[Federal Register Volume 66, Number 158 (Wednesday, August 15, 2001)]
[Rules and Regulations]
[Pages 42743-42750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20447]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[SPATS No. IN-151-FOR]
Indiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; decision on amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is not approving an amendment to the Indiana regulatory program
(Indiana program) under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act). Indiana proposed the addition of a statute
concerning post mining land use changes as nonsignificant permit
revisions. Indiana intended to revise its program to improve
operational efficiency.
EFFECTIVE DATE: August 15, 2001.
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 Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Indiana Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *'' and
``rules and regulations consistent with regulations issued by the
Secretary'' pursuant to the Act. See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Indiana program on July 29, 1982. 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 Amendment
By letter dated May 14, 1998 (Administrative Record No. IND-1606),
Indiana submitted a proposed amendment to OSM in accordance with SMCRA.
The proposed amendment concerned revisions of and additions to the
Indiana Code (IC) made by House Enrolled Act (HEA) No. 1074. Indiana
intended to revise its program to incorporate the additional
flexibility afforded by SMCRA and to provide the guidelines for permit
revisions, including incidental boundary revisions. We announced
receipt of the proposed amendment in the May 29, 1998, Federal Register
(63 FR 29365), and invited public comment on its adequacy. The public
comment period for the amendment closed June 29, 1998. During our
review of the proposed amendment, we identified concerns relating to
the proposed amendment. We notified Indiana of these concerns by letter
dated September 15, 1998 (Administrative Record No. IND-1621). By
letter dated December 21, 1998 (Administrative Record No. IND-1627),
Indiana responded to our concerns by submitting additional explanatory
information. Because Indiana did not make any substantive revisions to
the amendment, we did not reopen the public comment period. On March
16, 1999, we approved Indiana's proposed amendment, with three
exceptions (64 FR 12890). Specifically, we did not approve the
amendment at IC 14-34-5-7(a) concerning guidance for permit revisions;
the amendment at IC 14-34-5-8.2(4) concerning postmining land use
changes; and the amendment at IC 14-34-5-8.4(c)(2)(K) concerning minor
field revisions for temporary cessation of mining. On May 26, 1999, at
Indiana's request, we provided clarification of our decision on
Indiana's amendment (64 FR 28362).
On May 14, 1999, the Indiana Coal Council (ICC) filed a complaint
in the United States District Court, Southern District of Indiana, to
challenge our decision not to approve the proposed Indiana program
amendments at IC 14-34-5-7(a) and IC 14-34-5-8.2(4). Indiana Coal
Council v. Babbitt, No. IP 99-0705-C-M/S, (S. D. Ind.). On September
25, 2000, the Court issued its decision on the ICC's complaint. The
Court found that, in the case of IC 14-34-5-7(a) concerning guidance
for permit revisions, OSM was not arbitrary and capricious in not
approving the amendment. Therefore, the Court upheld our decision.
However, in the case of IC 14-34-5-8.2(4) concerning postmining land
use changes, the Court found that our decision was arbitrary and
capricious, and remanded the matter to OSM for ``further
consideration.'' In accordance with the Court's ruling, we opened the
public comment period for section IC 14-34-5-8.2(4) of Indiana's
proposed amendment submitted on May 14, 1998, in the January 11, 2001,
Federal Register (66 FR 2374). In the same document, we provided an
opportunity for a public hearing or meeting on the adequacy of the
amendment. The public comment period closed on February 12, 2001. We
received comments from two industry groups and one Federal agency.
However, 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 the Director of OSM's findings concerning the proposed
amendment to the Indiana program.
[[Page 42744]]
A. Indiana's Proposed Amendment at IC-14-34-5-8.2(4)
Indiana's proposed amendment at IC 14-34-5-8.2(4) provides that a
proposed permit revision is nonsignificant, and therefore not subject
to the notice and hearing requirements of IC 14-34, if it is a
postmining land use change other than a change described in IC 14-34-5-
8.1(8). IC 14-34-5-8.1(8) provides that a proposed permit revision is
significant if a postmining land use will be changed to a residential
land use, a commercial or industrial land use, a recreational land use,
or developed water resources meeting MSHA requirements for a
significant impoundment.
B. Summary of the Court's Decision
In the U.S. District Court case, the ICC argued that our original
decision not to approve IC 14-34-5-8.2(4) was arbitrary and capricious
for two reasons: (1) Because we offered conflicting reasons for our
decision; and (2) because we gave no reason for distinguishing
Indiana's definition of a significant permit revision from the nearly
identical program we approved for Tennessee.
In evaluating whether we offered conflicting reasons for our
decision, the Court stated that it did appear that we had changed our
position as to whether the Director of the Indiana Department of
Natural Resources (IDNR) retained discretion to determine if a proposed
permit revision concerning a postmining land use change is significant.
