Surface Coal Mining and Reclamation Operations on Federal Lands; State-Federal Cooperative Agreements; Indiana

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is proposing to adopt a cooperative agreement between the Department of

the Interior and the State of Indiana. This agreement will allow

Indiana, under the permanent regulatory program, to regulate surface

coal mining and reclamation operations on Federal lands in Indiana. The

Surface Mining Control and Reclamation Act of 1977 (SMCRA) provides for

this type of agreement. This notice of proposed rulemaking gives you

information on the terms of the proposed cooperative agreement.

DATES: Written Comments. We must receive written comments by 4:00 p.m.,

E.S.T., April 9, 1999.

Public Hearings. If requested, we will hold a public hearing on the

proposed rule on March 25, 1999. We must receive your requests to speak

at the hearing by 4:00 p.m., E.S.T., on March 1, 1999. If you wish to

attend a hearing but not testify, you should contact the person

identified under FOR FURTHER INFORMATION CONTACT before the hearing

date to verify that we will hold a hearing.

ADDRESSES: If you wish to comment, you may submit your comments by any

one of several methods. You may mail or hand carry your comments to

Andrew R. Gilmore, Director, Indianapolis Field Office, Office of

Surface Mining Reclamation and Enforcement, Minton-Capehart Federal

Building, 575 N. Pennsylvania Street, Indianapolis, Indiana 46204-1521.

You may also comment via the Internet to OSM's Administrative Record

at: [email protected].

You may submit a request for a public hearing orally or in writing

to the person and address specified under FOR FURTHER INFORMATION

CONTACT. We will announce the address, date and time for any public

hearing if one is held. If you are disabled and require special

accommodation to attend a public hearing, contact the person listed

under FOR FURTHER INFORMATION CONTACT.

Copies of the Indiana program, the proposed cooperative agreement,

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.

Indianapolis Field Office, Office of Surface Mining Reclamation and

Enforcement, Minton-Capehart Federal Building, 575 N. Pennsylvania

Street, Indianapolis, Indiana 46204-1521, Telephone: (317) 226-6700.

Indiana Department of Natural Resources, 402 West Washington

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

1547.

You may receive one free copy of the proposed agreement by

contacting the person listed under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,

Indianapolis Field Office, Telephone: 317-226-6700. E-mail:

[email protected].

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Background of the Indiana Program

III. Description of the Proposed Cooperative Agreement

IV. Procedural Determinations

I. Public Comment Procedures

Written Comments

If you are submitting written comments on the proposed rule, please

be specific, limit your comments to issues pertinent to the proposed

rule, and explain the reason for your recommendations. Except for

comments provided electronically, please submit three copies of your

comments, if possible, to our Administrative Record (see ADDRESSES).

All comments sent to the Administrative Record will be logged into the

administrative record for the rulemaking. However, we will not consider

or respond to your comments when developing the final rule if they are

received after the close of the comment period (see DATES). We will

make every attempt to log all comments into the administrative record,

but comments delivered to addresses other than those listed in

ADDRESSES may not be logged in.

Please submit Internet comments as an ASCII file avoiding the use

of special characters and any form of encryption. Please also include

``Attn: IN-142-FOR'' and your name and return address in your Internet

message. If you do not receive a confirmation from the system that we

have received your Internet message, contact us by telephone at 317-

226-6700. We will make comments, including names and addresses of

respondents, available for public review during regular business hours.

You may request confidentiality, which we will honor to the extent

allowable by law. If you wish to withhold your name or address, except

for the city or town, you must state this prominently at the beginning

of your comment. However, we will not consider anonymous comments. We

will make all submissions from organizations or businesses, and from

individuals identifying themselves as representatives or officials of

organizations or businesses, available for public inspection in their

entirety.

Public Hearing

If you wish to speak at the public hearing, contact the person

listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., E.S.T. on

March 1, 1999. We will arrange, with you, the location and time of the

hearing. If no one requests an opportunity to speak at a public

hearing, we will not hold one.

We request that you file a written statement at the time of the

hearing. It will greatly assist the transcriber. If you submit written

statements in advance of the hearing, this will allow us to prepare

adequate responses and appropriate questions.

We will continue the public hearing on the specified date until all

persons scheduled to speak have spoken. Persons in the audience who

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

allowed to speak 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 spoken.

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. If you wish

to meet with us to discuss the proposed agreement, you 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. We will make a written summary of each meeting a part of the

Administrative Record.

II. Background on the Indiana Program

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

approved the Indiana program. You can find

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background information on the Indiana program including the Secretary's

findings, the disposition of comments, and the conditions of approval

in the July 26, 1982, Federal Register (47 FR 32071). Later actions

concerning the conditions of approval and program amendments are found

at 30 CFR 914.10, 914.15, and 914.16.

III. Description of the Proposed Cooperative Agreement

By a letter dated March 10, 1998 (Administrative Record No. IND-

1598), from the Indiana Department of Natural Resources, Indiana

submitted a request for a State-Federal cooperative agreement under the

provisions of 30 CFR 745.11. The purpose of the proposed cooperative

agreement (Agreement), is to give Indiana the primary authority to

administer its approved permanent regulatory program on Federal lands.

Section 523(c) of SMCRA, 30 U.S.C. 1201 et seq., and the

regulations at 30 CFR Part 745 allow a State and the Secretary of the

Interior to enter into a permanent program Agreement if the State has

an approved State program for regulating surface coal mining and

reclamation operations on non-Federal and non-Indian lands. SMCRA

authorizes permanent program Agreements under section 523(c) which

provides that ``[a]ny State with an approved State program may elect to

enter into a cooperative agreement with the Secretary to provide for

State regulation of surface coal mining and reclamation operations on

Federal lands within the State, provided the Secretary determines in

writing that such State has the necessary personnel and funding to

implement such a cooperative agreement in accordance with the provision

of this Act.''

