[Federal Register Volume 65, Number 5 (Friday, January 7, 2000)]
[Rules and Regulations]
[Pages 1059-1063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-420]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[SPATS No. IN-146-FOR; State Program Amendment No. 98-3]
Indiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving an amendment to the Indiana regulatory program (Indiana
program) under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). Indiana proposed to add a new section to its rules. The new
section requires permittees of coal mine operations to submit an annual
report of affected area to the director of the Indiana Department of
Natural Resources (IDNR). Indiana intends to revise its program to
improve operational efficiency. We are also taking this opportunity to
make a technical correction to 30 CFR 914.16(ii) and to remove the
required amendments codified at 30 CFR 914.16(b) and 914.16(ii)(b).
[[Page 1060]]
EFFECTIVE DATE: January 7, 2000.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,
Indianapolis Field Office, Office of Surface Mining, Minton-Capehart
Federal Building, 575 North Pennsylvania Street, Room 301,
Indianapolis, Indiana 46204-1521. Telephone (317) 226-6700. Internet:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Indiana Program
II. Submission of the Proposed 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 Secretary of the Interior conditionally
approved the Indiana program. You can find 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 32107). You can find later actions on the
Indiana program at 30 CFR 914.10, 914.15, 914.16, and 914.17.
II. Submission of the Proposed Amendment
By letter dated August 31, 1999 (Administrative Record No. IND-
1668), Indiana sent us an amendment to its program under SMCRA. Indiana
sent the amendment at its own initiative. Indiana proposed to amend the
Indiana Administrative Code (IAC) by adding 310 IAC 12-5-159, which
requires permittees to submit an annual report of affected area to the
director of IDNR.
We announced receipt of the amendment in the September 15, 1999,
Federal Register (64 FR 50026). In the same document, we opened the
public comment period and provided an opportunity for a public hearing
or meeting on the adequacy of the amendment. The public comment period
closed on October 15, 1999. Because no one requested a public hearing
or meeting, we did not hold one.
III. Director's Findings
Following, under SMCRA and the Federal regulations at 30 CFR 732.15
and 732.17, are our findings concerning the amendment.
A. 310 IAC 12-5-159 Annual Report
Indiana added 310 IAC 12-5-159 to require permittees of surface
coal mining and reclamation operations to submit an annual report of
affected area to the director of IDNR. The permittees must include
information on mined land as well as surface disturbed land. Indiana
defined the term ``mined land'' at subsection (a) and defined the term
``surface disturbed land'' at subsection (b). Mined land includes land
from which coal has been extracted, land from which overburden has been
removed, and land upon which overburden or spoil has been deposited.
Mined land does not include land where only auger mining has occurred.
Surface disturbed land is land, other than mined land, that is
disturbed by surface coal mining and reclamation operations. It
includes areas where only topsoil is removed. When the surface
disturbance will be reaffected by future overburden removal or
deposition, the permittee need not report surface disturbed land in
advance of the highwall. Subsection (c) requires permittees to submit
an annual report of affected areas for each permit for surface coal
mining and reclamation operations. The permittee must report acres
mined and disturbed during the period from November 1 through October
31 of each year. The permittee must submit the report to the Director
of IDNR no later than 90 days after October 31 of each year. The report
must include the name and address of the permittee and, if different
from the permittee, the name and address of the person or persons
conducting the mining. It must also include the permit number and a
summary of acres mined and disturbed during the reporting period. The
acreage summary must include acres of mined land, acres of surface
disturbed land, and total permit acres. It must also include acres of
coal extraction by surface, auger, and highwall mining. Subsection (d)
requires the permittee to submit with the report a dated aerial
photograph of the surface coal mining and reclamation operation taken
between September 1 and December 31 of the reporting year. The
photograph must be of the same scale as the permit maps. The photograph
or a certified map must show the location of the permit boundary; acres
reported; section, township, and range lines; all public roads within
the permit area that are not permanently closed; all areas where coal
has been removed by surface, auger, or highwall mining methods; and the
highwall face as of November 1 of the reporting year. After all mining
has been completed, subsection (e) requires that when the acres are
available on a computer-aided design (CAD) or other digital data
format, the permittee must submit a report that includes a summary of
pre-mining land use acreage for the mined and surface disturbed area.