But, the Court stated that our ultimate conclusion--that the amendment
was inconsistent with the Act because it would allow for certain
significant changes to be made without notice and hearing
requirements--never changed. Thus, the Court found that we had not been
arbitrary and capricious just because we changed our position as it
concerned the INDR Director's discretion.
However, the Court found that we did not distinguish Indiana's
definition of a significant permit revision from the definition in the
Tennessee program. The Court concluded that, by adding the provision at
IC 14-34-5-8.2(4), Indiana made its program essentially the same as the
Tennessee program by providing that if a change did not fall under the
definition of significant, it was nonsignificant. Specifically, the
Court stated that ``it appears that the Tennessee and Indiana statutes
would dictate the same results with respect to classifying certain
postmining land use changes as either significant or nonsignificant.''
In the case of the example we used in our March 16, 1999, decision--a
change from cropland to forest--the Court states, ``[a]ssuming such
change would be significant, it is not one of the changes listed in
Tennessee's approved definition of `significant.' Thus, by default, it
would be `nonsignificant' under the Tennessee program''--just as it
would under the Indiana program. Indiana Coal Council v. Babbit, No IP
99-0705-C-M/S, slip op. at 14, (S. D. Ind., Sept. 25, 2000). Thus, it
appeared to the Court that the existing Tennessee program and the
proposed Indiana amendment would dictate the same results with respect
to classifying certain postmining land use changes as significant or
nonsignificant. The Court stated that we provided no explanation for
not approving Indiana's statute when we had a regulation under the
Tennessee program that was nearly identical. Because it appeared that
we departed from our prior rulings and failed to explain why, the Court
found that our ruling was arbitrary and capricious.
C. Analysis of the Court's Decision
The existing Tennessee program and the proposed Indiana amendment
would not dictate the same results with respect to classifying certain
postmining land use changes as significant or nonsignificant. Under the
Tennessee program, the Director of OSM retains discretion to determine
whether land use changes other than those listed in 30 CFR
942.774(c)(8) are significant or nonsignificant permit revisions. A
postmining land use is not, by default, a nonsignificant permit
revision just because it is not one of the changes listed in
Tennessee's approved definition of ``significant.'' Instead, the
Director of OSM makes that determination on a case-by case basis. We
have always maintained that this discretion is a necessary part of the
Tennessee program. In the December 5, 1988, preamble to 30 CFR 942.774,
we state, ``OSMRE believes that some flexibility in language is
necessary to allow for contingencies or applications that are not
possible to foresee'' (53 FR 49104). Thus, in the case of the example
we cited in our March 16, 1999, decision--a change from cropland to
forest--the change may be processed as either a significant or
nonsignificant permit revision depending upon the Director of OSM's
determination.
Indiana's provision at IC 14-34-5-8.2(4), on the other hand,
eliminates the IDNR Director's discretion to determine whether a
postmining land use change would classify as significant. Under IC 14-
34-5-8.2(4), all postmining land use changes other than those listed at
IC 14-34-5-8.2(4) have to be nonsignificant. In the case of the example
we cited in our March 16, 1999, decision--a change from cropland to
forest--the change must be considered nonsignificant. Indiana's
proposed amendment would not allow for any other determination.
Clearly, the two programs are different. For these reasons, we conclude
that our decision not to approve the Indiana amendment at IC 14-34-5-
8.2(4) was not a departure from our prior ruling in the Tennessee
program. Instead, our decision was consistent with our longstanding
position that some flexibility in language is necessary to allow for
contingencies or applications of the rule that were not covered by the
provision at 30 CFR 942.774(c). IC 14-34-5-8.2(4) would eliminate such
flexibility.
D. Director's Findings
Given the differences between the Indiana proposed amendment and
the approved Tennessee program, and taking into account all the
comments we received on this amendment, we find that our original
decision not to approve IC 14-34-5-8.2(4) was correct in its result. We
agree with the Court that our original decision not to approve required
additional consideration and explanation of our rationale. Based on our
additional consideration and explanation, we find IC 14-34-5-8.2(4)
conflicts with section 511(a)(2) of SMCRA, which requires notice and
hearing requirements for any significant alterations in a reclamation
plan. IC 14-34-5-8.2(4) would allow many changes that could produce
significant alterations in a reclamation plan without notice and
hearing requirements. For example, it would allow a change from
cropland to forest without notice and hearing requirements. Depending
on the circumstances, this change could be a significant permit
revision. The IDNR Director must be free to determine if such a change
would constitute a significant permit revision so as to assure that
appropriate procedures are provided for the public's participation in
the revision of reclamation plans as required under section 102(i) of
SMCRA. Indiana's proposed amendment at IC 14-34-5-8.2(4) does not
provide for such a determination.
