[Federal Register Volume 59, Number 202 (Thursday, October 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26062]
[[Page Unknown]]
[Federal Register: October 20, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
Indiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with an exception, a proposed amendment to
the Indiana permanent regulatory program (hereinafter referred to as
the Indiana program) under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA). The amendment is a continuation of program
amendment #93-2 and consists of revisions to Indiana's Surface Coal
Mining and Reclamation Rules concerning show cause orders and
adjudicative proceedings for the suspension and revocation of permits.
The amendment is intended to revise the Indiana program to be
consistent with SMCRA and the corresponding Federal regulations.
EFFECTIVE DATE: October 20, 1994.
FOR FURTHER INFORMATION CONTACT:
Mr. Roger W. Calhoun, Director, Indianapolis Field Office, Office of
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal
Building, 575 North Pennsylvania Street, Room 301, Indianapolis, IN
46204, Telephone (317) 226-6166.
SUPPLEMENTARY INFORMATION:
I. Background on the Indiana Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the Indiana Program
On July 29, 1982, the Indiana program was made effective by the
conditional approval of the Secretary of the Interior. Information
pertinent to the general background on the Indiana program, including
the Secretary's findings, the disposition of comments, and a detailed
explanation of the conditions of approval of the Indiana program can be
found in the July 26, 1982 Federal Register (47 FR 32107). Subsequent
actions concerning the conditions of approval and program amendments
are identified at 30 CFR 914.10, 914.15, and 914.16.
II. Submission of the Amendment
By letter dated June 15, 1994 (Administrative Record No. IND-1374),
Indiana submitted the final-adopted language of program amendment #93-2
concerning show cause orders and adjudicative proceedings for the
suspension or revocation of permits. OSM published a final rule notice
approving, with an exception, Indiana's program amendment #93-2 on
November 18, 1993 (58 FR 60783). In that notice, OSM found that a
previously imposed required amendment, cited at 30 CFR 914.16(d), could
not be removed. Indiana's submittal of the final-adopted language of
amendment #93-2 contains Indiana's response to the required program
amendment at 30 CFR 914.16(d) and other changes made by Indiana. Since
Indiana's final adoption of amendment #93-2 occurred after OSM
published its approval of #93-2, any changes Indiana made to the
language approved by OSM on November 18, 1993, must be considered by
OSM to be the subject of a new proposed amendment.
OSM announced receipt of the proposed amendment in the July 15,
1994, Federal Register (59 FR 36114), and, in the same notice, opened
the public comment period and provided opportunity for a public hearing
on the adequacy of the proposed amendment. The comment period closed on
August 15, 1994.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment to the Indiana program. Nonsubstantive word changes
and paragraph notation changes also appear in the final adopted version
of amendment #93-2. However, only the substantive changes are discussed
below.
1. 310 IAC 0.6-1-5 Petition for Review; Response
Indiana is making numerous changes to this section. Subsection 5(c)
is reworded to provide that when the director of the Indiana Department
of Natural Resources (IDNR) determines that a permit issued pursuant to
IC 13-4.1 and 310 IAC 12 should be suspended or revoked, the director
of the IDNR (or a delegate of the director) shall issue to the
permittee an order to show cause why the permit should not be revoked
or suspended. Deleted from this paragraph is reference to IC 4-21.5-3-
8. This deletion does not render the provision less effective because
IC 4-21.5-3 continues to be cited at subsection 5(g)(1) for the
procedures to be followed if an answer is filed by the permittee
concerning a show cause order. The Director finds that these changes
are consistent with the Federal regulations at 30 CFR 843.13(a)(1)
concerning pattern of violations.
In subsection 5(c)(2), the words ``alleged in the order to show
cause'' are added after the word ``violations.'' In subsection
5(c)(2)(B) a reference to the Indiana surface coal mining regulations
at 310 IAC 12 is added at the end of the sentence. The Director finds
that these changes are consistent with 30 CFR 843.13(a).
In subsection 5(e), the first sentence is reworded by referring to
``an order to show cause.'' The word ``service'' is deleted and
replaced by ``permittee's receipt of the order to show cause.'' The
Director finds these changes to be consistent with 30 CFR 843.14
concerning service.
Subsection 5(e)(1) is amended by deleting the words ``as described
in'' following the word ``violations.'' Reference to 310 IAC 12 is
added following the second reference to IC 13-4.1. The Director finds
these changes improve the clarity of the provision and are consistent
with 43 CFR 4.1192(a), regarding answers to show cause orders.
The language in 5(e)(1)(A) is amended to provide that the answer to
the show cause order state the reasons for contesting ``that the facts
alleged in the order to show cause constitute a pattern of
violations.'' In subsection 5(e)(1)(C), the words ``to comply with IC
13-4.1, 310 IAC 12, or any permit condition required by IC 13-4.1 or
310 IAC 12'' are added at the end of the clause. The Director finds
that these changes add to the clarity of the provision are consistent
with 43 CFR 4.1192(a).