Section 745.11(b)(1) through (8) of our regulations require States

to submit certain information with a request for a permanent program

cooperative agreement, if the information has not been previously

submitted in the State program. Indiana previously submitted much of

the information relating to the budget, staffing, and equipment

necessary for performing inspections at surface coal mining and

reclamation operations on Federal lands. In addition, Indiana submitted

a written certification from the Chief Legal Counsel of the Indiana

Department of Natural Resources stating that the State does not have

statutory, regulatory, or other legal constraint which would limit the

ability of the Indiana Department of Natural Resources to fully comply

with the terms of the proposed Agreement, section 523(c) of SMCRA, and

30 CFR Part 745.

We have included the full text of the proposed agreement as part of

this proposed rulemaking. The proposed cooperative agreement may change

as a result of public comment and/or further discussion with the State

of Indiana. The proposed agreement, as submitted by Indiana, has

sixteen articles. A brief summary of the articles appears below.

Article I: Introduction, Purpose and Responsible Agencies. This

article explains the legal authority for the Agreement and states that

the Agreement allows Indiana to regulate surface coal mining and

reclamation operations on Federal lands in Indiana. The article

designates the Natural Resource Commission (NRC) and the Division of

Reclamation (DOR) of the Indiana Department of Natural Resources as the

agencies responsible for administering the Agreement on behalf of the

Governor of Indiana (Governor). It also designates OSM as the agency

responsible for administering the Agreement on behalf of the Secretary

of the Department of the Interior (Secretary). Indiana designated NRC

and DOR as the administrative bodies for the approved Regulatory

Program in Indiana.

Article II: Effective Date. This article provides that after

signature by the Secretary and the Governor, the Agreement will become

effective 30 days after publication in the Federal Register as a final

rule.

Article III: Definitions. This article provides that the terms and

phrases used in the Agreement will have the same meaning as those in

SMCRA, the OSM approved State Act (Indiana Code (I.C.) 14-34), and the

rules and regulations set forth as a result of those acts. The article

also specifies that the State will use the definitions in its approved

State program if State and Federal definitions conflict.

Article IV: Applicability. This article states that the laws,

regulations, terms and conditions of Indiana's approved State program

are applicable to Federal lands in Indiana except as otherwise stated

in the Agreement, SMCRA, 30 CFR 740.4, 740.11(a), 745.13, and other

applicable laws, Executive Orders, or regulations.

Article V: General Requirements. This article certifies that DOR

and NRC have the authority under State law to carry out the terms of

the Agreement. It also establishes the procedures for funding DOR's and

NRC's responsibilities under the Agreement and the right of DOR or OSM

to terminate the agreement if OSM cannot adequately fund the program.

This article provides for DOR and OSM to exchange information and for

DOR to report annually to OSM. It also requires DOR to have adequate

personnel with sufficient equipment and facilities to carry out the

requirements of the program. Finally, this article discusses how DOR

will determine the amount of the permit application fee and how DOR

will handle funds generated from permit application fees, civil

penalties, and fines collected from operations on Federal lands.

Article VI: Review of Permit Application Packages. Paragraphs A

through C of Article VI generally describe the procedures that the

State and OSM will follow in the review and analysis of a permit

application package (PAP) for operations on Federal lands. The term

``permit application package'' is defined under 30 CFR 740.5. DOR will

assume primary responsibility for the review of a PAP. Where leased

Federal coal is involved, OSM will prepare a mine plan decision

document and obtain the Secretary's approval for the document.

The article also establishes guidelines for material to be

submitted in the PAP and the procedures that OSM and DOR will use in

reviewing the PAP. The article further spells out the coordination

between DOR, OSM, and other Federal Agencies in conducting the reviews.

Finally, the article provides guidelines for making a decision on the

permit application and informing the applicable parties of the

decision. The review procedures for permit revisions, renewals and the

transfer, assignment or sale of permit rights are also discussed.

Article VII. Inspections. This article specifies that DOR will

conduct inspections of the operations on Federal lands and will prepare

and file inspection reports documenting the inspection according to the

State program. DOR will also be the point of contact and the primary

inspection authority in dealing with these operators. However,

authorized Federal or State agencies will be allowed to conduct

necessary inspections for purposes other than those covered by the

Agreement. Finally, the article discusses procedures that OSM will

follow when handling citizen complaints that it receives pertaining to

imminent danger to the public health and safety or to significant

imminent environmental harm to land, air or water resources.

Article VIII: Enforcement. This article deals with DOR's

responsibility for issuing enforcement actions resulting from

violations on surface coal mining and reclamation sites on Federal

lands. DOR will have the lead in issuing enforcement actions except in

cases

[[Page 6152]]

where Federal laws and Executive Orders reserve these rights to the

Secretary. The article provides for DOR and OSM to exchange information

concerning enforcement actions and to be mutually available to serve as

witnesses in enforcement actions taken by either party.

Article IX: Bonds. This article specifies the procedures that a

permittee must follow to get a performance bond to cover the operator's

liability under the Act and the State program. The article discusses

the assignment of the bond if the Agreement is terminated and the

procedures for releasing and forfeiting bond. Finally the article

states that if the operator submits a performance bond, this bond does

not satisfy the requirements for the operator to also submit a Federal

lease bond or lessee protection bond in certain circumstances.