In its December 21, 1998, letter, Indiana stated that it interprets
this section to mean that the Director of the State regulatory
authority retains discretion under IC 14-34-5-8.2(5) to determine
whether land use changes other than those listed in IC 14-34-5-8.1(8)
could be significant revisions. Indiana further stated that all permit
[[Page 42745]]
revision decisions are appealable under the Indiana Administrative
Orders and Procedures Act.
We agree that the IDNR Director retains discretion as to whether a
permit revision is significant or nonsignificant. However, in the
instance of postmining land use changes, it is clear on its face that
the provision at IC 14-34-5-8.2(4) removes such discretion. Thus, as
explained above, the statute is inconsistent with, and less stringent
than, section 511(a)(2) of SMCRA, which requires notice and hearing
requirements for any significant alterations in a reclamation plan. The
fact that all permit revision decisions are appealable under the
Indiana Administrative Orders and Procedures Act does not justify the
inclusion of a provision in this section that is inconsistent with, and
less stringent than, section 511(a)(2) of SMCRA. Therefore, we do not
approve IC 14-34-5-8.2(4).
IV. Summary and Disposition of Comments
Federal Agency Comments
On January 5, 2001, under section 503(b) of SMCRA and 30 CFR
732.17(h)(11)(i) of the Federal regulations, we requested comments on
the amendment from various Federal agencies with an actual or potential
interest in the Indiana program (Administrative Record No. IND-1709).
The Fish and Wildlife Service (FWS) responded on January 16, 2001
(Administrative Record No. IND-1706). The FWS states that in its
previous comments dated June 19, 1998 (Administrative Record No. IND-
1615), it had expressed concern that the amendment would result in
reduced opportunities for the FWS to review land use changes that might
adversely affect fish and wildlife resources. However, the amendment to
IC 14-34-5-8.1(5), which provides that permit revisions that may result
in an adverse impact on fish, wildlife, and related environmental
values beyond that previously considered must be addressed as
significant permit revisions, appears to have satisfied its concern,
assuming that ``permit revisions'' include postmining land use changes.
The FWS states that the amendment to IC 14-35-5-8.2(4) would allow
changes from forest or fish and wildlife land to a category other than
the four specified categories to be processed as nonsignificant permit
revisions without notice and hearing requirements. The FWS contends
that such a change could be in conflict with 8.1(5) because it may
allow a postmining land use change that may result in an adverse impact
on fish, wildlife and related environmental values beyond that
previously considered to be addressed as a nonsignificant permit
revision. The FWS states that this incompatibility should be resolved
prior to approval. The FWS recommends that 8.2(4) be modified to
include 8.1(5) as well as 8.1(8).
We agree that IC 14-34-5-8.2(4) may allow a postmining land use
change that may result in an adverse impact on fish, wildlife and
related environmental values beyond that previously considered to be
addressed as a nonsignificant permit revision. For that reason, we find
that the provision conflicts with section 511(a)(2) of SMCRA, which
requires notice and hearing requirements for any significant
alterations in a reclamation plan, and we are therefore not approving
the provision. Please refer to III. Director's Findings. Because we are
not approving IC 14-34-5-8.2(4), there is no need to modify it.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the
written concurrence of 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 such air or water
quality standards. Therefore, we did not ask the EPA for its
concurrence.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from the EPA (Administrative Record No. IND-1709). 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 for amendments that may have an effect on historic
properties. On January 5, 2001, we requested comments from the SHPO and
ACHP on Indiana's amendment (Administrative Record No. IND-1706), but
neither responded to our request.
Public Comments
OSM requested public comments on the proposed amendment. We
received comments from two groups representing the coal industry. By
letter dated February 5, 2001, the ICC submitted comments on the
proposed amendment (Administrative Record No. IND-1707). Also, by
letter dated February 12, 2001, the National Mining Association (NMA)
submitted comments on the proposed amendment (Administrative Record No.
IND-1708). Both organizations provided comments supporting the
amendment. For ease of discussion, the comments have been organized by
topic and are discussed below.
In addition, in its letter dated February 5, 2001, the ICC informed
us that it had requested information from the Knoxville OSM Field
Office under the Freedom of Information Act. The ICC stated that if it
did not receive the information it requested, ``the ICC will be
requesting an extension'' to the public comment period for this
amendment. Although we did not receive a request for an extension, the
ICC submitted additional comments on the proposed amendment by a letter
dated February 28, 2001 (Administrative Record No. IND-1710). Given the
level of interest the ICC has in this proposed amendment, we have
incorporated the ICC additional comments into the discussion below.