Subsection (f), requires maps, whether separate from or created upon
the photograph, to be prepared by or under the direction of and
certified by a qualified registered professional engineer or certified
professional geologist with assistance from experts in related fields
such as land surveying or landscape architecture. At subsection (g),
permits issued and land affected before the effective date of 310 IAC
12-5-159 and for which a report of affected area has not been filed,
the initial photograph must show all areas disturbed since permit
issuance. The permittee does not have to distinguish between mined land
and surface disturbed land on the initial report form, photograph, or
map. When available, the extent of auger areas must be shown. At
subsection (h), the permittee does not have to submit an annual report
if no additional acres have been disturbed during the reporting year.
There are no direct counterpart Federal regulations concerning an
annual report of affected acreage. However, section 517(b)(1) of SMCRA
requires the regulatory authority, for the purpose of administration
and enforcement of a State program or permit, to require a permittee to
establish and maintain appropriate records and to provide any
information about surface coal mining and reclamation operations that
is considered reasonable and necessary. Therefore, we find that
Indiana's new section at 310 IAC 12-5-159 will not make Indiana's rules
less stringent than SMCRA or less effective than the Federal
regulations.
B. IC 14-34-2-6(b) and (c) Conflict of Interest; 30 CFR 914.16(b)
By letter dated March 18, 1988 (Administrative Record No. IND-
0559A), Indiana submitted an amendment under 30 CFR 732.17. The
amendment included Senate Enrolled Act No. 45 that revised Indiana Code
(IC) 14-34-2-6(b) and (c) [formerly IC 13-4.1-2-3]. IC 14-34-2-6(b)
requires that in addition to the filings required under IC 35-44-1,
each member of the Indiana Natural Resources Commission (commission)
must file annually with the director of the Indiana Department of
Natural Resources (department) a statement of employment and financial
interest on a form prescribed by the department.
IC 14-34-2-6(c) contains a recusal provision that does not allow a
member of the commission to participate in a proceeding that may affect
the member's direct or indirect financial interests.
In the December 15, 1989, Federal Register (54 FR 51388), we did
not
[[Page 1061]]
approve the language in IC 14-34-2-6(b) because it implied that
commission members may not be employees of the department. The
department is the designated State regulatory authority for Indiana. We
did not approve the language in IC 14-34-2-6(c) because it implied that
members of the commission may have direct or indirect financial
interests in coal mining operations. Section 517(g) of SMCRA states
that ``[n]o employee of the State regulatory authority performing any
function or duty under this Act shall have a direct or indirect
financial interest in any underground or surface coal mining
operation.'' Based on the information we had available, we found that
members of the commission must be considered employees of the
department. Therefore, we codified the following required amendment at
30 CFR 914.16(b):
By May 15, 1990, Indiana shall submit revisions to IC 13-4.1-2-3
[IC 14-34-2-6(b) and (c)] or otherwise propose to amend its program
to be in accordance with SMCRA at section 517(g) and consistent with
the Federal regulations at 30 CFR Part 705 which require that no
employee of the State regulatory authority performing any function
or duty under SMCRA shall have a direct or indirect financial
interest in any underground or surface coal mining operation.
By letter dated June 4, 1999 (Administrative Record No. IND-1657),
Indiana provided additional justification for its provisions at IC 14-
34-2-6(b) and (c). Indiana stated that there is a legal and statutory
distinction between the department and the commission. Indiana
referenced IC 14-10, which established the commission as a separate
legal entity from the department and lists the commission's powers and
duties. Indiana indicated that the function of the commission is
somewhat analogous to that of the Indiana General Assembly, although
each is part of a different branch of government. Indiana maintained
that under IC 14-34-2-6(a), an employee of the ``department'' cannot
have a direct or indirect financial interest in a surface coal mining
operation. Further, the term ``department'' is specifically defined in
IC 14-8-2-67 to mean the Indiana Department of Natural Resources. IC
14-8-2-6(b) applies to the commission, whose members are required to
file a financial statement. Indiana stated that the procedure followed
for commission members complies with section 517(g) of SMCRA and the
implementing regulations at 30 CFR Part 705.
