Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[IN-111-FOR; Amendment 94-1]

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 exceptions, 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 consists of revisions to Indiana's

Surface Coal Mining and Reclamation Statutes concerning bond forfeiture

procedures, underground mine subsidence control, permit revocation

procedures, administrative orders and procedures, and conflict of

interest. The amendment is intended to revise the Indiana Code (IC) to

implement statutory changes.

EFFECTIVE DATE: April 4, 1995.

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 March 21, 1994 (Administrative Record Number IND-

1341), the Indiana Department of Natural Resources (IDNR) submitted a

proposed amendment consisting of three sets of changes to the Indiana

program. The first set of changes involve statutes enacted by Indiana

under SEA 408 from the 1994 Indiana Legislative Session. The amendments

concern bond forfeiture procedures, underground mine subsidence

control, and permit revocation procedures. The second set of amendments

are contained in SEA 319 (Pub. L. 7-1987). These amendments primarily

concern the substitution of the citation of the then-

[[Page 16986]] repealed IC 4-22-1 with IC 4-21.5 concerning

administrative orders and procedures. The third amendment is contained

in HEA 1516 (Pub. L. 13-1987). This amendment changes the Indiana

conflict of interest provisions.

OSM announced receipt of the proposed amendment in the April 18, 1994,

Federal Register (59 FR 18330), 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 18, 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. IC 13-4.1-6-9 Forfeiture of Bond

Indiana is adding new subsection 9(b) to provide that an order

issued under IC 13-4.1-6-9(a) is governed by IC 4-21.5-3-6 and becomes

an effective and final order without a proceeding if a request for

review of the order is not filed within 15 days after the order is

served upon: (1) the permittee; and (2) the person that executed the

permittee's bond or other performance guarantee, if the permittee filed

a bond or other performance guarantee under IC 13-4.1-1.

The Director finds the proposed language is substantively identical

to and no less effective than the Federal regulations at 30 CFR

800.50(b)(1) concerning forfeiture of bond.

2. IC 13-4.1-9-2.5 Subsidence--Repair or Compensation

This new section is added as a counterpart to SMCRA section 720

which was added by the Energy Policy Act of 1992 (Pub. L. 102-486 [H.R.

776]; October 24, 1992). Subsection 2.5(a) provides that as used in

subsection 2.5(d)(1), ``repair'' includes rehabilitation, restoration,

or replacement. This proposed language is substantively identical to

SMCRA subsection 720(a)(1) which provides that repair of damage shall

include rehabilitation, restoration, or replacement.

New subsection 2.5(b) provides that as used in subsection

2.5(d)(1), ``compensate'' means to provide compensation in an amount

equal to the full amount of the diminution of value resulting from the

subsidence referred to in subsection 2.5(d)(1). This proposed language

is substantively identical to SMCRA subsection 720(a)(1) which provides

that compensation shall be provided in the full amount of the

diminution in value resulting from the subsidence.

New subsection 2.5(c) provides that for the purposes of subsection

2.5(d)(1), compensation may be accomplished through the purchase,

before the commencement of mining operations, of a noncancellable

premium-prepaid insurance policy. This proposed language is

substantively identical to SMCRA section 720(a)(1) which provides that

compensation may be accomplished by the purchase, prior to mining, of a

noncancellable premium-prepaid insurance policy.

New subsection 2.5(d) provides that the operator of an underground

coal mining operation conducted after June 30, 1994, shall do the

following: (1) Promptly repair or compensate for material damage

resulting from subsidence caused to: (A) any occupied residential

dwelling and any structure related to the occupied residential

dwelling; or (B) any noncommercial building; due to the operator's

underground coal mining operation. (2) Promptly replace any drinking,

domestic, or residential water supply from a well or spring that: (A)

was in existence before the filing of the operator's application for a

surface coal mining and reclamation permit; and (B) has been affected

by contamination, diminution, or interruption resulting from the

operator's underground coal mining operation. This proposed language is

substantively identical to SMCRA section 720(a), except that the

Indiana provision applies only to underground coal mining operations

which occur after June 30, 1994. SMCRA section 720(a) provides that

underground coal mining operations conducted after the date of

enactment of new section 720 (October 24, 1992) shall comply with the

requirements of section 720. Therefore, to the extent that the proposed

amendment meets the requirements of SMCRA section 720(a) from June 30,

1994, the Director finds that IC 13-4.1-9-2.5 is no less stringent than

SMCRA section 720(a).

The Director is deferring decision on the enforcement of the

provisions of SMCRA section 720(a) during the period from the effective

date of SMCRA section 720 (October 24, 1992) to the effective date of

IC 13-4.1-9-2.5 (June 30, 1994). The Federal subsidence regulations

which will implement SMCRA section 720(a) have been finalized and will

be published shortly. Within 120 days after the publication of the new

Federal subsidence regulations, OSM intends to published for each State

with a regulatory program, including Indiana, final rule notices

concerning the enforcement of the provisions of the Energy Policy Act

in those States.