1. Indiana Added the Proposed Language at IC 14-34-5-8.2(4) Because OSM
Recommended It
Both the ICC and the NMA contend that IC 14-34-5-8.2(4) was added
to HEA 1074 at OSM's suggestion. As support for this contention, both
organizations refer to a letter dated February 20, 1998, that we sent
Indiana, providing preliminary comments on the legislative bill that
was later enacted as HEA 1074. The ICC points out that, as originally
proposed, HEA 1074 contained the provision at IC 14-34-5-8.1
classifying certain postmining land uses as significant permit
revisions and an additional provision in IC 14-34-5-8.2 stating that a
revision is nonsignificant if it does not involve a significant change
in land use. The ICC states that in our preliminary comments:
OSM expressed concern that ``[t]he two standards for determining
which revision requirements apply to a specific land use change * *
* may result in different determinations, depending on which section
of the statute is used.'' OSM suggested ``that guidance be provided
for one or the other, but not both. * * * Generally then if a
revision doesn't meet the standards specified in the program, it is
by default that other type of revision.''
The ICC maintains that Indiana followed our suggestion and inserted
a provision at IC 14-34-5-8.2(4) which classified as nonsignificant
revisions all postmining land use changes not defined as significant
revisions at IC 14-34-5-8.1(8). The NMA asserts that
[[Page 42746]]
``[a]gencies should not recommend a course of action and then penalize
IDNR for following their advice.''
Response: The ICC has taken the comments in our February 20, 1998,
letter out of context. In the letter, we offered specific comments on
section 8.2(a)(5)(B), which provided that a revision was nonsignificant
if it did not involve a significant change in land use. We expressed
concern that the provision at 8.2(a)(5)(B) conflicted with the
provision in section 8.1(8) which provided that land use changes to
residential, commercial or industrial, recreational, or developed water
resources are significant revisions. Specifically, we stated that there
appear to be two standards for determining whether a post mining land
use change is significant. We further stated that the two standards may
result in different determinations, depending on which section of the
statute is used.
We then offered a general comment concerning permit revisions as a
whole. Specifically, we stated:
We recognize that it is not possible to list every kind of
[permit] revision that might occur. Therefore, it is difficult to
provide specific guidance that identifies all [permit] revisions
that are significant and also all those [permit revisions] that are
nonsignificant. We suggest that guidance be provided for one or the
other, but not for both. That is the approach used by most other
states. Generally, then if a [permit] revision doesn't meet the
standards specified in the program, it is by default the other type
of [permit] revision.
Thus, we were not talking specifically about postmining land use
changes when we commented, ``[g]enerally, then if a revision doesn't
meet the standards specified in the program, it is by default that
other type of revision.'' We were talking about permit revisions as a
whole. Further, it is erroneous to assume, based on this comment, that
revisions that do not meet the standards specified in a regulatory
program are automatically the other type of revision because the
comment was qualified by the word ``generally.'' The word ``generally''
clearly leaves the door open for discretion in determining if a
revision that does not meet the standards specified in a regulatory
program is significant or nonsignificant, just as the Tennessee program
does. Finally, the only suggestion in the entire paragraph was that
Indiana provide guidelines for only one type of permit revision. That
way, Indiana would have guidelines for making permit revision
determinations, but those guidelines would not eliminate Indiana's
ability to determine, on a case-by-case basis, whether a permit
revision was a significant or nonsignificant revision. Indiana did not
adopt this suggestion. Therefore, the NMA's concern that we penalized
IDNR for following our advice is unfounded.
2. OSM Tried To Not Approve the Amendment by Insisting That All
Postmining Land Use Changes Must Be Considered Significant Permit
Revisions.
Both the ICC and the NMA contend that we first attempted to justify
our decision not to approve IC 14-34-5-8.2(4) in the March 16, 1999,
final rule (64 FR 12890) by claiming that all postmining land use
changes should be treated as significant permit revisions. The ICC
implies that we made this claim when we stated that ``changes in
postmining land use are the kind of issue that the public should have
an opportunity to comment on.'' The NMA asserts that such a claim is
contradicted by the legislative history of SMCRA. The NMA states that
Congress considered but rejected specific language that would have
required a permit revision prior to modification of proposed future
land use. The NMA argues that this legislative history demonstrates
that not all modifications of future land uses must invoke notice and
hearing requirements ``as alleged by OSM.'' It may even imply that some
modifications of the proposed future land use do not require a permit
revision at all.
Response: We disagree that we attempted to justify our decision not
to approve IC 14-34-5-8.2(4) by claiming that all postmining land use
changes should be treated as significant permit revisions. We did not
approve IC 14-34-5-8.2(4) because it was inconsistent with section
511(a)(2) of SMCRA, which requires public notice and hearing procedures
for any significant alteration in a reclamation plan. Please refer to
III. Director's Findings 6. of our March 16, 1999, final rule in which
we stated:
Section 511(a)(2) of SMCRA requires the State to establish
guidelines for determining which revision requests are subject to
notice and hearing requirements. However, it also requires, at a
minimum, notice and hearing requirements for any significant
alterations in a reclamation plan. IC 14-34-5-8.2(4) would allow
many changes that could produce significant alterations in a
reclamation plan, such as a change from cropland to forest, without
notice and hearing requirements. Allowing such a change without
notice and hearing requirements is inconsistent with, and less
stringent than, section 511(a)(2) of SMCRA (64 FR 12892).
