[Federal Register Volume 60, Number 103 (Tuesday, May 30, 1995)]
[Proposed Rules]
[Pages 28069-28073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13157]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[IN-122, IN-123, IN-124]
Indiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
-----------------------------------------------------------------------
SUMMARY: OSM is announcing receipt of three proposed amendments to the
Indiana regulatory program (hereinafter [[Page 28070]] referred to as
the ``Indiana program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). All three proposed amendment packages
revise the Indiana Administrative Code (IAC) regulations. The first
amendment package amends the Indiana program at both 310 IAC 0.6 and
310 IAC 12 by revising the response to petitions for review and the
suspension or revocation of permits under Indiana law at IC 13-4.1. The
second amendment revises revegetation standards for success for
nonprime farmland for surface and underground coal mining and
reclamation operations under IC 13-4.1. The third amendment revises the
Small Operator Assistance Program (SOAP) regulations. The proposed
amendments are intended to revise the Indiana program to be consistent
with the corresponding Federal regulations. The amendments also
incorporate changes desired by the State that address various parts of
the State regulations.
DATES: Written comments must be received by 4 p.m., E.D.T., June 29,
1995. If requested, a public hearing on the proposed amendment will be
held on June 26, 1995. Requests to speak at the hearing must be
received by 4 p.m., E.D.T. on June 14, 1995.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Roger W. Calhoun, Director, Indianapolis
Field Office at the first address listed below.
Copies of the Indiana program, the proposed amendments, a listing
of any scheduled public hearings, and all written comments received in
response to this document will be available for public review at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. Each requester may receive one free copy of
the proposed amendments by contacting OSM's Indianapolis Field Office.
Roger W. Calhoun, Director, Indianapolis Field Office, Office of
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal
Building, Room 301, Indianapolis, Indiana 46204, telephone: (317) 226-
6166.
Indiana Department of Natural Resources, 402 West Washington Street,
Room C256, Indianapolis, Indiana 46204, telephone: (317) 232-1547.
FOR FURTHER INFORMATION CONTACT:
Roger W. Calhoun, Director, Indianapolis Field Office, Telephone: (317)
226-6166.
SUPPLEMENTARY INFORMATION:
I. Background on the Indiana Program
On July 29, 1982, the Secretary of the Interior conditionally
approved the Indiana program. Background information on the Indiana
program, including the Secretary' findings, the disposition of
comments, and the conditions of approval can be found in the July 26,
1982, Federal Register (47 FR 32107). Subsequent actions concerning the
conditions of approval and program amendments can be found at 30 CFR
914.10, 914.15, and 914.16.
II. Discussion of the Proposed Amendments
A. Indiana Program Amendment Number 95-1
By letter dated May 3, 1995 (Administrative Record No. IND-1459),
the Indiana Department of Natural Resources (IDNR) submitted to OSM
State program amendment number 95-1 consisting of revisions to 310 IAC
0.6-1-5 and 310 IAC 12-6-6.5 concerning the response to petitions for
review and the suspension or revocation of permits under IC 13-4.1.
310 IAC 0.6-1-5 Petition for Review; Response
Indiana proposes several nonsubstantive wording changes, subsection
and regulation reference changes, and paragraph notation changes to
reflect the organizational changes made throughout this section.
Indiana is proposing to amend subsection (c) to require the
director of IDNR or a delegate to issue an order ``of permit suspension
or revocation pursuant to IC 13.4.1-11-6'' in place of an order ``to
show cause why the permit should not be revoked or suspended.'' In
conjunction with this proposed change, Indiana proposes to amend
subsections (c), (c)(2), (d), (e), (e)(1)(A), (e)(4), (f), and existing
(g)(2) [proposed (h)(2)] by changing existing language from ``an order
to show cause'' to ``an order of permit suspension or revocation.''
At subsection (d), Indiana is clarifying that an order of permit
suspension or revocation is governed by IC 4-21.5-3-6.