Article X. Designating Areas Unsuitable for All or Certain Types of

Surface Coal Mining and Reclamation Operations and Activities, Valid

Existing Rights (VER), and Compatibility Determinations. The unsuitably

petitions portion of the article only allows the Secretary to designate

Federal lands as unsuitable for mining. The article further states the

procedures DOR or OSM must follow if they receive a petition to

designate land areas unsuitable for all or certain types of surface

coal mining operations that could affect adjacent Federal or non-

Federal lands. The VER and Compatibility Determinations portion of the

article requires OSM to make VER determinations on Federal lands where

proposed operations are not allowed or are limited by Section 522(e)(1)

of the Act. This article also requires OSM to make determinations of

compatibility under the provisions of section 522(e)(2) of the Act.

Article XI: Termination of Cooperative Agreement. This article

allows the Governor or the Secretary to terminate the Agreement under

the provisions of 30 CFR 745.15.

Article XII: Reinstatement of Cooperative Agreement. This article

allows the Governor and the Secretary to reinstate the Agreement, under

the provisions of 30 CFR 745.16, if it is terminated in whole or part.

Article XIII: Amendment of Cooperative Agreement. This article

provides that the Governor and the Secretary, under the provisions of

30 CFR 745.14, may amend the Agreement by mutual consent.

Article XIV: Changes in State or Federal Standards. This article

describes the procedures the Governor or the Secretary must follow when

they declare new or revised performance or reclamation requirements or

enforcement and administrative procedures.

Article XV: Changes in Personnel and Organization. Under the terms

of this article, each party to the Agreement must notify the other of

changes in personnel, organization and funding, or other changes that

may affect the implementation of the Agreement.

Article XVI: Reservation of Rights. This article provides that the

agreement does not cause the State or the Secretary to waive any rights

they may have under laws other than SMCRA or their regulations,

including but not limited to those listed in Appendix A to the

Agreement.

IV. Procedural Determinations

1. Executive Order 12866--Regulatory Planning and Review

This document is not a significant rule and is not subject to

review by the Office of Management and Budget under Executive Order

12866.

(1) This rule will not have an effect of $100 million or more on

the economy. It will not adversely affect in a material way the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities.

(2) This rule will not create a serious inconsistency or otherwise

interfere with an action taken or planned by another agency.

(3) This rule does not alter the budgetary effects or entitlements,

grants, user fees, or loan programs or the rights or obligations of

their recipients.

(4) This rule does not raise novel legal or policy issues.

2. Regulatory Flexibility Act

The Department of the Interior certifies 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.).

This rule will establish an Agreement between the Department of the

Interior and the State of Indiana. The Agreement does not impose any

new substantive requirements on the coal industry; it merely authorizes

the State to regulate surface coal mining and reclamation activities on

Federal lands in Indiana in lieu of the Federal government.

3. Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small

Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or

more. The rule affects only the State of Indiana and the costs of

carrying out the functions under the Agreement are offset by grants

from the Federal government.

b. Will not cause a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions because the rule does not impose any

new requirements on the coal mining industry or consumers. The

functions being performed by the State under the Agreement are offset

by grants from the Federal government.

c. Does not have significant adverse effects on competition,

employment, investment, productivity, innovation, or the ability of

U.S.-based enterprises to compete with foreign-based enterprises for

the reasons stated above.

4. Unfunded Mandates

This rule does not impose an unfunded mandate on State, local, or

tribal governments or the private sector of more than $100 million per

year. The rule does not have a significant or unique effect on State,

local or tribal governments or the private sector. The rule establishes

a cooperative agreement at the request of the State of Indiana and will

result in the delegation of authority to the State. The cost to the

State of performing the duties being delegated are offset by a grant

from the Federal government. A statement containing the information

required by the Unfunded Mandates Reform Act (2 U.S.C. 1531, et seq.)

is not required.

5. Executive Order 12630--Takings

In accordance with Executive Order 12630, the rule does not have

significant takings implications. The rule establishes an Agreement at

the request of the State of Indiana and will result in the delegation

of authority to the State. A takings implication assessment is not

required.

6. Executive Order 12612--Federalism

In accordance with Executive Order 12612, the rule does not have

significant Federalism implications to warrant the preparation of a

Federalism Assessment. The rule establishes an Agreement at the request

of the State of Indiana and will result in the delegation of authority

to the State. Therefore, a Federalism assessment is not required.

7. Executive Order 12988--Civil Justice Reform

In accordance with Executive Order 12988, the Office of the

Solicitor has

[[Page 6153]]

determined that this rule does not unduly burden the judicial system

and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

8. Paperwork Reduction Act

This rule does not require an information collection from 10 or

more parties and a submission under the Paperwork Reduction Act is not

required. An OMB form 83-I is not required.

9. National Environmental Policy Act

An environmental impact statement is not required for this rule

since section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that the

implementation of a Federal lands program under the provision of

section 523 of SMCRA does not constitute a major Federal action within

the meaning of section 102(2)(C) of the National Environmental Policy

Act of 1969 (42 U.S.C. 4332(2)(C)).

10. Author

The principal author of this rule is Andrew R. Gilmore, Director,

Office of Surface Mining, Indianapolis Field Office, Minton-Capehart

Federal Building, 575 N. Pennsylvania Street, Indianapolis, Indiana

46204-1521.

List of Subjects in 30 CFR Part 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 20, 1999.

Sylvia V. Baca,

Acting Assistant Secretary, Land and Minerals Management.

For the reasons given in the preamble, OSM proposes to amend 30 CFR

part 914 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. Section 914.30 is added to read as follows:

Sec. 914.30 State-Federal Cooperative Agreement.

State-Federal Cooperative Agreement

The Governor of the State of Indiana (Governor) and the Secretary

of the Department of the Interior (Secretary) enter into a Cooperative

Agreement (Agreement) to read as follows:

Article I: Introduction, Purposes and Responsibile Agencies

A. Authority: This Agreement is authorized by section 523(c) of

the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C.