Subsection 5(f) is amended by replacing the word ``response'' with
``an answer.'' The word ``permittee's'' is added before the word
``receipt.'' ``Show cause order'' has been amended to read ``order to
show cause.'' The Director finds that these non-substantive changes add
to the clarity of the provision and can be approved.
In subsection 5(g)(1), ``a response'' is replaced by ``an answer.''
A new second sentence is added to read ``[t]he proceeding is commenced
when the permittee files an answer under subsection (e).'' In the third
sentence the phrase ``complaint and proposed order'' is changed to
``order to show cause.'' The Director finds that these changes improve
the clarity of the provision and are consistent with 30 CFR 843.13(b).
Subsection 5(g)(2) is amended to provide that the administrative
law judge (ALJ) shall ``issue findings and a written recommendation to
the commission that the permit either'' be suspended or revoked. Prior
to this change, the language provided that the ALJ shall ``order the
permit either suspended or revoked.'' The second sentence is amended to
provide ``[i]n issuing findings and a written recommendation to the
commission'' the listed standards shall apply. The Director finds that
this change is consistent with Indiana law that the Natural Resources
Commission (the commission) is the ultimate authority for decisions to
revoke permits, and the provision is consistent with 30 CFR 843.13(c)
and 43 CFR 4.1194(a).
Subsection 5(g)(2)(C) provides that the ALJ shall comply with the
requirements of IC 4-21.5-3-27(a) through IC 4-21.5-3-27(d) and IC 4-
21.5-3-27(g). Subsection 5(g)(2)(C) also provides that the provisions
of IC 4-21.5-3-27(e) and IC 4-21.5-3-27(f) shall not apply to show
cause proceedings. The Indiana statutes at IC 4-21.5-3-27 concern the
preparation of findings for final orders. IC 4-21.5-3-27 (e) and (f)
appropriately do not apply. Subsection 27(e) authorizes the ALJ to
allow the parties time after the conclusion of the hearing for the
submission of proposed findings. The substance of subsection 27(e) is
contained in proposed new subsection 310 IAC 0.6-1-5(g)(2)(D) and is,
therefore, unnecessary. Subsection 27(f) provides for a 90-day deadline
for the issuance of written findings following the hearing. Subsection
27(f), therefore, is inconsistent with the 60-day time limit for the
filing of written findings following a hearing provided for by 30 CFR
843.13(c). The Director finds that these proposed provisions are
consistent with 30 CFR 843.13(c) and 30 CFR Part 4 concerning hearings.
New subsection 5(g)(2)(D) provides that any time prior to the
conclusion of the hearing of record, the ALJ may allow the parties to
submit briefs and proposed findings. The Director finds that this
provision is consistent with the Federal hearing procedures at 43 CFR
Part 4.1126.
New subsection 5(g)(3) sets ten-day deadlines for the written
recommendations of the ALJ following a hearing or following the
permittee's answer if no hearing is requested. The Director finds this
provision to be consistent with 43 CFR 4.1194(c) and that it partially
addresses the required amendment at 30 CFR 914.16(d).
New subsection 5(g)(4) prohibits the filing of objections to a
director's recommendation under 310 IAC 0.6-1-5(f) by a person who did
not comply with 310 IAC 0.6-1-5(e) concerning contesting an order to
show cause. The Director finds that in total, the Indiana program
contains the same or similar procedural requirements as the Federal
regulations, and in particular, the proposed provision is not
inconsistent with the Federal regulations at 30 CFR 843.13 and 43 CFR
4.1191 and 4.1192.
Following subsection 5(g)(4)(B) is a provision which provides as
follows: ``[u]nder IC 13-4.1-11-6(c), the administrative law judge
shall issue the findings and a non-final order within 60 days after
conclusion of the hearing.'' This provision, which allows the ALJ 60
days to render a non-final order, would leave no time for the
commission to render its final decision and still conform to the 60-day
time limit provided by 30 CFR 843.13(c). The proposed language is also
inconsistent with proposed subsections 5(g)(3) and 5(h) which are no
less effective than the 60-day provision at 30 CFR 843.13(c).
Therefore, the Director finds that the language quoted above in this
paragraph is less effective than the Federal regulations and cannot be
approved. In addition, the Director is requiring that Indiana further
amend 310 1AC 0.6-1-5 by deleting the language quoted above.
Subsection 5(h) is amended to set a 50-day deadline for the final
order of the commission following the issuance of the director's
recommended order or the ALJ findings and written recommendations.
Amendments also set a 90-day deadline for the commission's final order
following receipt of the order to show cause by the permittee where the
permittee does not comply with the requirements of 310 IAC 0.6-1-5(e).
A 60-day deadline is set for the commission's final order following the
hearing or the ALJ's receipt of the permittee's answer filed under 310
IAC 0.6-1-5(e) if no hearing was requested nor necessary. The Director
finds this provision to be consistent with 30 CFR 843.13(c) and fully
satisfies the required program amendment at 30 CFR 914.16(d).
