntary dismissal only following

the issuance of a proposed order of default or proposed order of

dismissal under IC 4-21.5-3-24.

New subsection 9(d) provides that the secretary of the NRC, as the

designee of the NRC under IC 4-21.5-3-28(b), may affirm the entry of a

nonfinal default order, dismissal order, or consent decree. The

secretary of the NRC has exclusive authority to approve, remand, or

submit to the commission for final action, any nonfinal order or decree

entered by an ALJ under section 310 IAC 0.6-1-9. A party which opposes

the entry of a final order by the secretary of the NRC must file a

written objection, and the ALJ and any other party may file a written

response to the objection.

Subsection 9(e) is amended to provide that an order of default,

order of dismissal, agreed order, or consent decree made by the

secretary of the NRC is a final order of the IDNR and is made with

prejudice, unless otherwise specified in the order or decree. Prior to

the proposed amendment, the rule did not include an order of default by

the Secretary as a final order of the IDNR, nor did it specify the

secretary of the NRC as the designee of the IDNR for purposes of

issuing final orders.

New subsection 9(f) provides that an order of default, order of

dismissal, agreed order, or consent decree made by an ALJ, where acting

as the ultimate authority for the IDNR under section 310 IAC 0.6-1-

2.5(b), is a final order of the department unless otherwise specified

in the order or decree. A person may seek judicial review of a final

order entered under 310 IAC 0.6-1-9(f) as provided in IC 4-21.5-5.

There are no direct counterparts to the proposed rules. The

Director finds, however, that the proposed rules are not inconsistent

with SMCRA at section 514 concerning decisions of the regulatory

authority and appeals, and the Federal regulations at 30 CFR Part 775

concerning administrative and judicial review of decisions.

IV. Summary and Disposition of Comments

Federal Agency Comments

Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i),

comments were solicited from various interested Federal agencies. No

agency comments were received concerning the proposed amendments to the

Indiana program.

Public Comments

The public comment period and opportunity to request a public

hearing was announced in the April 23, 1993, Federal Register (58 FR

21693). The comment period closed on May 24, 1993. The public comment

period was reopened on September 21, 1993 (58 FR 48996) and again on

March 28, 1994 (59 FR 14375). These comment periods closed on October

6, 1993, and April 12, 1994, respectively. No one requested an

opportunity to testify at the scheduled public hearing so no hearing

was held. The Indiana Coal Council, Inc. (ICC) commented in support of

the proposed amendments.

Ms. F. K. Harris commented that the proposed amendment at 310 IAC

0.6-1-17(c), which authorizes the ALJ to exclude testimony or exhibits

which are offered but which identify matters which were not part of the

``record before the director,'' inappropriately limits the evidence

which can be introduced at a permit review hearing. The Director

disagrees. As discussed above in Finding 3, SMCRA at section 514(c) and

the Federal regulations at 30 CFR 775.11(b)(1) provide that hearings

conducted by State regulatory authorities on permitting decisions must

be of record and adjudicatory in nature. Indiana meets those standards.

The proposed language may allow some information or documentation to be

excluded from post-decisional hearings. However, this proposal does not

prevent and ALJ at a permit hearing from remanding relevant and

important information and documentation to the regulatory authority for

analysis and reconsideration of its permit decision. Such a remand

would benefit the State in its interest in issuing only those permits,

revisions, and renewals which should be issued.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the Administrator of the EPA with respect to

any provisions of a State program amendment that relate to air or water

quality standards promulgated under the authority of the Clean Water

Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et

seq.). The Director has determined that this amendment contains no

provisions in these categories and that EPA's concurrence is not

required.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (Administrative Record No. IND-1221). EPA

did not respond to OSM's request.

V. Director's Decision

Based on the findings above, the Director is approving Indiana's

program amendment number 93-3 as submitted by Indiana on April 2, 1993,

and clarified by OSM on September 21, 1993, and March 28, 1994.

The Federal regulations at 30 CFR Part 914 codifying decisions

concerning the Indiana program are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 9, 1994.

Robert J. Biggi,

Acting Assistant Director, Eastern Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 914--INDIANA

1. The authority citation for part 914 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. In Sec. 914.15, paragraph (aaa) is added to read as follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(aaa) The following amendment (Program Amendment Number 93-3) to

the Indiana program as submitted to OSM on April 2, 1993, and clarified

on September 21, 1993, and March 28, 1994, is approved effective July

15, 1994: 310 IAC 0.6-1-2 concerning applicability of the rule; 310 IAC

0.6-1-2.5 concerning ultimate authority for the Indiana Department of

Natural Resources; 310 IAC 0.6-1-9 concerning defaults, dismissals,

agreed orders, and consent decrees, and 310 IAC 0.6-1-17 concerning

record of the director for surface coal mining permits.

[FR Doc. 94-17283 Filed 7-14-94; 8:45 am]

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