3. IC 13-4.1-11-6 Suspension or Revocation of Permit

Indiana is amending subsection 6(a)(1)(B) by deleting the term

``commission'' and adding the words ``adopted under IC 13-4.1-2-1.''

Indiana is also relating the words ``the violations.'' As amended, IC

13-4.1-11-6(a)(1)(B) reads as follows: ``the rules adopted under IC 13-

4.1-2-1.'' Since IC 13-4.1-2-1 is the provision which establishes the

authority for the Indiana Natural Resources Commission (the commission)

to adopt rules, the change does not render the provision less

effective. A similar amendment at subsection 6(a)(2)(A)(ii) also does

not render the provision less effective.

Indiana is adding the words ``permit conditions'' at subsection

6(a)(2)(A)(iii) to provide a counterpart to SMCRA section 521(a)(4).

Subsection 6(a) is amended to provide that if the director of the

IDNR determines that the criteria at subsections 6(a) (1) and (2)

apply, the director shall issue an order of permit suspension or

revocation and provide an opportunity for a public hearing. The

provision formerly provided for an order ``to the permittee to show

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

amendment does not render the provision less stringent than SMCRA

section 521(a)(4) because section 6 in its entirety still provides for

a hearing at which the permittee could show cause why the permit should

not be suspended or revoked.

Subsection 6(b) is amended by relocating the existing language to

new subsection 6(e). New language is added to subsection 6(b) to

provide that an order issued under the pattern of violations criteria

at subsection 6(a) is governed by IC 4-21.5-3-6 concerning required

notice, and becomes an effective and final order of the commission

without a proceeding if a request for review of the order is not filed

within 30 days after the order is served upon the permittee. The

Director finds the revision to be no less stringent than SMCRA at

section 521(a)(4).

Subsection 6(c) is amended by replacing a citation of ``IC 4-21.5-

3'' with ``IC 4-21.5.'' This change appropriately expands the citation

to the entire Indiana administrative orders and procedures at IC 4-

21.5. A block of [[Page 16987]] language concerning a written decision

following the hearing is deleted from subsection 6(c) and added to new

subsection 6(g).

New subsection 6(d) is added to provide that in a hearing requested

under IC 4-21.5-3-7, the director of the IDNR has the burden of going

forward with evidence demonstrating that the permit in question should

be suspended or revoked. The burden shall be satisfied if the director

establishes a prima facie case that the criteria of subsection 6(a)

have been met. This proposed language is consistent with and no less

stringent than SMCRA at section 521(a)(4).

The language in new subsection (e) is relocated from subsection

6(b).

New subsection 6(f) provides that if the director of the IDNR

determines in a hearing requested under IC 4-21.5-3-7 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 of the

IDNR. The Director finds that the proposed language is substantively

identical to and no less stringent than SMCRA at section 521(a)(4).

New subsection 6(g) contains language deleted from subsection 6(c)

and concerns the 60-day requirement to issue a final written decision

following a hearing. The Director finds the proposed language is not

inconsistent with SMCRA at section 521(a)(4) and is substantively

identical to and no less effective than 30 CFR 843.13(c).

Based on the discussion above, the Director is approving the

amendment to IC 13-4.1-11-6.

4. IC 13-4.1-2-4 Petition Procedures for Rules

This section is amended in two locations by deleting reference to

IC 4-22-1 and adding in its place a reference to IC 4-21.5 concerning

administrative orders and procedures. IC 4-21.5 is Indiana's current

statute controlling administrative orders and procedures and replaces

the repealed IC 4-22-1. The Director finds the change does not render

the Indiana program less effective.

Indiana is making similar citation changes in several provisions.

Most of these changes involve replacing reference to the repealed IC 4-

22-1 with IC 4-21.5 concerning administrative orders and procedures. At

IC 13-4.1-4-3 Indiana is deleting reference to IC 14-4-2 which was

repealed by Indiana in 1986 by Pub. L 115-1986, at section 22. The

following provisions contain citation changes which do not render the

Indiana program less stringent than SMCRA:

IC 13-4.1-2-4; IC 13-4.1-4-3; IC 13-4.1-4-5; IC 13-4.1-6-7; IC 13-4.1-

11-6; IC 13-4.1-11-8; IC 13-4.1-11-12; IC 13-4.1-12-1; IC 12-4.1-13-1;

and IC 13-4.1-15-9.

5. IC 13-4.1-2-3 Conflict of Interest

This provision is amended to provide that an employee of the IDNR

who has any duty under IC 13-4.1 may not have a direct or indirect

financial interest in any surface coal mining operation. A member of

the commission who has such an interest shall file annually with the

State Board of Accounts. Any person who knowingly violates this

provision commits a Class A misdemeanor.

Upon review of this provision, the Director has determined that

this version of IC 13-4.1-2-3 predates and is superseded by the version

which was the subject of a finding by the Director published in the

Federal Register on December 15, 1989 (54 FR 51388). In that finding,

the Director determined that IC 13-4.1-2-3 is not consistent with SMCRA

at 517(g) and the Federal rules at 30 CFR part 705 and did not approve

the amendments (see Finding 1, pages 51388 and 51389 of the December

15, 1989, Federal Register). In addition, the Director required at 30

CFR 914.16(b) that Indiana amend IC 13-4.1-2-3 or otherwise amend the

Indiana program to be consistent with SMCRA at 517(g) and the Federal

regulations at 30 CFR part 705 concerning employees of the regulatory

authority who have a function or duty under SMCRA. That requirement

still stands. Therefore, the Director is not acting on this earlier,

superseded version of IC 13-4.1-2-3.

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 18, 1994, Federal Register (59 FR

18330). The comment period closed on May 18, 1994. No one requested an

opportunity to testify at the scheduled public hearing so no hearing

was held.

Mr. Rabb Emison, an attorney, submitted a comment on behalf of five

operators of publicly regulated pipelines in Indiana which carry

petroleum products and natural gas. The following comments were made.

The commenters welcomed the proposed language concerning subsidence

but stated that the amendment is not complete. Specifically, the

comment stated that the proposed language specifies certain surface

structures for protection, but may be interpreted to deny equal

protection to commercial structures such as pipelines. This, they

asserted, would seem to limit the protection Congress intended in

section 516(b)(1) of SMCRA.

The comment stressed that protection of pipelines from unplanned

subsidence is needed to prevent rupture of the pipelines and potential

damage to property and the environment and loss of life. Protection

should be given to surface structures equally, they stated.

In response, the Director notes that the proposed language is

substantively identical to the counterpart language in SMCRA at section

720. The language of section 720(a) of SMCRA provides for the repair or

compensation for material damage resulting from subsidence caused to

any occupied residential dwelling and structures related thereto, or

noncommercial building due to underground coal mining operations.

In response to SMCRA section 720(b), OSM published proposed rules

intended to implement SMCRA section 720(a) (58 FR 50174; September 24,

1993). In that notice, OSM specifically solicited comments on whether a

need exists for nationwide rules that go beyond those required by SMCRA

section 720(a). Comments received in response to that proposed rule are

being reviewed.

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 Number IND-1221). By

letter dated June 21, 1994 (Administrative Record Number IND-1372), EPA

concurred without comment. [[Page 16988]]

V. Director's Decision

Based on the findings above, and except as noted below, the

Director is approving the program amendment submitted by Indiana on

March 21, 1994. As discussed in Finding 2, the Director is approving IC

13-4.1-9-2.5 to the extent that the proposed amendment meets the

requirements of SMCRA section 720(a) from June 30, 1994. In addition,

the Director is deferring decision on the enforcement of the provisions

of SMCRA section 720(a) during the period from the effective date of

SMCRA section 720 (October 24, 1992) to the effective date of IC 13-

4.1-9-2.5 (June 30, 1994). As discussed above in Finding 5, the

Director is not acting on IC 13-4.1-2-3.

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: March 27, 1995.

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 Section 914.15, paragraph (ggg) is added to read as follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(ggg) The following amendment (Program Amendment Number 94-1) to

the Indiana program as submitted to OSM on April 18, 1994, is approved,

except as noted below, effective April 4, 1995:

IC 13-4.1-6-9 Forfeiture of bond

IC 13-4.1-9-2.5 Subsidence repair or compensation, to the extent that

the proposed amendment meets the requirements of SMCRA section 720(a)

from June 30, 1994. The Director is deferring decision on the

enforcement of the provisions of SMCRA section 720(a) during the period

from the effective date of SMCRA section 720 (October 24, 1992) to the

effective date of IC 13-4.1-9-2.5 (June 30, 1994).

IC 13-4.1-11-6 Suspension or revocation of permits

IC 13-4.1-2-4 Petition procedures for rules

IC 13-4.1-2-4 Rule petition procedures

IC 13-4.1-4-3 Necessary permit findings

IC 13-4.1-4-5 Hearing on permit approval/disapproval

IC 13-4.1-6-7 Release of bond or deposit

IC 13-4.1-11-6 Suspension or revocation of permit

IC 13-4.1-11-8 Temporary relief

IC 13-4.1-11-12 Hearings; intervention

IC 13-4.1-12-1 Civil penalties

IC 13-4.1-13-1 Review of action of the director/commission

IC 13-4.1-15-9 Hearings; use or disposition of acquired lands

The Director is not acting on IC 13-4.1-2-3, Conflict of interest.

[FR Doc. 95-8115 Filed 4-3-95; 8:45 am]

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