Further, we do not maintain that all postmining land use changes
should be treated as significant permit revisions, and we disagree with
the implication that we made such a claim with our statement concerning
opportunities for public comments. The central purpose of our May 26,
1999, final rule clarification was to make it clear that we in no way
intended to indicate that all land use changes other than those listed
at IC 14-34-5-8.1(8) must be considered significant revisions. Thus, we
would agree with the NMA's assertion that the legislative history of
SMCRA demonstrates that not all modifications of future land uses must
invoke notice and hearing requirements. However, we do not agree that
the legislative history implies that some modifications of the proposed
future land use do not require a permit revision at all. The ICC made
this basic contention in its comments on Indiana's proposed program
amendment at IC 14-34-5-7(a) when it argued that nothing in SMCRA
specifically states that all mining or reclamation changes are
revisions subject to regulatory authority approval (Administrative
Record No. IND-1617). However, as we explained in our decision not to
approve that proposed program amendment, we have established that all
revisions must be incorporated into the permit since they are changes
to that document (64 FR 12894). As stated above, the ICC challenged our
decision not to approve IC 14-34-5-7(a) and the Court upheld our
decision. Indiana Coal Council v. Babbitt, No IP 99-0705-C-M/S (S. D.
Ind, Sept. 25, 2000).
3. OSM Tried To Not Approve the Amendment by Claiming That It Deprived
the IDNR of Discretion.
The ICC states that we changed the reasoning behind our decision
not to approve IC 14-34-5-8.2(4) in the May 26, 1999, final rule
clarification (64 FR 28362) by claiming that the problem with the
Indiana program amendment was that it deprived IDNR of discretion to
require that post mining land use changes be treated as significant
permit revisions. The ICC points out that the IDNR had explained that
it interpreted IC 14-34-5-8.2 to mean that its Director would retain
discretion under IC 14-34-5-8.2(5) to determine that land use changes
other than those listed in IC 14-34-5-8.1(8) could be significant
permit revisions. The NMA asserts that this interpretation by the IDNR
Director refutes our argument that the proposed amendment would remove
the IDNR Director's discretion to determine whether post mining land
use changes other than the ones listed at IC 14-34-5-8.1(8) are
significant. Both the ICC and the NMA further assert that we agreed
with the IDNR's interpretation in the March 16, 1999, final decision.
The
[[Page 42747]]
ICC states that nothing in either of our prior decisions explains how
we can reconcile our statement that we agree with the IDNR's
interpretation with our ``clarified'' position that section 14-34-5-8.2
deprives the IDNR of discretion.
Response: In our May 26, 1999, final rule clarification (64 FR
28362), we specifically stated that we were supplementing our previous
findings--not replacing them. Furthermore, the Court specifically
stated that we never changed our ultimate conclusion that IC 14-34-5-
8.2(4) was inconsistent with section 511(a)(2) of SMCRA. Therefore, it
is incorrect to assert that we changed our original decision. Please
refer to III. Director's Findings 6. of our March 16, 1999, final rule
in which we stated:
Section 511(a)(2) of SMCRA requires the State to establish
guidelines for determining which revision requests are subject to
notice and hearing requirements. However, it also requires, at a
minimum, notice and hearing requirements for any significant
alterations in a reclamation plan. IC 14-34-5-8.2(4) would allow
many changes that could produce significant alterations in a
reclamation plan, such as a change from cropland to forest, without
notice and hearing requirements. Allowing such a change without
notice and hearing requirements is inconsistent with, and less
stringent than, section 511(a)(2) of SMCRA (64 FR 12892).
We published the May 26, 1999, final rule clarification at the
request of a May 12, 1999, letter we received from the IDNR. In that
letter, the IDNR asked us to ``provide clarification of the Federal
Register language which disapproved portions of the program amendment
pursuant to those issues which were subject to our May 10, 1999
discussions.''
On May 10, 1999, we held a telephone conference with
representatives from both the IDNR and the ICC to discuss the ICC's
concerns with the portions of the Indiana's May 29, 1998, amendment
that we did not approve. During that meeting, the ICC argued that our
decision not to approve IC 14-34-5-8.2(4) eliminated the IDNR's
discretion to determine whether postmining land use changes are
nonsignificant permit revisions because we had declared that all
postmining land use changes should be treated as significant permit
revisions.
In our final rule clarification, we stated that it was not our
intent to indicate that all other land use changes must be considered a
significant revision or to alter OSM's position as reflected in other
regulatory actions relating to significant permit revisions, such as
those for the Federal program in Tennessee (see the response to
comments under 3. above).