Indiana is proposing to amend the language of subsection (e) to
allow a permittee who desires to contest an order of permit suspension
or revocation to file ``a petition for review pursuant to IC 4-21.5-3-
7'' rather than filing ``an answer specifically denying those
allegations of the order to show cause which the permittee desires to
contest.'' In conjunction with this proposed revision, Indiana proposes
to amend subsections (f), (g)(1), existing (g)(3) [proposed (i)(2)],
and existing (h)(3) [proposed (k)(2)] by changing the existing language
from ``an answer'' to ``a petition for review.''
Indiana is proposing to revise subsection (f) to read as follows:
If a petition for review is not filed by the permittee under
subsection (e), the order of permit suspension or revocation shall
become an effective and final order of the commission without a
proceeding pursuant to IC 13-4.1-11-6(b).
Indiana is proposing to revise the existing language at subsection
(g)(1) and to add new provisions at subsections (g)(1)(A), (g)(1)(B),
(g)(1)(B)(A) and (B), and new (g)(2) as follows:
(g)(1) If a petition for review is filed by the permittee under
subsection (e), and a hearing on the order is desired by the permittee,
the matter shall be assigned to an administrative law judge for a
proceeding under IC 4-21.5-3. The proceeding is commenced when the
permittee files a petition for review under subsection (e). In a
hearing conducted under this section, the director has the burden of
going forward with evidence demonstrating that the permit in question
should be suspended or revoked. This burden shall be satisfied if the
director establishes a prima facie case that: (A) A pattern of
violations of any requirements of IC 13-4.1, 310 IAC 12, or any permit
conditions required under IC 13-4.1 or 310 IAC 12 exists or has
existed; and (B) the violations were: (A) willfully caused by the
permittee; or (B) caused by the unwarranted failure of the permittee to
comply with any requirements of IC 13-4.1, 310 IAC 12, or any permit
conditions required under IC 13-4.1 or 310 IAC 12. For the purposes of
this subsection, the unwarranted failure of the permittee to pay any
fee required under IC 13-4.1 or 310 IAC 12 constitutes a pattern of
violations and requires the issuance of an order of permit suspension
or revocation. (2) If the director demonstrates that the permit in
question should be suspended or revoked, the permittee has the ultimate
burden of persuasion to show cause why the permit should not be
suspended or revoked. A permittee may not challenge the fact of any
violation that is the subject of a final order of the director.
Indiana is proposing to relocate the provisions of existing
subsections (g)(2) and (g)(2) (A) through (D) to new subsections (h)
and (h) (1) through (4); to amend the provisions of new subsection (h)
by requiring the administrative law judge to issue
[[Page 28071]] findings and a written recommendation to the commission
``to affirm, modify, or vacate the order of permit suspension or
revocation''; and to relocate the reference to ``the administrative law
judge'' to the last sentence in new subsection (h) and to delete this
reference from new subsections (h)(1) through (4).
Indiana is proposing to move the provisions of subsection (g)(3) to
new subsection (i).
Indiana is proposing to relocate the provisions of existing
subsection (g)(4) to new subsection (j) and to amend the provisions by
deleting the first sentence.
In response to a required amendment at 30 CFR 914.16(ff), Indiana
proposes the deletion of the provision immediately following existing
subsection (g)(4)(B). This provision allows issuance of the
administrative law judge's findings and nonfinal order within sixty
(60) days after conclusion of a permit suspension or revocation
hearing.
Existing subsection (h) is proposed to be moved to new subsection
(k) and the following revisions are proposed. At new subsection (k),
the language ``the director issues a recommended order under subsection
(f) or'' is deleted; the final order of the commission shall be entered
within ``forty-five (45)'' days rather than ``fifty (50)'' days; and
the language ``director's recommended order or the'' is deleted. The
language in existing subsection (h)(1) ``ninety (90) days following
receipt of the order to show cause by the permittee, where the
permittee does not comply with the requirements of subsection (c)'' is
deleted.
310 IAC 12-6-6.5 Suspension or Revocation of Permits
Indiana is proposing to amend the language of subsection (a) to
require the director of IDNR to issue ``to the permittee an order of
permit suspension or revocation'' in place of ``an order to the
permittee requiring the permittee to show cause why the permit and a
right to mine under IC 13-4.1 should not be suspended or revoked.''
