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: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the

Indiana regulatory program (hereinafter referred to as the ``Indiana

program'') under the Surface Mining Reclamation Act of 1977 (SMCRA).

The proposed amendment (#93-2 Continuation) consists of revisions to

the Indiana rules concerning show cause orders and adjudicative

proceedings for the suspension and revocation of permits. The amendment

is intended to revise the Indiana program to be consistent with SMCRA

and the corresponding Federal regulations.

DATES: Written comments must be received by 4:00 p.m., E.S.T. August

15, 1994. If requested, a public hearing on the proposed amendment will

be held on August 9, 1994. Requests to speak at the hearing must be

received by 4:00 p.m., E.S.T. on August 1, 1994.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Roger W. Calhoun, Director, Indianapolis

Field Office at the first address listed below.

Copies of the Indiana program, the proposed amendment, a listing of

any scheduled public hearings, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

Friday, excluding holidays. Each requester may receive one free copy of

the proposed amendment by contracting OSM's Indianapolis Field Office.

Any disabled individual who has need for a special accommodation to

attend a public hearing should contact the individual listed under FOR

FURTHER INFORMATION CONTACT.

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

Surface Mining Reclamation and Enforcement, Minton-Capehart Federal

Building, Room 301, Indianapolis, Indiana 46204, Telephone: (317) 226-

6166;

Indiana Department of Natural Resources, 402 West Washington Street,

Room C256, Indianapolis, Indiana 46204, Telephone: (317) 232-1547.

FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director,

Indianapolis Field Office, Telephone: (317) 226-6166.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program

On July 29, 1982, the Secretary of the Interior conditionally

approved the Indiana program. Background information on the Indiana

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the July 26,

1982, Federal Register (47 FR 32071). Subsequent actions concerning the

conditions of approval and program amendments can be found at 30 CFR

914.10, 914.15, and 914.16.

II. Discussion of the Proposed Amendment

By letter dated June 15, 1994 (Administrative Record No. IND-1374),

Indiana submitted the final-adopted language of program amendment #93-2

concerning show cause orders and adjudicative proceedings for the

suspension or revocation of permits. OSM published a final rule notice

approving, with an exception, Indiana's program amendment #93-2 on

November 18, 1993 (58 FR 60783). In that notice, OSM required, at 30

CFR 914.16(d), an amendment to the Indiana program. Indiana's submittal

of the final-adopted language of amendment #93-2 contains Indiana's

response to the required program amendment at 30 CFR 914.16(d) and

other changes made by Indiana. Since Indiana's final adoption of

amendment #93-2 occurred after OSM published its approval of #93-2, any

changes Indiana made to the language approved by OSM on November 18,

1993, must be considered by OSM to be the subject of a new proposed

amendment. In addition to nonsignificant wording and paragraph notation

changes, the proposed amendments are summarized as follows.

1. 310 IAC 0.6-1-5 Petition for Review; Response

Indiana is making numerous changes to this section. Subsection 5(c)

is rewarded to provide that when the director of the Indiana Department

of Natural Resources (IDNR) determines that a permit issued pursuant to

IC 13-4.1 and 310 IAC 12 should be suspended or revoked, the director

of the IDNR (or a delegate of the director) shall issue to the

permittee an order to show cause why the permit should not be revoked

or suspended. Deleted from this paragraph is reference to IC 4-21.5-3-

8.

In subsection 5(c)(2), the words ``alleged in the order to show

cause'' are added after the word ``violations.''

In subsection 5(c)(2)(B) a reference to 310 IAC 12 is added at the

end of the sentence.

In subsection 5(e), the first sentence is reworded by referring to

``an order to show cause.'' The word ``service'' is deleted and

replaced by ``permittee's receipt of the order to show cause.''

Subsection 5(e)(1) is amended by deleting the words ``as described

in'' following the word ``violations.'' Reference to 310 IAC 12 is

added following the second reference to IC 13-4.1.

