Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[IN-122, IN-123, IN-124]

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 three proposed amendments to the

Indiana regulatory program (hereinafter [[Page 28070]] referred to as

the ``Indiana program'') under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). All three proposed amendment packages

revise the Indiana Administrative Code (IAC) regulations. The first

amendment package amends the Indiana program at both 310 IAC 0.6 and

310 IAC 12 by revising the response to petitions for review and the

suspension or revocation of permits under Indiana law at IC 13-4.1. The

second amendment revises revegetation standards for success for

nonprime farmland for surface and underground coal mining and

reclamation operations under IC 13-4.1. The third amendment revises the

Small Operator Assistance Program (SOAP) regulations. The proposed

amendments are intended to revise the Indiana program to be consistent

with the corresponding Federal regulations. The amendments also

incorporate changes desired by the State that address various parts of

the State regulations.

DATES: Written comments must be received by 4 p.m., E.D.T., June 29,

1995. If requested, a public hearing on the proposed amendment will be

held on June 26, 1995. Requests to speak at the hearing must be

received by 4 p.m., E.D.T. on June 14, 1995.

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 amendments, 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 amendments by contacting OSM's Indianapolis Field Office.

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' findings, the disposition of

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

1982, Federal Register (47 FR 32107). 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 Amendments

A. Indiana Program Amendment Number 95-1

By letter dated May 3, 1995 (Administrative Record No. IND-1459),

the Indiana Department of Natural Resources (IDNR) submitted to OSM

State program amendment number 95-1 consisting of revisions to 310 IAC

0.6-1-5 and 310 IAC 12-6-6.5 concerning the response to petitions for

review and the suspension or revocation of permits under IC 13-4.1.

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

Indiana proposes several nonsubstantive wording changes, subsection

and regulation reference changes, and paragraph notation changes to

reflect the organizational changes made throughout this section.

Indiana is proposing to amend subsection (c) to require the

director of IDNR or a delegate to issue an order ``of permit suspension

or revocation pursuant to IC 13.4.1-11-6'' in place of an order ``to

show cause why the permit should not be revoked or suspended.'' In

conjunction with this proposed change, Indiana proposes to amend

subsections (c), (c)(2), (d), (e), (e)(1)(A), (e)(4), (f), and existing

(g)(2) [proposed (h)(2)] by changing existing language from ``an order

to show cause'' to ``an order of permit suspension or revocation.''

At subsection (d), Indiana is clarifying that an order of permit

suspension or revocation is governed by IC 4-21.5-3-6.

Indiana is proposing to amend the language of subsection (e) to

allow a permittee who desires to contest an order of permit suspension

or revocation to file ``a petition for review pursuant to IC 4-21.5-3-

7'' rather than filing ``an answer specifically denying those

allegations of the order to show cause which the permittee desires to

contest.'' In conjunction with this proposed revision, Indiana proposes

to amend subsections (f), (g)(1), existing (g)(3) [proposed (i)(2)],

and existing (h)(3) [proposed (k)(2)] by changing the existing language

from ``an answer'' to ``a petition for review.''

Indiana is proposing to revise subsection (f) to read as follows:

If a petition for review is not filed by the permittee under

subsection (e), the order of permit suspension or revocation shall

become an effective and final order of the commission without a

proceeding pursuant to IC 13-4.1-11-6(b).

Indiana is proposing to revise the existing language at subsection

(g)(1) and to add new provisions at subsections (g)(1)(A), (g)(1)(B),

(g)(1)(B)(A) and (B), and new (g)(2) as follows:

(g)(1) If a petition for review is filed by the permittee under

subsection (e), and a hearing on the order is desired by the permittee,

the matter shall be assigned to an administrative law judge for a

proceeding under IC 4-21.5-3. The proceeding is commenced when the

permittee files a petition for review under subsection (e). In a

hearing conducted under this section, the director has the burden of

going forward with evidence demonstrating that the permit in question

should be suspended or revoked. This burden shall be satisfied if the

director establishes a prima facie case that: (A) A pattern of

violations of any requirements of IC 13-4.1, 310 IAC 12, or any permit

conditions required under IC 13-4.1 or 310 IAC 12 exists or has

existed; and (B) the violations were: (A) willfully caused by the

permittee; or (B) caused by the unwarranted failure of the permittee to

comply with any requirements of IC 13-4.1, 310 IAC 12, or any permit

conditions required under IC 13-4.1 or 310 IAC 12. For the purposes of

this subsection, the unwarranted failure of the permittee to pay any

fee required under IC 13-4.1 or 310 IAC 12 constitutes a pattern of

violations and requires the issuance of an order of permit suspension

or revocation. (2) If the director demonstrates that the permit in

question 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.