1273(c), which allows a State with a permanent regulatory program

approved by the Secretary under section 503 of SMCRA, 30 U.S.C.

1253, to elect to enter into an Agreement for the State regulation

of surface coal mining and reclamation operations (including surface

operations and surface impacts incident to underground mining

operations) on Federal lands. This Agreement provides for State

regulation of coal exploration operations not subject to 43 CFR Part

3400 and surface coal mining and reclamation operations in Indiana

on Federal lands (30 CFR Chapter VII Subchapter D), consistent with

SMCRA and State and Federal laws governing such activities and the

Indiana State Program (Program).

B. Purposes: The purposes of this Agreement are to (a) foster

Federal-State cooperation in the regulation of surface coal mining

and reclamation operations and coal exploration operations not

subject to 43 CFR Part 3400; (b) minimize intergovernmental overlap

and duplication; and (c) provide uniform and effective application

of the Program on all lands in Indiana in accordance with SMCRA, the

Program, and this Agreement.

C. Responsible Administrative Agencies: The Natural Resource

Commission (NRC) and the Division of Reclamation (DOR) of the

Indiana Department of Natural Resources will be responsible for

administering this Agreement on behalf of the Governor under the

approved Indiana Regulatory Program. The Office of Surface and

Mining Reclamation and Enforcement (OSM) will administer this

Agreement on behalf of the Secretary.

Article II: Effective Date

After being signed by the Secretary and the Governor, this

Agreement will take effect 30 days after publication in the Federal

Register as a final rule: This Agreement will remain in effect until

terminated as provided in Article XI.

Article III: Definitions

The terms and phrases used in this Agreement which are defined

in SMCRA, 30 CFR Parts 700, 701 and 740, the Program, including the

OSM approved State Act (I.C. 14-34), and the rules and regulations

promulgated pursuant to those Acts, will be given the meanings set

forth in said definitions. Where there is a conflict between the

above referenced State and Federal definitions, the definitions used

in the Program will apply.

Article IV: Applicability

In accordance with the Federal lands program, the laws,

regulations, terms and conditions of the Program are applicable to

Federal lands in Indiana except as otherwise stated in this

Agreement, SMCRA, 30 CFR 740.4, 740.11(a) and 745.13, and other

applicable laws, Executive Orders, or regulations.

Article V: General Requirements

The Governor and the Secretary affirm that they will comply with

all the provisions of this Agreement.

A. Authority of State Agency: DOR and NRC have and will continue

to have the authority under State law to carry out this Agreement.

B. Funds:

1. Upon application by DOR and subject to appropriations, OSM

will provide the State with the funds to defray the costs associated

with carrying out its responsibilities under this Agreement as

provided in section 705(c) of SMCRA, the grant agreement, and 30 CFR

735.16. Such funds will cover the full cost incurred by DOR and NRC

in carrying out these responsibilities, provided that such cost does

not exceed the estimated cost the Federal government would have

expended on such responsibilities in the absence of this Agreement.

2. OSM's Indianapolis Field Office and OSM's Mid-Continent

Region Coordinating Center office will work with DOR to estimate the

amount the Federal government would have expended for regulation of

Federal lands in Indiana in the absence of this Agreement.

3. OSM and the State will discuss the OSM Federal lands cost

estimate. After resolution of any issues, DOR will include the

Federal lands cost estimate in the State's annual regulatory grant

application submitted to OSM's Indianapolis Field Office.

The State may use the existing year's budget totals, adjusted

for inflation and workload considerations in estimated regulatory

costs for the following grant year. OSM will notify DOR as soon as

possible if such projections are not acceptable.

4. If DOR applies for a grant but sufficient funds have not been

appropriated to OSM, OSM and DOR will promptly meet to decide on

appropriate measures that will insure that surface coal mining and

reclamation operations on Federal lands in Indiana are regulated in

accordance with the Program. If agreement cannot be reached, either

party may terminate the Agreement in accordance with Article XI of

this Agreement.

5. Funds provided to the DOR under this Agreement will be

adjusted in accordance with Office of Management and Budget Common

Rule for Uniform Administration Requirements for Grants and

Cooperative Agreements to State and Local Governments.

C. Reports and Records: DOR will make annual reports to OSM

containing information with respect to compliance with the terms of

this Agreement pursuant to 30 CFR 745.12(d). Upon request, DOR and

OSM will exchange information developed under this Agreement, except

where prohibited by Federal or State law.

OSM will provide DOR with a copy of any final evaluation report

prepared concerning State administration and enforcement of this

Agreement. DOR comments on the report will be appended before

transmission to the Congress, unless necessary to respond to a

request by a date certain, or to other interested parties.

D. Personnel: Subject to adequate appropriations and grant

awards, the DOR will maintain the necessary personnel to fully

implement this Agreement in accordance with the provisions of SMCRA,

the Federal lands program, and the Program.

E. Equipment and Laboratories: Subject to adequate

appropriations and grant awards, the DOR will assure itself access

to equipment, laboratories, and facilities with which all

inspections, investigations, studies,

[[Page 6154]]

tests, and analyses can be performed which are necessary to carry

out the requirements of the Agreement.

F. Permit Application Fees and Civil Penalties: The amount of

the fee accompanying an application for a permit for surface coal

mining and reclamation operations on Federal lands in Indiana will

be determined in accordance with the approved Indiana Program. All

permit fees, civil penalties and fines collected from operations on

Federal lands will be retained by the State and will be deposited

within the Natural Resources Reclamation Division Fund. Permit fees

will be considered program income. Civil penalties and fines will

not be considered program income. The financial status report

submitted pursuant to 30 CFR 735.26 will include a report of the

amount of fees, penalties, and fines collected on such permits

during the State's prior fiscal year.