We further went on to explain that we felt it is essential for
Indiana to continue to have the discretion to determine, on a case-by-
case basis, that land use changes other than those listed in section IC
14-34-5-8.1(8) may constitute a significant revision. Thus, one of the
purposes of our clarification was to explain that, contrary to the
ICC's assertion, our decision not to approve IC 14-34-5-8.2(4) did not
eliminate IDNR's discretion to determine whether postmining land use
changes are nonsignificant permit revisions. Instead, it was ``clear on
its face that the proposed change would remove such discretion.'' Our
decision not to approve IC 14-34-5-8.2(4) preserved IDNR's discretion.
Therefore, we agreed with the IDNR when it claimed that its Director
retained discretion as to whether a change is significant or
nonsignificant. Our decision not to approve IC 14-34-5-8.2(4)
guaranteed that.
4. The Proposed Amendment Is Identical to the Federal Program in
Tennessee
The NMA contends that our objections to Indiana's proposed
amendment are particularly unusual because the current proposal at
issue was copied almost verbatim from part of the Federal SMCRA program
promulgated and approved by OSM on behalf of the State of Tennessee.
Further, the NMA argues that the language of OSM's Federal program in
Tennessee at 30 CFR 942.774 implies that items not listed as
``significant'' are not significant. The NMA states, ``the Federal
program run by OSM in Tennessee expressly considers changes to the
reclamation plan of the type being cited by the agency as objectionable
(cropland to forest) to be ``insignificant'' that do not require notice
and hearings.''
Response: The Tennessee SMCRA program provisions concerning permit
revisions at 30 CFR 942.774 do not contain a counterpart to ``the
current proposal at issue''--IC 14-34-5-8.2(4). Further, the language
at 30 CFR 942.774 does not imply that items not listed as
``significant'' are not significant. Nor does it expressly consider
changes to the reclamation plan of the type being cited by the agency
as objectionable (cropland to forest) to be ``insignificant.'' As
stated in III. Director's Findings, in the preamble to the final rule
approving 30 CFR 942.774, we explain that the language at 30 CFR
942.774 was intentionally written in such a way ``to allow for
contingencies or applications of the rule that are not possible to
foresee'' (53 FR 49104). Thus, we have always maintained that revisions
other that those found at 30 CFR 942.774 could be considered
significant.
5. The Proposed Amendment Is Similar to the Federal Program in
Tennessee
The ICC argues that IC 14-34-5-8.1 is similar to the corresponding
provision of the Federal SMCRA program adopted by OSM for the state of
Tennessee. The ICC contends that IC 14-34-5-8.1 is virtually identical
to 30 CFR 942.744(c)(8). The only way that Indiana's program differs
from Tennessee's program is that Indiana's amendment added a new
section 14-34-5-8.2(4) which provides that postmining land use changes
other than those enumerated in section 14-34-5-8.1 are classified as
nonsignificant revisions. The Tennessee program has no provision
defining nonsignificant revisions.
Response: We agree that IC 14-34-5-8.1 is virtually identical to 30
CFR 942.744(c)(8) and we acknowledged this in our March 16, 1999, final
rule when we approved IC 14-34-5-8.1 (64 FR 12892). However, we do not
agree that the only way that Indiana's program differs from Tennessee's
program is that Indiana's amendment added a new section 14-34-5-8.2(4).
For example, the Tennessee program does not have a counterpart to any
of the provisions at IC 14-34-5-8.2 concerning nonsignificant permit
revisions. Still, even if Indiana's program were similar to the
Tennessee program, Indiana's program is not entitled to instant
approval. We still must review Indiana's program to determine if it is
as stringent as the Federal program. We have determined it is not.
Please refer to III. Director's Findings.
6. OSM Has Never Exercised Discretion in Tennessee
The ICC questions whether we have in fact ever exercised our
discretion under the Federal Tennessee program to require that a
postmining land use change other than the ones specified in 30 CFR
942.774(c)(8) be treated as a significant permit revision. On January
31, 2001, under the Freedom of Information Act, the ICC submitted a
request to the OSM Knoxville Field Office for information concerning
``any correspondence, internal memoranda or notes, or permit decision
documents reflecting any decision by OSM to require any permit revision
to a surface coal mining and reclamation operations permit issued under
the federal program for the State of Tennessee * * * to be treated as a
significant permit revision.'' On February 20, 2001, the Knoxville
Field Office responded to the ICC's
[[Page 42748]]
request by providing information about one permit revision which
involved a change from non-commercial forest to an industrial
postmining land use. Thus, the ICC states that OSM, as the regulatory
authority under the Tennessee Federal program, has never required any
change in postmining land use to be treated as a significant permit
revision other than a change in one of the categories specifically
listed in 30 CFR 9472.774(c)(8). Furthermore, the ICC argues that, to
the extent that we may have retained discretion under the Tennessee
program regulations to treat other categories of postmining land use
changes as significant permit revisions, it does not appear that we
have ever had occasion to exercise that discretion. In light of this
experience under the Tennessee program, the ICC believes that we should
reevaluate our prior position that Indiana must retain such discretion
in order for its program to be no less effective than the federal
regulations. The ICC contends that if postmining land use changes other
than those specified at 30 CFR 942.774(c)(8) are not treated as
significant permit revisions in practice in Tennessee, the Indiana
program would be no less effective than OSM's rules regardless if the
IDNR has discretion to so treat them. The NMA argues that the language
of our Federal program in Tennessee does not provide for discretion by
the Director of OSM, and that we have not provided any examples of
discretion being exercised in Tennessee.