The underlying issue is whether members of the commission must be
considered ``employees'' for purposes of conflict of interest
reporting. Primarily, Indiana's justification statements indicate that
the financial disclosure requirements under section 517(g) of SMCRA for
employees of the State regulatory authority do not apply to members of
the commission who are not employed by the department. Those members of
the commission who are not employees would be categorized as members of
a multi-interest commission under the Federal definition of
``employee'' at 30 CFR 705.5. The Federal regulations at 30 CFR Part
705 provide separate conflict of interest requirements for members of
commissions who are not deemed employees of the State regulatory
authority.
After reviewing the Indiana Code and the October 17, 1986, preamble
for changes made to 30 CFR Part 705 (51 FR 37118), we agree that there
is a legal and statutory distinction between the department and the
commission. We also agree that the commission represents multiple
interests. IC 14-10-1 established the commission. The commission
consists of 12 members, including five citizen members appointed by the
Governor. At least two of the five citizens must have knowledge,
experience, or education in the environment or in natural resource
conservation. The remaining seven members are specified in the statute
to include: the Commissioner of the Indiana Department of
Transportation, Commissioner of the Indiana Department of Environmental
Management, Director of the Department of Commerce, Director of the
Indiana Department of Natural Resources, Chairman of the Advisory
Council for the Bureau of Water and Resource Regulation, Chairman of
the Advisory Council for the Bureau of Lands and Cultural Resources,
and the President of the Indiana Academy of Science. The powers and
duties of the commission are defined in IC 14-10-2 to include the
authority to create a division of hearings, appoint administrative law
judges, and adopt rules. The commission assumes these powers and duties
for most of the natural resource bureaus and divisions within the
State, including reclamation, fish and wildlife, forestry, state parks,
and historic preservation and archeology. IC 14-9-1 created the
department. Under IC 14-9-2 the governor must appoint the director of
the department. The director may appoint deputy directors. However,
under IC 14-9-7 other employees of the department are employed by the
director through the state personnel department.
As discussed in the preamble for changes made to 30 CFR Part 705 on
October 17, 1986:
The definition of employee consistently has been construed to
exclude members of multi-interest boards and commissions even if
those members perform decision-making functions in accordance with
state law. . . . Such groups are not covered by Section 517(g),
which generally prohibits decision makers from having any interest
in coal mining operations. Under the definition of employee, members
of a board established in accordance with State law or regulations
to represent various interests such as the coal mining industry,
forestry, conservation, agriculture, environmentalists, or
landowners, would be considered multi-interest board members.
Based on our review of the State statutes and the October 17, 1986,
preamble discussion, we find that the members of the commission are not
employees of the department, and we are removing the required amendment
at 30 CFR 914.16(b).
Indiana's statute at IC 14-34-2-6(b) requires each member of the
commission to file an annual statement of employment and financial
interest with the director of the Indiana Department of Natural
Resources. This is consistent with the Federal regulation requirements
at 30 CFR 705.11(a) for members of commissions established in
accordance with State law to represent multiple interests. Indiana's
statute at IC 14-34-2-6(c) stipulates that a member of the commission
may not participate in a proceeding that may affect the member's direct
or indirect financial interests. This is consistent with the Federal
regulation at 30 CFR 705.4(d), which requires multi-interest commission
members to recuse themselves from any proceeding which may affect their
direct or indirect financial interests. Therefore, we are approving IC
14-34-2-6(b) and (c).
C. 310 IAC 12-3-127(c)(4) Permit Reviews; Approval for Transfer,
Assignment, or Sale of Permit Rights; 30 CFR 914.16(ii)(b)
By letter dated September 26, 1994 (Administrative Record No. IND-
1401), Indiana submitted an amendment under 30 CFR 732.17. The
amendment included revisions to 310 IAC 12-3-127(c)(4) that required
the director of IDNR to not grant approval for a transfer, sale, or
assignment of rights under a permit except upon a written finding that
a ``surface coal mining and reclamation operation owned or control by
the applicant is not currently in violation of a federal or state
statute, rule, or regulation.'' In the October 29,
[[Page 1062]]
1996, Federal Register (61 FR 55743), we approved Indiana's revisions
with the requirement, codified at 30 CFR 914.16(ii)(b), that the State
amend the introductory paragraph of 310 IAC 12-3-127(c)(4) to include
the phrase ``or by any person who owns or controls the applicant''
after the word ``applicant'' in line 3, and the phrase ``or person who
owns or controls the applicant'' after the word ``applicant'' in line
7. In the April 21, 1997, Federal Register (62 FR 19450), we amended
our criteria for permit issuance at 30 CFR 773.15(b) that addressed
ownership and control information and compliance review requirements.