Subsection 5(i), which was formerly found at subsection 5(g)(1), is
amended by replacing ``administrative law judge'' with ``commission''
and adding a reference to 310 IAC 12 at the end of the first sentence.
The Director finds these changes clarify responsibilities and
procedures under the Indiana program and are consistent with 30 CFR
843.13.
Old subsection 5(j), which limited the number of hearings available
to one before the director and one before the commission, is deleted.
The Director finds that this deletion, which has no Federal
counterpart, does not render 310 IAC 0.6-1-5 inconsistent with 30 CFR
843.13 and 43 CFR 4.1190 through 4.1196, because the procedures for a
hearing remain clear in the section.
With the exceptions noted above, the Director finds that the
proposed changes to 310 IAC 0.6-1-5 are consistent with and no less
effective than the Federal regulations at 30 CFR 843.13 and 43 CFR
4.1190 through 4.1196. In addition, the Director finds that the
required program amendment codified at 30 CFR 914.16(d) is satisfied by
these amendments and can be removed.
2. 310 IAC 0.6-1-13 Awards of Litigation Expenses
Subsection 13(c) is amended by changing ``IC 13-8-5-7'' to read
``IC 13-8-15-7.'' The Director finds that this correction of the
citation does not render the provision less effective than 43 CFR
4.1294 concerning the award of costs and expenses.
3. 310 IAC 0.7-3-5 Delegations
New subsection 5(a) is added and provides that 310 IAC 0.7-3-5
governs the delegation of authority by the Natural Resources Commission
with respect to the Bureau of Mine Reclamation and with respect to the
Division of Reclamation. Subsection 5(c) is deleted. This provision
would grant the deputy director of the IDNR authority to take action to
forfeit a bond. The Director finds that there are no Federal
counterparts to the language proposed to be added and deleted, and that
the addition and deletion does not render the Indiana program less
effective than SMCRA or the Federal regulations.
IV. Summary and Disposition of Comments
Federal Agency Comments
Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i),
comments were solicited from various interested Federal agencies. No
comments were received.
Public Comments
The public comment period and opportunity to request a public
hearing was announced in the July 15, 1994, Federal Register (59 FR
36114). The comment period closed on August 15, 1994. No one commented
and no one requested an opportunity to testify at the scheduled public
hearing so no hearing was held.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the EPA with respect to
any provisions of a State program amendment that relate to air or water
quality standards promulgated under the authority of the Clean Water
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et
seq.). The Director has determined that this amendment contains no
provisions in these categories and that EPA's concurrence is not
required.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. IND-1221). EPA
did not provide any comments.
V. Director's Decision
Based on the findings above, the Director is approving, except as
noted herein, Indiana's program amendment concerning show cause orders
and adjudicative proceedings as submitted by Indiana on June 15, 1994.
As discussed in Finding 1, the Director is not approving the following
language which appears immediately after 310 IAC 0.6-1-5(g)(4)(B):
``Under IC 13-4.1-11-6(c), the administrative law judge shall issue the
findings and a non-final order within sixty (60) days after conclusion
of the hearing.'' In addition, the Director is requiring that Indiana
further amend the Indiana program by deleting the language quoted
above. Also based on Finding 1 above, the Director is removing the
required program amendment codified at 30 CFR 914.16(d).
The Federal regulations at 30 CFR part 914 codifying decisions
concerning the Indiana program are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In his
oversight of the Indiana program, the Director will recognize only the
statutes, regulations and other materials approved by him, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by Indiana of only such
provisions.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 13, 1994.
Ronald C. Recker,
Acting Assistant Director, Eastern Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 914--INDIANA
1. The authority citation for Part 914 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. In Sec. 914.15, paragraph (ccc) is added to read as follows:
Sec. 914.15 Approval of regulatory program amendments.
* * * * *
(ccc) The following amendment to the Indiana program concerning
show cause orders and adjudicative proceedings for the suspension and
revocation of permits as submitted to OSM on June 15, 1994, is
approved, except as noted herein, effective October 20, 1994: 310 IAC
0.6-1-5 concerning petition for review response, except the following
language which appears immediately after 310 IAC 0.6-1-5(g)(4)(B) is
not approved:
``Under IC 13-4.1-11-6(c), the administrative law judge shall issue
the findings and a non-final order within sixty (60) days after
conclusion of the hearing;'' 310 IAC 0.6-1-13 concerning awards of
litigation expenses; and 310 IAC 0.7-3-5 concerning delegations.
3. In Sec. 914.16, paragraph (d) is removed and reserved and
paragraph (ff) is added to read as follows:
Sec. 914.16 Required program amendments.
* * * * *
(ff) By April 15, 1995, Indiana shall amend the Indiana program by
deleting the language quoted below which immediately follows subsection
310 IAC 0.6-1-5(g)(4)(B): ``[u]nder IC 13-4.1-11-6(c), the
administrative law judge shall issue the findings and a nonfinal order
within sixty (60) days after conclusion of the hearing.''
[FR Doc. 94-26062 Filed 10-19-94; 8:45 am]
BILLING CODE 4310-05-M