Response: As stated above in the response to comment 4. and in III.
Director's Findings, the language of our Federal program in Tennessee
does provide for discretion by the Director of OSM, as it was written
in such a way ``to allow for contingencies or applications of the rule
that are not possible to foresee'' (53 FR 49104). In fact, under the
Tennessee SMCRA program, every decision of the Director of OSM on a
land use change revision other than those listed at 30 CFR
942.774(c)(8) is discretionary.
As for whether we have ever required a postmining land use change
other than the ones specified in 30 CFR 942.774(c)(8) to be treated as
a significant permit revision, the answer is no. However, this does not
mean that we have never exercised our discretion under the Federal
Tennessee program. In fact, we maintain that every decision the
Director of OSM has made under the Federal Tennessee program relating
to postmining land use changes not listed at 30 CFR 942.774(c)(8) is an
exercise of discretion. The Director of OSM has merely determined that
the postmining land use changes to date are nonsignificant. Under
Indiana's proposed amendment, the IDNR Director would not be able to
make such a determination. As stated above in III. Director's Findings,
elimination of the IDNR Director's discretion in the Indiana program
would render Indiana's program less effective than the Federal program
and conflict with section 511(a)(2) of SMCRA. Therefore, we are not
approving the provision at IC 14-34-5-8.2(4).
Finally, the ICC argues that eliminating INDR discretion will not
affect the way in which Indiana executes its program. If that is true,
then preserving INDR discretion as we have by not approving IC 14-34-5-
8.2(4) will also not affect the way in which Indiana executes its
program. Therefore, the ICC's concerns are unwarranted.
7. The Proposed Amendment Would Not Change the Way Indiana Has Been
Handling Postmining Land Use Changes Since 1989
Both the ICC and the NMA contend that, in practice, changes in post
mining land uses of the type being proposed have not been considered
significant permit revisions under IDNR's regulations since 1989. The
ICC indicates this is because of an IDNR's Hearings Division
determination in Albrecht v. DNR, Cause #88-294R (June 13, 1989) that
postmining land uses were not significant permit revisions under IDNR's
regulations. The NMA states that we have not offered any evidence that
refutes this fact. Further, the ICC and the NMA point out that we have
not noted any problems with the IDNR's practice over the past 12 years.
Response: As stated above, if eliminating INDR discretion will not
affect the way in which Indiana executes its program, then preserving
INDR discretion as we have by not approving IC 14-34-5-8.2(4) will also
not affect the way in which Indiana executes its program. Therefore,
the ICC's and NMA's concerns are unwarranted.
8. There Is No Public Concern Over the Proposed Amendment
The ICC contend there is no need for OSM to strain for reasons to
not approve IC 14-34-5-8.2(4) because whether postmining land use
changes are treated as significant permit revisions or not, existing
provisions of the approved Indiana program already insure that
postmining land use changes cannot be approved without consultation
with the landowner or appropriate land management agency. The ICC
suggests that it is the landowner or land management agency, not the
public at large, which is most likely to be interested in proposed
postmining land use changes. The NMA points out that OSM has not
identified any public comments from the last round of notice and
comments objecting to IDNR's proposed amendment.
Response: We disagree with the contention that the public at large
is not interested in proposed postmining land use changes. In fact,
such a claim is in direct conflict with section 102(i) of SMCRA, which
states that SMRCA was designed to assure that appropriate procedures
are provided for the public participation in the revision of
reclamation plans. As we stated in III. Director's Findings, we believe
it is essential that regulatory authorities retain discretion to
determine which revisions qualify as significant permit revisions so
that the purposes of section 102(i) can be met. Therefore, we are not
approving IC 14-34-5-8.2(4).
9. OSM Does Not Define ``Significant,'' So It Should Defer to Indiana's
Definition
The NMA also argues that Indiana's proposed language is consistent
with SMCRA section 511(a)(2) because neither SMCRA nor OSM regulations
define ``significant.'' Therefore, there can be no direct showing that
the proposed amendment is ``less stringent than'' the requirement in
section 511(a)(2) of SMCRA. The NMA argues that since there is no
definition of ``significant'' in SMCRA or OSM's regulations, it is the
State regulatory authority that should determine what constitutes
``significant'' revisions to the reclamation plan. The NMA argues that
this position is supported by the fact that SMCRA and OSM's
implementing regulations clearly provide that: (1) States are supposed
to enjoy ``exclusive'' jurisdiction over the regulation of surface coal
mining and reclamation operations (30 USC 1253(a)), and (2)
nonsignificant permit revisions are subject only to the review
procedures established under the State or Federal programs (48 FR
44377). According to the NMA, then, it is appropriate for OSM to defer
to the IDNR's reasonable definition of ``significant.''