Article VI: Review of Permit Application Package

A. Submission of Permit Application Package

1. DOR and the Secretary require an applicant proposing to

conduct surface coal mining and reclamation operations on Federal

lands covered by this Agreement to submit a permit application

package (PAP) in an appropriate number of copies to DOR. DOR will

furnish OSM and other Federal agencies with an appropriate number of

copies of the PAP. The PAP will be in the form required by DOR and

will include any supplemental information required by OSM, the

Federal land management agency, and other agencies with jurisdiction

or responsibility over Federal lands affected by the operations

proposed in the PAP.

At a minimum, the PAP will satisfy the requirements of 30 CFR

740.13(b) and include the information necessary for DOR to make a

determination of compliance with the Program and for OSM and the

appropriate Federal agencies to make determinations of compliance

with applicable requirements of SMCRA, the Federal lands program,

and other Federal laws, Executive Orders, and regulations for which

they are responsible.

2. For any outstanding or pending permit applications on Federal

lands being processed by OSM prior to the effective date of this

Agreement, OSM will maintain sole permit decision responsibility.

After the final decision, all additional responsibilities shall pass

to DOR pursuant to the terms of this Agreement along with any

attendant fees, fines, or civil penalties therefrom.

B. Review Procedures Where There Is No Leased Federal Coal Involved

1. DOR will assume the responsibilities for review of PAPs where

there is no leased Federal coal to the extent authorized in 30 CFR

740.4(c)(1), (2), (4), (6) and (7). In addition to consultation with

the Federal land management agency pursuant to 30 CFR 740.4(c)(2),

DOR will be responsible for obtaining, except for non-significant

revisions, the comments and determinations of other Federal agencies

with jurisdiction or responsibility over Federal lands affected by

the operations proposed in the PAP. DOR will request such Federal

agencies to furnish their findings or any requests for additional

information to DOR within 45 calendar days of the date of receipt of

the PAP. OSM will assist DOR in obtaining this information, upon

request.

Responsibilities and decisions which can be delegated to DOR

under other applicable Federal laws may be specified in working

agreements between OSM and the State, with the concurrence of any

Federal agency involved, and without amendment to this Agreement.

2. DOR will assume responsibility for the analysis, review and

approval, disapproval, or conditional approval of the permit

application component of the PAP required by 30 CFR 740.13 for

surface coal mining and reclamation operations in Indiana on Federal

lands not requiring a mining plan pursuant to the Mineral Leasing

Act (MLA). DOR will review the PAP for compliance with the Program

and the OSM approved State Act and regulations. DOR will be the

primary point of contact for applicants regarding decisions on the

PAP and will be responsible for informing the applicant of

determinations.

3. The Secretary will make his determinations under SMCRA that

cannot be delegated to the State. Some of which have been delegated

to OSM.

4. OSM and DOR will coordinate with each other during the review

process as needed. OSM will provide technical assistance to DOR when

requested, if available resources allow. DOR will keep OSM informed

of findings made during the review process which bear on the

responsibilities of OSM or other Federal agencies. OSM may provide

assistance to DOR in resolving conflicts with Federal land

management agencies. OSM will be responsible for ensuring that any

information OSM receives from an applicant is promptly sent to DOR.

OSM will have access to DOR files concerning operations on Federal

lands. OSM will send to DOR copies of all resulting correspondence

between OSM and the applicant that may have a bearing on decisions

regarding the PAP. The Secretary reserves the right to act

independently of DOR to carry out his responsibilities under laws

other than SMCRA.

5. DOR will make a decision on approval, disapproval or

conditional approval of the permit on Federal lands.

(a) Any permit issued by DOR will incorporate any lawful terms

or conditions imposed by the Federal land management agency,

including conditions relating to post-mining land use, and will be

conducted in compliance with the requirements of the Federal land

management agency.

(b) The permit will include lawful terms and conditions required

by other applicable Federal laws and regulations.

(c) After making its decision on the PAP, DOR will send a notice

to the applicant, OSM, the Federal land management agency, and any

agency with jurisdiction or responsibility over Federal lands

affected by the operations proposed in the PAP. A copy of the permit

and written findings will be submitted to OSM upon request.

C. Review Procedures Where Leased Federal Coal Is Involved

1. DOR will assume the responsibilities listed in 30 CFR

740.4(c)(1), (2), (3), (4), (6) and (7), to the extent authorized.

In accordance with 30 CFR 740.4(c)(1), DOR will assume

responsibility for the analysis, review and approval, disapproval,

or conditional approval of the permit application component of the

PAP for surface coal mining and reclamation operations in Indiana

where a mining plan is required, including applications for

revisions, renewals and transfer sale and assignment of such

permits. OSM will, at the request of the State, assist to the extent

possible in this analysis and review.

DOR will be the primary point of contact for applicants

regarding the review of the PAP for compliance with the Program and

State law and regulations. DOR will be responsible for informing the

applicant of all joint State-Federal determinations.

DOR will to the extent authorized, consult with the Federal land

management agency and the Bureau of Land Management (BLM) pursuant

to 30 CFR 740.4(c)(2) and (3), respectively. On matters concerned

exclusively with regulations under 43 CFR part 3480, Subparts 3480

through 3487, BLM will be the primary contact with the applicant.

BLM will inform DOR of its actions and provide DOR with a copy of

documentation on all decisions.

DOR will send the OSM copies of any correspondence with the

applicant and any information received from the applicant regarding

the PAP. OSM will send to DOR copies of all correspondence with the

applicant which may have a bearing on the PAP. As a matter of

practice, OSM will not independently initiate contacts with

applicants regarding completeness or deficiencies of the PAP with

respect to matters covered by the Program.