This action was taken in response to a decision by the U.S. Court of
Appeals for the District of Columbia Circuit that invalidated the
previous rules as inconsistent with SMCRA. The court held that SMCRA
authorizes the regulatory authority to block issuance of a permit only
for unabated violations incurred by the applicant or entities owned or
controlled by the applicant, not for violations incurred by a person
who owns or controls the permittee. Based on this court decision, we
are removing the required amendment codified at 30 CFR 914.16(ii)(b).
At the request of the Office of the Federal Register, we are also
making corrections to the subparagraph numbering under 30 CFR
914.16(ii). We are changing subparagraphs (a) through (b) to
subparagraphs (1) through (3).
IV. Summary and Disposition of Comments
Public Comments
OSM requested public comments on the proposed amendment, but did
not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from various Federal agencies with an actual or potential
interest in the Indiana program (Administrative Record No. IND-1669).
By letter dated September 20, 1999, the Mine Safety and Health
Administration commented that the proposed regulation did not conflict
with its regulations or policies (Administrative Record No. IND-1674).
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
agreement from the EPA for those provisions of the program amendment
that relate to air or water quality standards issued 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.). None of the revisions that Indiana
proposed to make in this amendment pertain to air or water quality
standards. Therefore, we did not ask the EPA to agree on the amendment.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from the EPA (Administrative Record No. IND-1669). The EPA
did not respond to our request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On September 9, 1999, we requested comments on Indiana's
amendment (Administrative Record No. IND-1669), but neither responded
to our request.
V. Director's Decision
Based on the above findings, we approve the amendment as sent to us
by Indiana on August 31, 1999. We approve the rules that Indiana
proposed with the provision that they be published in identical form to
the rules submitted to and reviewed by OSM and the public.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 914, which codify decisions concerning the Indiana
program. We are making this final rule effective immediately to
expedite the State program amendment process and to encourage Indiana
to bring its program into conformity with the Federal standards. SMCRA
requires consistency of State and Federal standards.
We are also making some editorial corrections to 30 CFR Part
914.16(ii) and removing the required amendments at 30 CFR Part
914.16(b) and 914.16(ii)(b).
VI. Procedural Determinations
Executive Order 12866
The Office of Management and Budget (OMB) exempts this rule from
review under Executive Order 12866 (Regulatory Planning and Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (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 State regulatory
programs and program amendments 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
This rule does not require an environmental impact statement since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on 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
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. Therefore, this rule will ensure that existing requirements
previously published 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 corresponding Federal regulations.
Unfunded Mandates
OSM has determined and certifies under the Unfunded Mandates Reform
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of
$100 million or more in any given year on local, state, or tribal
governments or private entities.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
[[Page 1063]]
Dated: December 17, 1999.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 914 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. Section 914.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 914.15 Approval of Indiana regulatory program amendments.
* * * * *
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Original amendment Date of final
submission date publication Citation/description
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* * * *
* * *
August 31, 1999............. January 7, 2000..... 310 12-5-159; IC 14-
34-2-6(b) and (c).
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3. Section 914.16 is amended by removing and reserving paragraph
(b) and revising paragraph (ii) to read as follows:
Sec. 914.16 Required program amendments.
* * * * *
(ii) By April 28, 1997, Indiana shall submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption, to address the following:
(1) Amend the Indiana program at 310 IAC 12-3-49/83(e)(3) to add
the requirement concerning stability analysis of each structure as is
required by 30 CFR 780.25(f) and 784.16(f).
(2) [Reserved]
(3) The Director is requiring that Indiana further amend 310 IAC
12-5-24/90(a)(9)(E) to clarify that the term ``subsection'' should be
``clause.''
[FR Doc. 00-420 Filed 1-6-00; 8:45 am]
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