At subsection (c), Indiana is proposing to revise the language
which requires the director to issue ``a show cause order as provided
in 310 IAC 0.6-1-5(c)'' by replacing it with language which requires
the director to issue ``an order of permit suspension or revocation as
provided in 310 IAC 0.6-1-5. In conjunction with the above revisions,
Indiana is proposing to amend subsections (d), (e), and (g) by changing
the type of order from ``show cause order'' to ``order of permit
suspension or revocation'' and by revising regulation references.
At subsection (f), Indiana is changing the phrase ``[i]f the
committee suspends or revokes a permit'' to ``[i]f a permit is
suspended or revoked.''
B. Indiana Program Amendment Number 95-2
By letter dated May 3, 1995 (Administrative Record Number IND-
1460), the IDNR submitted program amendment number 95-2. This amendment
revises 310 IAC 12-5-64.1 and 310 IAC 12-5-128.1 pertaining to
revegetation standards for success for nonprime farmland for surface
and underground coal mining operations under IC 13-4.1.
310 IAC 12-5-64.1+ (Surface Mining) and 12-5-128.1 (Underground
Mining) Revegetation; Standards for Success for Nonprime Farmland
Since the revisions being proposed for surface mining at Sec. 12-5-
64.1 are identical to those being proposed for underground mining at
Sec. 12-5-128.1, they will be combined for ease of discussion.
Indiana proposes paragraph notation changes to reflect the
organizational changes made throughout subsections (c).
Indiana is, also, proposing to revise subsections (c) by correcting
its reference to the ``Soil Conservation Service'' to the ``Natural
Resources Conservation Service'' throughout.
Subsections (c)(3) concern the production success standards for
revegetated pastureland areas. Indiana is proposing to relocate the
provision in existing subsections (c)(4), which requires that if the
current Natural Resources Conservation Service predicted yield by soil
map units is used to determine production of living plants then the
standard for success shall be a weighted average of the predicted
yields for each unmined soil type which existed on the permit areas at
the time the permit was issued, to subsections (c)(3)(B).
Indiana is proposing to delete the existing provision in
subsections (c)(3)(C) for determining production of living plants on
pastureland and is proposing to add the following provision.
(C) A target yield determined by the following formula: Target
Yield=NRCS Target Yield x (CCA/10 Year CA) where: NRCS Target
Yield=the average yield per acre, as predicted by the Natural Resources
Conservation Service, for the crop and the soil map units being
evaluated. The most current yield information at the time of permit
issuance shall be used, and shall be contained in the appropriate
sections of the permit application. CCA=the county average for the crop
for the year being evaluated as reported by the United States
Department of Agriculture crop reporting service, the Indiana
Agricultural Statistics Service. 10 Year CA=the ten (1) Year Indiana
Agricultural Statistics Service county average, consisting of the year
being evaluated and the nine (9) preceding years.
Indiana is proposing to add new subsections (c)(3)(D) which allow
other methods approved by the director of IDNR to be used in
determining success of production of living plants on the revegetated
area.
Existing subsections (c)(6) are redesignated subsections (c)(5).
These subsections concern the success standards for production on
revegetated cropland areas. Indiana is proposing to relocate the
provision in existing subsections (c)(7), which requires that if the
current Natural Resources Conservation Service predicted yield by soil
map units is used to determine production of living plants then the
standard for success shall be a weighted average of the predicted
yields for each unmined soil type which existed on the permit areas at
the time the permit was issued, to redesignated subsections (c)(5)(B).
Indiana is proposing to delete the provision in existing
subsections (c)(6)(C) for determining production of living plants on
cropland and is proposing to add the following provision to
redesignated subsections (c)(5)(C).