Response: Indiana defined and provided eight specific examples of
significant permit revisions at IC 14-34-5-8.1, and we approved the
provisions on March 16, 1999 (64 FR 12890). Therefore, we have accepted
the IDNR's reasonable definition of significant permit revisions.
Furthermore, Indiana's definition of significant permit revisions is
not all inclusive. We recognized this when we stated in our approval
that
[[Page 42749]]
``this list cannot be considered all inclusive, as there are many other
changes not listed at IC 14-34-5-8.1 that would be considered
significant permit revisions.'' Indiana's provision at IC 14-5-34-
8.2(4) would make the provision at IC 14-34-5-8.1(8) all inclusive,
thereby eliminating the possibility that a postmining land use change
not listed at IC 14-34-5-8.1(8) could be considered a significant
permit revision. Thus, the provision at IC 14-34-5-8.2(4) conflicts
with Indiana's own reasonable definition of significant permit
revisions. Our decision not to approve IC 14-34-5-8.2(2) is consistent
with our approval of Indiana's reasonable definition of significant
permit revisions.
10. Indiana Must Have Regulations That Are as Effective as OSM's
The NMA points out that for almost twenty years, OSM has held that
States do not have to adopt regulations that are identical to the
Secretary's. Further, States do not need to demonstrate that
alternative regulations are necessary to meet local requirements,
environment, or agricultural conditions. Instead, States must
demonstrate that their laws and regulations are as effective as the
Secretary's in meeting the requirements of the Act. The NMA contends
that there is no evidence in the record that IDNR's proposal would be
less effective. The NMA states that OSM should be faithful to its
longstanding policies of allowing States freedom to develop regulations
that meet their needs, and approve the proposed amendment, especially
when the evidence in the record supports the adoption of the proposed
amendment and does not suggest that it would be less effective than OSM
regulations. The NMA maintains that Indiana's proposed language is
consistent with SMCRA section 511(a)(2).
Response: As explained under III. Director's Findings, the
provision at IC 14-34-5-8.2(4) would eliminate the IDNR Director's
discretion to determine if a revision other than those listed at IC 14-
34-8.1(8) would constitute a significant permit revision and make it
impossible for the IDNR Director to assure that appropriate procedures
are provided for the public participation in the revision of
reclamation plans as required under section 102(i) of SMCRA. Thus,
Indiana's provision is less effective than the Secretary's regulations.
Therefore, we are not approving it.
11. OSM Has Violated Section 503(c) of SMCRA and Section 553 of the
Administrative Procedure Act (APA)
The NMA asserts that OSM failed to provide any new rationale or
basis for not approving Indiana's proposed amendment at IC 14-34-5-
8.2(4) in our January 11, 2001, Federal Register notice. The NMA
contends that OSM has violated section 503(c) of SMCRA and section 553
of the Administrative Procedure Act by failing to allow the IDNR and
the public a meaningful opportunity to comment on why OSM plans to deny
the proposed amendments to the Indiana regulatory program. The NMA
points to a Court ruling in Macon County Samaritan Memorial Hospital v.
Shalala, 7 F. 3d 762, 765-766 (8th Cir. 1993); quoting Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 42 (1983) to
argue that if a new agency rule reflects departure from the agency's
prior policy, the agency must apply reasoned analysis for change beyond
that which may be required when the agency does not act in the first
instance. The NMA also points to a Court ruling in Office of
Communications of the Unitied Church of Christ v. FCC, 560 F. 2d 529,
532 (2nd Cir. 1977) and contends that for an agency to change its
previous holdings, there must be a thorough and comprehensive statement
of reasons for the decision. The NMA states that it would be much more
meaningful to provide comments as to whether Indiana's amendment
satisfies the applicable program approval criteria of 30 CFR 732.15 if
OSM explained in the notice exactly what part of the criteria the
agency believes are not satisfied. The NMA states because OSM has
chosen not to provide any additional information for the record and has
not provided any new rationale for denying the amendment, the amendment
should be approved. If OSM plans to attempt to not approve the
amendment a second time, SMCRA and the APA require that it must at
least provide the public and IDNR a meaningful opportunity to comment
on that new rationale before the agency makes a final decision.
Response: SMCRA and the Federal regulations are clear as to the
review and decision process for proposed changes to State programs. We
have followed those procedures. The U.S. District Court, