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, with an exception, 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 is a continuation of program

amendment #93-2 and consists of revisions to Indiana's Surface Coal

Mining and Reclamation 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.

EFFECTIVE DATE: October 20, 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 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 found that a

previously imposed required amendment, cited at 30 CFR 914.16(d), could

not be removed. 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.

OSM announced receipt of the proposed amendment in the July 15,

1994, Federal Register (59 FR 36114), 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

August 15, 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. Nonsubstantive word changes

and paragraph notation changes also appear in the final adopted version

of amendment #93-2. However, only the substantive changes are discussed

below.

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

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

is reworded 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. This deletion does not render the provision less effective because

IC 4-21.5-3 continues to be cited at subsection 5(g)(1) for the

procedures to be followed if an answer is filed by the permittee

concerning a show cause order. The Director finds that these changes

are consistent with the Federal regulations at 30 CFR 843.13(a)(1)

concerning pattern of violations.

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 the Indiana surface coal mining regulations

at 310 IAC 12 is added at the end of the sentence. The Director finds

that these changes are consistent with 30 CFR 843.13(a).

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.'' The

Director finds these changes to be consistent with 30 CFR 843.14

concerning service.

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 Director finds

these changes improve the clarity of the provision and are consistent

with 43 CFR 4.1192(a), regarding answers to show cause orders.

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

the show cause order state the reasons for contesting ``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. The Director finds

that these changes add to the clarity of the provision are consistent

with 43 CFR 4.1192(a).

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.'' The Director finds that these non-substantive changes add

to the clarity of the provision and can be approved.

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.'' The Director finds that these changes improve

the clarity of the provision and are consistent with 30 CFR 843.13(b).

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. The Director finds that

this change is consistent with Indiana law that the Natural Resources

Commission (the commission) is the ultimate authority for decisions to

revoke permits, and the provision is consistent with 30 CFR 843.13(c)

and 43 CFR 4.1194(a).

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). Subsection 5(g)(2)(C) also provides that 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. The Indiana statutes at IC 4-21.5-3-27 concern the

preparation of findings for final orders. IC 4-21.5-3-27 (e) and (f)

appropriately do not apply. Subsection 27(e) authorizes the ALJ to

allow the parties time after the conclusion of the hearing for the

submission of proposed findings. The substance of subsection 27(e) is

contained in proposed new subsection 310 IAC 0.6-1-5(g)(2)(D) and is,

therefore, unnecessary. Subsection 27(f) provides for a 90-day deadline

for the issuance of written findings following the hearing. Subsection

27(f), therefore, is inconsistent with the 60-day time limit for the

filing of written findings following a hearing provided for by 30 CFR

843.13(c). The Director finds that these proposed provisions are

consistent with 30 CFR 843.13(c) and 30 CFR Part 4 concerning hearings.

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. The Director finds that this

provision is consistent with the Federal hearing procedures at 43 CFR

Part 4.1126.

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

recommendations of the ALJ following a hearing or following the

permittee's answer if no hearing is requested. The Director finds this

provision to be consistent with 43 CFR 4.1194(c) and that it partially

addresses the required amendment at 30 CFR 914.16(d).

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

director's recommendation under 310 IAC 0.6-1-5(f) by a person who did

not comply with 310 IAC 0.6-1-5(e) concerning contesting an order to

show cause. The Director finds that in total, the Indiana program

contains the same or similar procedural requirements as the Federal

regulations, and in particular, the proposed provision is not

inconsistent with the Federal regulations at 30 CFR 843.13 and 43 CFR

4.1191 and 4.1192.

Following subsection 5(g)(4)(B) is a provision which provides as

follows: ``[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.'' This provision, which allows the ALJ 60

days to render a non-final order, would leave no time for the

commission to render its final decision and still conform to the 60-day

time limit provided by 30 CFR 843.13(c). The proposed language is also

inconsistent with proposed subsections 5(g)(3) and 5(h) which are no

less effective than the 60-day provision at 30 CFR 843.13(c).

Therefore, the Director finds that the language quoted above in this

paragraph is less effective than the Federal regulations and cannot be

approved. In addition, the Director is requiring that Indiana further

amend 310 1AC 0.6-1-5 by deleting the language quoted above.