(C) A target yield determined by the following formula: Target
Yield=CCA x (NRCSP/NRCSC) where; CCA=the county average for the crop
for the year being evaluated as reported by the United States
Department of Agriculture crop reporting service, the Indiana
Agricultural Statistics Service. NRCSP=the weighted average of the
current Natural Resources Conservation Service predicted yield for each
croppable, unmined soil which existed on the permit at the time the
permit was issued. NRCSC=the weighted average of the current Natural
Resources Conservation Service predicted yield for each croppable,
unmined soil which is shown to exist in the county on the most current
county soil survey. A croppable soil is any soil which the Natural
Resources Conservation Services has defined as being in capability
class I, II, III, or IV.
Indiana is proposing to add new subsections (c)(5)(D) which would
allow other methods approved by the director [[Page 28072]] of IDNR to
be used in determining success of production of living plants on
revegetated areas.
Indiana is proposing to move from existing subsections (c)(7) to
new subsections (c)(5)(E) the provision which requires that once the
method for establishing the standards has been selected, it may not be
modified without the approval of the director.
C. Indiana Program Amendment Number 95-3
By letter dated May 3, 1995 (Administrative Record Number IND-
1461), Indiana submitted State program amendment number 95-3. This
amendment revises the SOAP regulations at 310 IAC 12-3 to more closely
reflect the latest changes to 30 CFR Part 795.
310 IAC 12-3-130 Small Operator Assistance; Definitions
Indiana proposes to add two new definitions to this section as
follows:
Program administrator means the state or federal official within
the regulatory authority who has the authority and responsibility for
overall management of the Small Operator Assistance Program; and
Qualified laboratory means a designated public agency, private
firm, institution, or analytical laboratory that can provide the
required determination of probable hydrologic consequences or statement
of results of test boring or core samplings or other services as
specified at 30 IAC 12-3-133 under the Small Operator Assistance
Program and that meets the standards of 310 IAC 12-3-134.
310 IAC 12-3-131 Small Operator Assistance; Eligibility for Assistance
Indiana is proposing the following revisions to its regulations
pertaining to eligibility for assistance.
In the introductory sentence of Sec. 12-3-131, the language ``who
establishes the following'' is replaced with the language ``if he or
she.''
At Sec. 12-3-131(1), the language ``[a]n intention'' is replaced by
the word ``intends.''
At Sec. 12-3-131(2), the criteria for eligibility for assistance is
revised by providing that the probable total attributed annual
production for all locations will not exceed three hundred thousand
(300,000) tons.
At Sec. 12-3-131(2)(B) and (C), the percentage of ownership of
applicant is changed from five percent to ten percent with respect to
the pro rata share which ownership will play in determining attributed
coal production.
310 IAC 12-3-132.5 Small Operator Assistance; Application Approval and
Notice
Indiana is proposing to add the following new Sec. 12-3-132.5
pertaining to application approval and notice.
(a) If the program administrator finds the applicant eligible, he
or she shall inform the applicant in writing that the application is
approved. (b) If the program administrator finds the applicant
ineligible, he or she shall inform the applicant in writing that the
application is denied and shall state the reasons for denial.
310 IAC 12-3-133 Small Operator Assistance; Program Services and Data
Requirements
Indiana is proposing to amend 310 IAC 12-3-133 as follows:
At subsection (a), the existing language is deleted and the
following language is added.
(a) To the extent possible with available funds, the program
administrator shall select and pay a qualified laboratory to make the
determination and statement and provide other services referenced in
paragraph (b) of this section for eligible operators who request
assistance. Data collection and analysis may proceed concurrently with
the development of mining and reclamation plans by the operator.