DOR will also be responsible for obtaining the comments and

determinations of other Federal agencies with jurisdiction or

responsibility over Federal lands affected by the operations

proposed in the PAP. DOR will request all Federal agencies to

furnish their findings or any requests for additional information to

DOR within 45 days of the date of receipt of the PAP. OSM will

assist DOR in obtaining this information, upon request of DOR.

DOR will be responsible for approval and release of performance

bonds under 30 CFR 740.4(c)(4) in accordance with Article IX of this

Agreement, and for review and approval under 30 CFR 740.4(c)(6) of

exploration operations not subject to 43 CFR Part 3480, Subparts

3480-3487.

DOR will prepare documentation to comply with the requirements

of NEPA under 30 CFR 740.4(c)(7); however, OSM will retain the

responsibility for the exceptions in 30 CFR 740.4(c)(7) (i)-(vii).

2. The Secretary will concurrently carry out his

responsibilities under 30 CFR 740.4(a) that cannot be delegated to

DOR under the Federal lands program, MLA, the National Environmental

Policy Act (NEPA), this Agreement, and other applicable Federal

laws. The Secretary will carry out these responsibilities in a

timely manner and will

[[Page 6155]]

avoid to the extent possible, duplication of the responsibilities of

the State as set forth in this Agreement and the Program. The

Secretary will consider the information in the PAP and, where

appropriate, make decisions required by SMCRA, MLA, NEPA, and other

Federal laws.

Responsibilities and decisions which can be delegated to the

State under other applicable Federal laws may be specified in

working agreements between OSM and DOR, with concurrence of any

Federal agency involved, and without amendment to this Agreement.

Where necessary to make the determination to recommend that the

Secretary approve the mining plan, OSM will consult with and obtain

the concurrences of the BLM, the Federal land management agency and

other Federal agencies as required.

The Secretary reserves the right to act independently of DOR to

carry out his responsibilities under laws other than SMCRA or

provisions of SMCRA not covered by the Program, and in instances of

disagreement over SMCRA and the Federal lands program.

3. OSM will assist DOR in carrying out DOR's responsibilities

by:

(a) Coordinating resolution of conflicts and difficulties

between DOR and other Federal agencies in a timely manner.

(b) Assisting in scheduling joint meetings, upon request,

between State and Federal agencies.

(c) Where OSM is assisting DOR in reviewing the PAP, furnishing

to DOR the work product within 50 calendar days of receipt of the

State's request for such assistance, unless a different time is

agreed upon by OSM and DOR.

(d) Exercising its responsibilities in a timely manner, governed

to the extent possible by the deadlines established in the Program.

4. Review of the PAP:

(a) OSM and DOR will coordinate with each other during the

review process as needed. DOR will keep OSM informed of findings and

technical analyses made during the review process which bear on the

responsibilities of OSM or other Federal agencies. OSM will ensure

that any information it receives which has a bearing on decisions

regarding the PAP is promptly sent to DOR.

(b) DOR will review the PAP for compliance with the Program and

State law and regulations.

(c) OSM will review the operation and reclamation plan portion

of the permit application, and any other appropriate portions of the

PAP for compliance with the non-delegable responsibilities of SMCRA

and for compliance with the requirements of other Federal laws and

regulations.

(d) OSM and DOR will develop a work plan and schedule for PAP

review and each will identify a person as the project leader. The

project leaders will serve as the primary points of contact between

OSM and DOR throughout the review process. Not later than 50 days

after receipt of the PAP, unless a different time is agreed upon,

OSM will furnish DOR with its review comments on the PAP and specify

any requirements for additional data. To the extent practicable, DOR

will provide OSM all available information that may aid OSM in

preparing any findings.

(e) DOR will prepare a State decision package, including written

findings and supporting documentation, indicating whether the PAP is

in compliance with the Program. The review and finalization of the

State decision package will be conducted in accordance with

procedures for processing PAPs agreed upon by DOR and OSM.

(f) DOR may make a decision on approval or disapproval of the

permit on Federal lands in accordance with the Program prior to the

necessary Secretarial decision on the mining plan, provided that DOR

advises the operator in the permit that Secretarial approval of the

mining plan must be obtained before the operator may conduct coal

development or mining operations on the Federal lease. DOR will

reserve the right to amend or rescind any requirements of the permit

to conform with any terms or conditions imposed by the Secretary in

his approval of the mining plan.

(g) The permit will include, as applicable, terms and conditions

required by the lease issued pursuant to the MLA and by any other

applicable Federal laws and regulations, including conditions

imposed by the Federal land management agency relating to post-

mining land use, and those of other affected agencies, and will be

conditioned on compliance with the requirements of the Federal land

management agency with jurisdiction.

(h) After making its decision on the PAP, DOR will send a notice

to the applicant, OSM, the Federal land management agency, and any

agency with jurisdiction or responsibility over Federal land

affected by operations proposed in the PAP. A copy of the written

findings and the permit will also be submitted to OSM.

5. OSM will provide technical assistance to DOR when requested,

if available resources allow. OSM will have access to DOR files

concerning operations on Federal lands.

D. Review Procedures for Permit Revisions; Renewals; and Transfer

Assignment or Sate of Permit Rights

1. Any permit revision or renewal for an operation on Federal

lands will be reviewed and approved or disapproved by DOR after

consultation with OSM on whether such revision or renewal

constitutes a mining plan modification pursuant to 30 CFR 746.18.

OSM will inform DOR within 30 days of receiving a copy of a proposed

revision or renewal, whether the permit revision, or renewal

constitutes a mining plan modification. Where approval of a mining

plan modification is required, OSM and DOR will follow the

procedures outlined in paragraphs C. 1. through C.5. of this

Article.