Indiana is proposing to relocate the provisions of existing

subsections (g)(2) and (g)(2) (A) through (D) to new subsections (h)

and (h) (1) through (4); to amend the provisions of new subsection (h)

by requiring the administrative law judge to issue

[[Page 28071]] findings and a written recommendation to the commission

``to affirm, modify, or vacate the order of permit suspension or

revocation''; and to relocate the reference to ``the administrative law

judge'' to the last sentence in new subsection (h) and to delete this

reference from new subsections (h)(1) through (4).

Indiana is proposing to move the provisions of subsection (g)(3) to

new subsection (i).

Indiana is proposing to relocate the provisions of existing

subsection (g)(4) to new subsection (j) and to amend the provisions by

deleting the first sentence.

In response to a required amendment at 30 CFR 914.16(ff), Indiana

proposes the deletion of the provision immediately following existing

subsection (g)(4)(B). This provision allows issuance of the

administrative law judge's findings and nonfinal order within sixty

(60) days after conclusion of a permit suspension or revocation

hearing.

Existing subsection (h) is proposed to be moved to new subsection

(k) and the following revisions are proposed. At new subsection (k),

the language ``the director issues a recommended order under subsection

(f) or'' is deleted; the final order of the commission shall be entered

within ``forty-five (45)'' days rather than ``fifty (50)'' days; and

the language ``director's recommended order or the'' is deleted. The

language in existing subsection (h)(1) ``ninety (90) days following

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

permittee does not comply with the requirements of subsection (c)'' is

deleted.

310 IAC 12-6-6.5 Suspension or Revocation of Permits

Indiana is proposing to amend the language of subsection (a) to

require the director of IDNR to issue ``to the permittee an order of

permit suspension or revocation'' in place of ``an order to the

permittee requiring the permittee to show cause why the permit and a

right to mine under IC 13-4.1 should not be suspended or revoked.''

At subsection (c), Indiana is proposing to revise the language

which requires the director to issue ``a show cause order as provided

in 310 IAC 0.6-1-5(c)'' by replacing it with language which requires

the director to issue ``an order of permit suspension or revocation as

provided in 310 IAC 0.6-1-5. In conjunction with the above revisions,

Indiana is proposing to amend subsections (d), (e), and (g) by changing

the type of order from ``show cause order'' to ``order of permit

suspension or revocation'' and by revising regulation references.

At subsection (f), Indiana is changing the phrase ``[i]f the

committee suspends or revokes a permit'' to ``[i]f a permit is

suspended or revoked.''

B. Indiana Program Amendment Number 95-2

By letter dated May 3, 1995 (Administrative Record Number IND-

1460), the IDNR submitted program amendment number 95-2. This amendment

revises 310 IAC 12-5-64.1 and 310 IAC 12-5-128.1 pertaining to

revegetation standards for success for nonprime farmland for surface

and underground coal mining operations under IC 13-4.1.

310 IAC 12-5-64.1+ (Surface Mining) and 12-5-128.1 (Underground

Mining) Revegetation; Standards for Success for Nonprime Farmland

Since the revisions being proposed for surface mining at Sec. 12-5-

64.1 are identical to those being proposed for underground mining at

Sec. 12-5-128.1, they will be combined for ease of discussion.

Indiana proposes paragraph notation changes to reflect the

organizational changes made throughout subsections (c).

Indiana is, also, proposing to revise subsections (c) by correcting

its reference to the ``Soil Conservation Service'' to the ``Natural

Resources Conservation Service'' throughout.

Subsections (c)(3) concern the production success standards for

revegetated pastureland areas. Indiana is proposing to relocate the

provision in existing subsections (c)(4), which requires that if the

current Natural Resources Conservation Service predicted yield by soil

map units is used to determine production of living plants then the

standard for success shall be a weighted average of the predicted

yields for each unmined soil type which existed on the permit areas at

the time the permit was issued, to subsections (c)(3)(B).

Indiana is proposing to delete the existing provision in

subsections (c)(3)(C) for determining production of living plants on

pastureland and is proposing to add the following provision.

(C) A target yield determined by the following formula: Target

Yield=NRCS Target Yield x (CCA/10 Year CA) where: NRCS Target

Yield=the average yield per acre, as predicted by the Natural Resources

Conservation Service, for the crop and the soil map units being

evaluated. The most current yield information at the time of permit

issuance shall be used, and shall be contained in the appropriate

sections of the permit application. CCA=the county average for the crop

for the year being evaluated as reported by the United States

Department of Agriculture crop reporting service, the Indiana

Agricultural Statistics Service. 10 Year CA=the ten (1) Year Indiana

Agricultural Statistics Service county average, consisting of the year

being evaluated and the nine (9) preceding years.

Indiana is proposing to add new subsections (c)(3)(D) which allow

other methods approved by the director of IDNR to be used in

determining success of production of living plants on the revegetated

area.

Existing subsections (c)(6) are redesignated subsections (c)(5).

These subsections concern the success standards for production on

revegetated cropland areas. Indiana is proposing to relocate the

provision in existing subsections (c)(7), which requires that if the

current Natural Resources Conservation Service predicted yield by soil

map units is used to determine production of living plants then the

standard for success shall be a weighted average of the predicted

yields for each unmined soil type which existed on the permit areas at

the time the permit was issued, to redesignated subsections (c)(5)(B).

Indiana is proposing to delete the provision in existing

subsections (c)(6)(C) for determining production of living plants on

cropland and is proposing to add the following provision to

redesignated subsections (c)(5)(C).

(C) A target yield determined by the following formula: Target

Yield=CCA x (NRCSP/NRCSC) where; CCA=the county average for the crop

for the year being evaluated as reported by the United States

Department of Agriculture crop reporting service, the Indiana

Agricultural Statistics Service. NRCSP=the weighted average of the

current Natural Resources Conservation Service predicted yield for each

croppable, unmined soil which existed on the permit at the time the

permit was issued. NRCSC=the weighted average of the current Natural

Resources Conservation Service predicted yield for each croppable,

unmined soil which is shown to exist in the county on the most current

county soil survey. A croppable soil is any soil which the Natural

Resources Conservation Services has defined as being in capability

class I, II, III, or IV.

Indiana is proposing to add new subsections (c)(5)(D) which would

allow other methods approved by the director [[Page 28072]] of IDNR to

be used in determining success of production of living plants on

revegetated areas.

Indiana is proposing to move from existing subsections (c)(7) to

new subsections (c)(5)(E) the provision which requires that once the

method for establishing the standards has been selected, it may not be

modified without the approval of the director.

C. Indiana Program Amendment Number 95-3

By letter dated May 3, 1995 (Administrative Record Number IND-

1461), Indiana submitted State program amendment number 95-3. This

amendment revises the SOAP regulations at 310 IAC 12-3 to more closely

reflect the latest changes to 30 CFR Part 795.

310 IAC 12-3-130 Small Operator Assistance; Definitions

Indiana proposes to add two new definitions to this section as

follows:

Program administrator means the state or federal official within

the regulatory authority who has the authority and responsibility for

overall management of the Small Operator Assistance Program; and

Qualified laboratory means a designated public agency, private

firm, institution, or analytical laboratory that can provide the

required determination of probable hydrologic consequences or statement

of results of test boring or core samplings or other services as

specified at 30 IAC 12-3-133 under the Small Operator Assistance

Program and that meets the standards of 310 IAC 12-3-134.

310 IAC 12-3-131 Small Operator Assistance; Eligibility for Assistance

Indiana is proposing the following revisions to its regulations

pertaining to eligibility for assistance.

In the introductory sentence of Sec. 12-3-131, the language ``who

establishes the following'' is replaced with the language ``if he or

she.''

At Sec. 12-3-131(1), the language ``[a]n intention'' is replaced by

the word ``intends.''

At Sec. 12-3-131(2), the criteria for eligibility for assistance is

revised by providing that the probable total attributed annual

production for all locations will not exceed three hundred thousand

(300,000) tons.

At Sec. 12-3-131(2)(B) and (C), the percentage of ownership of

applicant is changed from five percent to ten percent with respect to

the pro rata share which ownership will play in determining attributed

coal production.

310 IAC 12-3-132.5 Small Operator Assistance; Application Approval and

Notice

Indiana is proposing to add the following new Sec. 12-3-132.5

pertaining to application approval and notice.

(a) If the program administrator finds the applicant eligible, he

or she shall inform the applicant in writing that the application is

approved. (b) If the program administrator finds the applicant

ineligible, he or she shall inform the applicant in writing that the

application is denied and shall state the reasons for denial.

310 IAC 12-3-133 Small Operator Assistance; Program Services and Data

Requirements

Indiana is proposing to amend 310 IAC 12-3-133 as follows:

At subsection (a), the existing language is deleted and the

following language is added.

(a) To the extent possible with available funds, the program

administrator shall select and pay a qualified laboratory to make the

determination and statement and provide other services referenced in

paragraph (b) of this section for eligible operators who request

assistance. Data collection and analysis may proceed concurrently with

the development of mining and reclamation plans by the operator.

At subsection (b), the existing language is revised to read as

follows:

(b) The program administrator shall determine the data needed for

each applicant or group of applicants. Data collected and the results

provided to the program administrator shall be sufficient to satisfy

the requirements for: (1) The determination of the probable hydrologic

consequences of the surface mining and reclamation operation in the

proposed permit area and adjacent areas, including the engineering

analyses and designs necessary for the determination in accordance with

310 IAC 12-3-47 and 310 IAC 12-3-81, and any other applicable

provisions of the Act; (2) the drilling and statement of the results of

test borings or core samplings from the proposed permit area, in

accordance with 310 IAC 12-331 and 310 IAC 12-369 and any other

applicable provisions of the Act; (3) the development of cross-section

maps and plans required by 310 IAC 12-3-39 and 310 IAC 12-3-76; (4) the

collection of archaeological and historic information and related plans

required by 310 IAC 12-3-29, 310 IAC 12-3-67, 310 IAC 12-3-38, 310 IAC

12-3-75, and any other archaeological and historic information required

by the regulatory authority; (5) pre-blast surveys required by 310 IAC

12-3-43; and (6) the collection of site-specific resources information,

the production of protection and enhancement plans for fish and

wildlife habitats required by 310 IAC 12-3-46.5 and 310 IAC 12-3-68.5

and information and plans for any other environmental values required

by the regulatory authority under the Act.

310 IAC 12-3-134 Small Operator Assistance; Qualified Laboratories

Indiana proposed several revisions to subsections (a) and (b).

These subsections, as revised, read as follows:

(a) To be designated a qualified laboratory, a firm shall

demonstrate that it--(1) Is staffed with experienced, professional

personnel in the fields applicable to the work to be performed; (2) has

adequate space for material preparation, cleaning, and sterilizing

equipment, and has stationary equipment, storage, and space to

accommodate work loads during peak periods; (3) meets applicable

federal or state safety and health requirements; (4) has analytical,

monitoring and measuring equipment capable of meeting the applicable

standards; (5) has the capability of collecting necessary field samples

and making hydrologic field measurements and analytical laboratory

determinations by acceptable hydrologic, geologic, or analytical

methods in accordance with the requirements of 310 IAC 12-3-30 through

310 IAC 12-3-33, 310 IAC 12-3-47, 310 IAC 12-3-68 through 310 IAC 12-3-

71, and any other applicable provisions of the ACT. Other appropriate

methods or guidelines for data acquisition may be approved by the

program administrator; and (6) has the capability of performing

services for either the determination or statement referenced in 310

IAC 12-3-133.

(b) Subcontractors may be used to provide some of the required

services provided their use is identified at the time a determination

is made that a firm is qualified and they meet requirements specified

by the program administrator.

310 IAC 12-3-135 Small Operator Assistance; Applicant Liability

Indiana is proposing to redesignate the introductory paragraph of

Sec. 12-3-135 as subsection (a), to revise the existing applicant

reimbursement requirements in subdivisions (1) through (4), and to add

a waiver of reimbursement provision at subsection (b). Revised

subdivisions (1) through (4) and new subsection (b) reads as follows:

(a)(1) submits information, fails to submit a permit application

within one (1) year from the date of receipt of the

[[Page 28073]] approved laboratory report, or fails to mine after

obtaining a permit; (2) the program administrator finds that the

operator's actual and attributed annual production of coal for all

locations exceeds three hundred thousand (300,000) tons during the

twelve (12) months immediately following the date on which the operator

is issued the surface coal mining and reclamation permit; (3) the

permit is sold, transferred, or assigned to another person and the

transferee's total actual and attributed production exceeds the three

hundred thousand (300,000) ton production limit during the twelve (12)

months immediately following the date on which the permit was

originally issued. Under this subdivision, the applicant and its

successor are jointly and severally obligated to reimburse the

regulatory authority; or (4) the applicant does not begin mining within

six (6) months after obtaining the permit.

(b) The program administrator may waive the reimbursement

obligation if he or she finds that the applicant at all times acted in

good faith.

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.D.T. on June 14, 1995. The location and time of the hearing will be

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

and 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.

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.

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 or 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 to 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. Accordingly, this rule will ensure that existing requirements

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

the determination as to whether this rule would have a significant

economic impact, the Department relief 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: May 23, 1995.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 95-13157 Filed 5-26-95; 8:45 am]

BILLING CODE 4310-05-M