At subsection (b), the existing language is revised to read as
follows:
(b) The program administrator shall determine the data needed for
each applicant or group of applicants. Data collected and the results
provided to the program administrator shall be sufficient to satisfy
the requirements for: (1) The determination of the probable hydrologic
consequences of the surface mining and reclamation operation in the
proposed permit area and adjacent areas, including the engineering
analyses and designs necessary for the determination in accordance with
310 IAC 12-3-47 and 310 IAC 12-3-81, and any other applicable
provisions of the Act; (2) the drilling and statement of the results of
test borings or core samplings from the proposed permit area, in
accordance with 310 IAC 12-331 and 310 IAC 12-369 and any other
applicable provisions of the Act; (3) the development of cross-section
maps and plans required by 310 IAC 12-3-39 and 310 IAC 12-3-76; (4) the
collection of archaeological and historic information and related plans
required by 310 IAC 12-3-29, 310 IAC 12-3-67, 310 IAC 12-3-38, 310 IAC
12-3-75, and any other archaeological and historic information required
by the regulatory authority; (5) pre-blast surveys required by 310 IAC
12-3-43; and (6) the collection of site-specific resources information,
the production of protection and enhancement plans for fish and
wildlife habitats required by 310 IAC 12-3-46.5 and 310 IAC 12-3-68.5
and information and plans for any other environmental values required
by the regulatory authority under the Act.
310 IAC 12-3-134 Small Operator Assistance; Qualified Laboratories
Indiana proposed several revisions to subsections (a) and (b).
These subsections, as revised, read as follows:
(a) To be designated a qualified laboratory, a firm shall
demonstrate that it--(1) Is staffed with experienced, professional
personnel in the fields applicable to the work to be performed; (2) has
adequate space for material preparation, cleaning, and sterilizing
equipment, and has stationary equipment, storage, and space to
accommodate work loads during peak periods; (3) meets applicable
federal or state safety and health requirements; (4) has analytical,
monitoring and measuring equipment capable of meeting the applicable
standards; (5) has the capability of collecting necessary field samples
and making hydrologic field measurements and analytical laboratory
determinations by acceptable hydrologic, geologic, or analytical
methods in accordance with the requirements of 310 IAC 12-3-30 through
310 IAC 12-3-33, 310 IAC 12-3-47, 310 IAC 12-3-68 through 310 IAC 12-3-
71, and any other applicable provisions of the ACT. Other appropriate
methods or guidelines for data acquisition may be approved by the
program administrator; and (6) has the capability of performing
services for either the determination or statement referenced in 310
IAC 12-3-133.
(b) Subcontractors may be used to provide some of the required
services provided their use is identified at the time a determination
is made that a firm is qualified and they meet requirements specified
by the program administrator.
310 IAC 12-3-135 Small Operator Assistance; Applicant Liability
Indiana is proposing to redesignate the introductory paragraph of
Sec. 12-3-135 as subsection (a), to revise the existing applicant
reimbursement requirements in subdivisions (1) through (4), and to add
a waiver of reimbursement provision at subsection (b). Revised
subdivisions (1) through (4) and new subsection (b) reads as follows:
(a)(1) submits information, fails to submit a permit application
within one (1) year from the date of receipt of the
[[Page 28073]] approved laboratory report, or fails to mine after
obtaining a permit; (2) the program administrator finds that the
operator's actual and attributed annual production of coal for all
locations exceeds three hundred thousand (300,000) tons during the
twelve (12) months immediately following the date on which the operator
is issued the surface coal mining and reclamation permit; (3) the
permit is sold, transferred, or assigned to another person and the
transferee's total actual and attributed production exceeds the three
hundred thousand (300,000) ton production limit during the twelve (12)
months immediately following the date on which the permit was
originally issued. Under this subdivision, the applicant and its
successor are jointly and severally obligated to reimburse the
regulatory authority; or (4) the applicant does not begin mining within
six (6) months after obtaining the permit.
(b) The program administrator may waive the reimbursement
obligation if he or she finds that the applicant at all times acted in
good faith.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the Indiana program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the Indianapolis Field Office
will not necessarily be considered in the final rulemaking or included
in the Administrative Record.
Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,
E.D.T. on June 14, 1995. The location and time of the hearing will be
arranged with those persons requesting the hearing. If no one requests
and opportunity to testify at the public hearing, the hearing will not
be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing will end after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards or subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject to this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated OSM will be implemented by the State. In making
the determination as to whether this rule would have a significant
economic impact, the Department relief upon the data and assumptions
for the corresponding Federal regulations.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 23, 1995.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 95-13157 Filed 5-26-95; 8:45 am]
BILLING CODE 4310-05-M