2. OSM may establish criteria consistent with 30 CFR 746.18 to

determine which permit revisions and renewals clearly do not

constitute mining plan modifications.

3. Permit revisions or renewals on Federal lands which are

determined by OSM not to constitute mining plan modifications under

paragraph D. 1. of this Article or that meet the criteria for not

being mining plan modifications as established under paragraph D.2.

of this Article will be reviewed and approved following the

procedures set forth under Indiana law and the State Program and

paragraphs B.1. through B.5. of this Article.

4. Transfer, assignment or sale of permit rights on Federal

lands shall be processed in accordance with Indiana law and the

State Program and 30 CFR 740.13(e).

Article VII: Inspections

A. DOR will conduct inspections on Federal lands in accordance

with 30 CFR 740.4(c)(5) and prepare and file inspection reports in

accordance with the Program.

B. DOR will, subsequent to conducting any inspection pursuant to

30 CFR 740.4(c)(5), and on a timely basis, file with OSM a legible

copy of the completed State inspection report.

C. DOR will be the point of contact and primary inspection

authority in dealing with the operator concerning operations and

compliance with the requirements covered by the Agreement, except as

described hereinafter. Nothing in this Agreement will prevent

inspections by authorized Federal or State agencies for purposes

other than those covered by this Agreement. The Department may

conduct any inspections necessary to comply with 30 CFR parts 842

and 843 and its obligations under laws other than SMCRA.

D. OSM will give DOR reasonable notice of its intent to conduct

an inspection under 30 CFR 842.11 in order to provide State

inspectors with an opportunity to join in the inspection.

When OSM is responding to a citizen complaint of an imminent

danger to the public health and safety, or of significant, imminent

environmental harm to land, air or water resources, pursuant to 30

CFR 842.11(b)(1)(ii)(C), it will contact DOR no less than 24 hours

prior to the Federal inspection, if practicable, to facilitate a

joint Federal/State inspection. All citizen complaints which do not

involve an imminent danger or significant, imminent environmental

harm will be referred to DOR for action. The Secretary reserves the

right to conduct inspections without prior notice to DOR to carry

out his responsibilities under SMCRA.

Article VIII: Enforcement

A. DOR will have primary enforcement authority under SMCRA

concerning compliance with the requirements of the Agreement and the

Program in accordance with 30 CFR 740.4(c)(5). Enforcement authority

given to the Secretary under other Federal laws and Executive orders

including, but not limited to, those listed in Appendix A (attached)

is reserved to the Secretary.

B. During any joint inspection by OSM and DOR, DOR will have

primary responsibility for enforcement procedures, including

issuance of orders of cessation, notices of violation, and

assessment of penalties. DOR will inform OSM prior to issuance of

any decision to suspend or revoke a permit on Federal lands.

C. During any inspection made solely by OSM or any joint

inspection where DOR and OSM fail to agree regarding the propriety

of any particular enforcement action, OSM may take any enforcement

action necessary to

[[Page 6156]]

comply with 30 CFR parts 843, 845, and 846. Such enforcement action

will be based on the standards in the Program, SMCRA, or both, and

will be taken using the procedures and penalty system contained in

30 CFR parts 843, 845, and 846.

D. DOR and OSM will promptly notify each other of all violations

of applicable laws, regulations, orders, or approved mining permits

subject to this Agreement, and of all actions taken with respect to

such violations.

E. Personnel of DOR and the Department of the Interior,

including OSM, will be mutually available to serve as witness in

enforcement actions taken by either party.

F. This Agreement does not affect or limit the Secretary's

authority to enforce violations of Federal laws other than SMCRA.

Article IX: Bonds

A. DOR and the Secretary will require each operator who conducts

operations on Federal lands to submit a performance bond payable to

the State of Indiana and the United States to cover the operator's

responsibilities under SMCRA and the Program. Such performance bond

will be conditioned upon compliance with all requirements of the

SMCRA, the Program, State rules and regulations, and any other

requirements imposed by the Secretary or the Federal land management

agency. Such bond will provide that if this Agreement is terminated,

the portion of the bond covering the Federal lands will be payable

only to the United States. DOR will advise OSM of annual adjustments

to the performance bond pursuant to the Program.

B. Performance bonds will be subject to release and forfeiture

in accordance with the procedures and requirements of the Program.

Where surface coal mining and reclamation operations are subject to

an approved mining plan, a performance bond shall be released by the

State after the release is concurred in by OSM.

C. Submission of a performance bond does not satisfy the

requirements for a Federal lease bond required by 43 CFR Subpart

3474 or lessee protection bond required in addition to a performance

bond, in certain circumstances, by section 715 of SMCRA.

Article X: Designating Land Areas Unsuitable for all or Certain

Types of Surface Coal Mining and Reclamation Operations and

Activities and Valid Existing Rights (VER) and Compatibility

Determinations

A. Unsuitability Petitions

1. Authority to designate Federal lands as unsuitable for mining

pursuant to a petition, including the authority to make substantial

legal and financial commitment determinations pursuant to section

522(a)(6) of SMCRA, is reserved to the Secretary.

2. When either DOR or OSM receives a petition to designate land

areas unsuitable for all or certain types of surface coal mining

operations that could impact adjacent Federal or non-Federal lands

pursuant to section 522(c) of SMCRA, the agency receiving the

petition will notify the other of its receipt and the anticipated

schedule for reaching a decision, and request and fully consider

data, information and recommendations of the other. OSM will

coordinate with the Federal land management agency with jurisdiction

over the petition area, and will solicit comments from the agency.