The language in 5(e)(1)(A) is amended to provide ``that the facts

alleged in the order to show cause constitute a pattern of

violations.''

In subsection 5(e)(1)(C), the words ``to comply with IC 13-4.1, 310

IAC 12, or any permit condition required by IC 13-4.1 or 310 IAC 12''

are added at the end of the clause.

Subsection 5(f) is amended by replacing the word ``response'' with

``an answer.'' The word ``permittee's'' is added before the word

``receipt.'' ``Show cause order'' has been amended to read ``order to

show cause.''

In subsection 5(g)(1), ``a response'' is replaced by ``an answer.''

A new second sentence is added to read ``[t]he proceeding is commenced

when the permittee files an answer under subsection (e).'' In the third

sentence the phrase ``complaint and proposed order'' is changed to

``order to show cause.''

Subsection 5(g)(2) is amended to provide that the administrative

law judge (ALJ) shall ``issue findings and a written recommendation to

the commission that the permit either'' be suspended or revoked. Prior

to this change, the language provided that the ALJ shall ``order the

permit either suspended or revoked.'' The second sentence is amended to

provide ``[i]n issuing findings and a written recommendation to the

commission'' the listed standards shall apply.

Subsection 5(g)(2)(C) provides that the ALJ shall 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 provisions of IC 4-21.5-3-27(e) and IC 4-21.5-3-27(f)

shall not apply to show cause proceedings.

New subsection 5(g)(2)(D) provides that any time prior to the

conclusion of the hearing of record, the ALJ may allow the parties to

submit briefs and proposed findings.

New subsection 5(g)(3) sets ten-day standards for the written

recommendations of the ALJ following a hearing or following the

permittee's answer if no hearing is requested.

New subsection 5(g)(4) limits the filing of objections to a

director's recommendation under 310 IAC 0.6-1-5(f) if a person did not

comply with 310 IAC 0.6-1-5(e) concerning contesting an order to show

cause. In addition, this provision provides ``[u]nder IC 13-4.1-11-

6(c), the administrative law judge shall issue the findings and a non-

final order within 60 days after conclusion of the hearing.''

Subsection 5(h) is amended to set a 50-day standard for the final

order of the commission following the issuance of the director's

recommended order to the ALJ findings and written recommendations.

Amendments also set a 90-day standard for the commission's final order

following receipt of the order to show cause by the permittee where the

permittee does not comply with the requirements of 310 IAC 0.6-1-5(e).

A 60-day standard is set for the commission's final order following the

hearing or the ALJ's receipt of the permittee's answer filed under 310

IAC 0.6-1-5(e) if no hearing was requested or necessary.

Subsection 5(i) is amended by replacing ``administrative law

judge'' with ``commission'' and adding a reference to 310 IAC 12 at the

end of the first sentence.

Old subsection 5(j), which limited the number of hearings available

to one before the director and one before the commission, is deleted.

2. 310 IAC 0.6-1-13 Awards of Litigation Expenses

Subsection 13(c) is amended by changing ``IC 13-8-5-7'' to read

``IC 13-8-15-7.''

3. 310 IAC 0.7-3-5 Delegations

Subsection 5(c) is deleted. This provision would grant the deputy

director of the IDNR authority to take action to forfeit a bond.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Indiana program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under ``DATES'' or at locations other than the Indianapolis Field

Office will not necessarily be considered in the final rulemaking or

included in the Administrative Record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

E.S.T. on August 1, 1994. The location and time of the hearing will be

arranged with those persons requesting the hearing. If no one requests

an opportunity to testify at the public hearing, the hearing will not

be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to speak have been heard. Persons in the audience who

have not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the audience who wish

to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the Administrative Record.

IV. 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 program 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

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 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 corresponding Federal regulations.

List of Subjects in 30 CFR Part 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 11, 1994.

Robert J. Biggi,

Acting Assistant Director, Eastern Support Center.

[FR Doc. 94-17284 Filed 7-14-94; 8:45 am]

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