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

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

recommended order or the ALJ findings and written recommendations.

Amendments also set a 90-day deadline 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 deadline 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 nor necessary. The Director

finds this provision to be consistent with 30 CFR 843.13(c) and fully

satisfies the required program amendment at 30 CFR 914.16(d).

Subsection 5(i), which was formerly found at subsection 5(g)(1), is

amended by replacing ``administrative law judge'' with ``commission''

and adding a reference to 310 IAC 12 at the end of the first sentence.

The Director finds these changes clarify responsibilities and

procedures under the Indiana program and are consistent with 30 CFR

843.13.

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

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

The Director finds that this deletion, which has no Federal

counterpart, does not render 310 IAC 0.6-1-5 inconsistent with 30 CFR

843.13 and 43 CFR 4.1190 through 4.1196, because the procedures for a

hearing remain clear in the section.

With the exceptions noted above, the Director finds that the

proposed changes to 310 IAC 0.6-1-5 are consistent with and no less

effective than the Federal regulations at 30 CFR 843.13 and 43 CFR

4.1190 through 4.1196. In addition, the Director finds that the

required program amendment codified at 30 CFR 914.16(d) is satisfied by

these amendments and can be removed.

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.'' The Director finds that this correction of the

citation does not render the provision less effective than 43 CFR

4.1294 concerning the award of costs and expenses.

3. 310 IAC 0.7-3-5 Delegations

New subsection 5(a) is added and provides that 310 IAC 0.7-3-5

governs the delegation of authority by the Natural Resources Commission

with respect to the Bureau of Mine Reclamation and with respect to the

Division of Reclamation. Subsection 5(c) is deleted. This provision

would grant the deputy director of the IDNR authority to take action to

forfeit a bond. The Director finds that there are no Federal

counterparts to the language proposed to be added and deleted, and that

the addition and deletion does not render the Indiana program less

effective than SMCRA or the Federal regulations.

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

comments were received.

Public Comments

The public comment period and opportunity to request a public

hearing was announced in the July 15, 1994, Federal Register (59 FR

36114). The comment period closed on August 15, 1994. No one commented

and no one requested an opportunity to testify at the scheduled public

hearing so no hearing was held.

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 provide any comments.

V. Director's Decision

Based on the findings above, the Director is approving, except as

noted herein, Indiana's program amendment concerning show cause orders

and adjudicative proceedings as submitted by Indiana on June 15, 1994.

As discussed in Finding 1, the Director is not approving the following

language which appears immediately after 310 IAC 0.6-1-5(g)(4)(B):

``Under IC 13-4.1-11-6(c), the administrative law judge shall issue the

findings and a non-final order within sixty (60) days after conclusion

of the hearing.'' In addition, the Director is requiring that Indiana

further amend the Indiana program by deleting the language quoted

above. Also based on Finding 1 above, the Director is removing the

required program amendment codified at 30 CFR 914.16(d).

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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In his

oversight of the Indiana program, the Director will recognize only the

statutes, regulations and other materials approved by him, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Indiana of only such

provisions.

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: October 13, 1994.

Ronald C. Recker,

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 (ccc) is added to read as follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(ccc) The following amendment to the Indiana program concerning

show cause orders and adjudicative proceedings for the suspension and

revocation of permits as submitted to OSM on June 15, 1994, is

approved, except as noted herein, effective October 20, 1994: 310 IAC

0.6-1-5 concerning petition for review response, except the following

language which appears immediately after 310 IAC 0.6-1-5(g)(4)(B) is

not approved:

``Under IC 13-4.1-11-6(c), the administrative law judge shall issue

the findings and a non-final order within sixty (60) days after

conclusion of the hearing;'' 310 IAC 0.6-1-13 concerning awards of

litigation expenses; and 310 IAC 0.7-3-5 concerning delegations.

3. In Sec. 914.16, paragraph (d) is removed and reserved and

paragraph (ff) is added to read as follows:

Sec. 914.16 Required program amendments.

* * * * *

(ff) By April 15, 1995, Indiana shall amend the Indiana program by

deleting the language quoted below which immediately follows subsection

310 IAC 0.6-1-5(g)(4)(B): ``[u]nder 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.''

[FR Doc. 94-26062 Filed 10-19-94; 8:45 am]

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