[Federal Register Volume 64, Number 25 (Monday, February 8, 1999)]
[Proposed Rules]
[Pages 6150-6157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2911]
[[Page 6149]]
_______________________________________________________________________
Part III
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 914
Surface Coal Mining and Reclamation Operations on Federal Lands; State-
Federal Cooperative Agreements; Indiana; Proposed Rule
Federal Register / Vol. 64, No. 25 / Monday, February 8, 1999 /
Proposed Rules
[[Page 6150]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[IN-142-FOR]
Surface Coal Mining and Reclamation Operations on Federal Lands;
State-Federal Cooperative Agreements; Indiana
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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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: agilmore@mcrwg.osmre.gov.
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:
agilmore@mcrgw.osmre.gov.
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
[[Page 6151]]
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
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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
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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.
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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