B. Valid Existing Rights and Compatibility Determinations

The following actions will be taken when requests for

determinations of VER pursuant to section 522(e) of SMCRA or for

determinations of compatibility pursuant to section 522(e)(2) of

SMCRA, and received prior to or at the time of submission of a PAP

that involves surface coal mining and reclamation operations and

activities:

1. For Federal lands within the boundaries of any areas

specified under section 522(e)(1) of SMCRA, OSM will determine

whether VER exists for such areas.

For private in holdings within section 522(e)(1) areas, DOR,

with the consultation and concurrence of OSM, will determine whether

surface coal mining operations on such lands will or will not affect

the Federal interest (Federal lands as defined in section 701(4) of

SMCRA). OSM will process VER determination requests on private in

holdings within the boundaries of section 522(e)(1) areas where

surface coal mining operations affects the Federal interest.

2. For Federal lands within the boundaries of any national

forest where proposed operations are prohibited or limited by

section 522(e)(2) of SMCRA and 30 CFR 761.11(b), OSM will make the

VER determinations. OSM will process requests for determinations of

compatibility under section 522(e)(2) of SMCRA.

3. For Federal lands, DOR will determine whether any proposed

operation will adversely affect any publicly owned park and, in

consultation with the State Historic Preservation Officer, places

listed in the National Register of Historic Sites, with respect to

the prohibitions or limitations of section 522(e)(3) of SMCRA. DOR

will make the VER determination for such lands using the State

Program. DOR will coordinate with any affected agency or agency with

jurisdiction over the proposed surface coal mining and reclamation

operations.

In the case that VER is determined not to exist under section

522(e)(3) of SMCRA or 30 CFR 761.11(c), no surface coal mining

operations will be permitted unless jointly approved by DOR and the

Federal, State or local agency with jurisdiction over the publicly

owned park or historic place.

4. DOR will process and make determinations of VER on Federal

lands, using the State Program, for all areas limited or prohibited

by section 522(e)(4) and (5) of SMCRA as unsuitable for mining. For

operations on Federal lands, DOR will coordinate with any affected

agency or agency with jurisdiction over the proposed surface coal

mining and reclamation operation.

Article XI: Termination of Cooperative Agreement

This Agreement may be terminated by the Governor or the

Secretary under the provisions of 30 CFR 745.15.

Article XII: Reinstatement of Cooperative Agreement

If this Agreement has been terminated in whole or in part it may

be reinstated under the provisions of 30 CFR 745.16.

Article XIII: Amendment of Cooperative Agreement

This Agreement may be amended by mutual agreement of the

Governor and the Secretary in accordance with 30 CFR 745.14.

Article XIV: Changes in State or Federal Standards

A. The Secretary or the Governor may from time to time

promulgate new or revised performance or reclamation requirements or

enforcement and administration procedures. Each party will, if it

determines it to be necessary to keep this Agreement in force,

change or revise its regulations or request necessary legislative

action. Such changes will be made under the procedures of 30 CFR

part 732 for changes to the Program and under the procedures of

section 501 of SMCRA for changes to the Federal lands program.

B. DOR and the Secretary will provide each other with copies of

any changes to their respective laws, rules, regulations or

standards pertaining to the enforcement and administration of this

Agreement.

Article XV: Changes in Personnel and Organization

Each party to this Agreement will notify the other, when

necessary, of any changes in personnel, organization and funding, or

other changes that may affect the implementation of this Agreement

to ensure coordination of responsibilities and facilitate

cooperation.

Article XVI: Reservation of Rights

This Agreement will not be construed as waiving or preventing

the assertion of any rights in this Agreement that the state or the

Secretary may have under laws other than SMCRA or their regulations

including but not limited to those listed in Appendix A.

----------------------------------------------------------------------

Bruce Babbitt,

Secretary of the Interior.

----------------------------------------------------------------------

Date

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Frank O'Bannon,

Governor of Indiana.

----------------------------------------------------------------------

Date

Appendix A

1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et

seq., and implementing regulations.

2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and

implementing regulations, including 43 CFR part 3480.

3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321

et seq., and implementing regulations, including 40 CFR part 1500.

4. The Endangered Species Act, as amended, 16 U.S.C. 1531 et

seq., and implementing regulations, including 50 CFR part 402.

[[Page 6157]]

5. The Fish and Wildlife Coordination Act, as amended, 16 U.S.C.

661 et seq.; 48 Stat. 401.

6. The National Historic Preservation Act of 1966, 16 U.S.C. 470

et seq., and implementing regulations, including 36 CFR part 800.

7. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing

regulations.

8. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et

seq., and implementing regulations.

9. The Resource Conservation and Recovery Act of 1976, 42 U.S.C.

6901 et seq., and implementing regulations.

10. The Reservoir Salvage Act of 1960, amended by the

Preservation of Historical and Archaeological Data Act of 1974, 16

U.S.C. et seq.

11. Executive Order 11593 (May 13, 1971), Cultural Resource

Inventories on Federal Lands.

12. Executive Order 11988 (May 24, 1977), for flood plain

protection.

13. Executive Order 11990 (May 24, 1977), for wetlands

protection.

14. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et

seq., and implementing regulations.

15. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et

seq.

16. The Constitution of the United States.

17. Surface Mining Control and Reclamation Act of 1977, 30

U.S.C. 1201 et seq.

18. 30 CFR Chapter VII.

19. The Constitution of the State of Indiana.

20. Indiana Surface Coal Mining and Reclamation Act (P.L. 1--

1995, SEC. 27) at Ind. Code 14-34 et seq.

21. Indiana Department of Natural Resources, Coal Mining and

Reclamation Operations, Rules and Regulations, 310 Ind. Admin. Code

12.

[FR Doc. 99-2911 Filed 2-5-99; 8:45 am]

BILLING CODE 4310-05-P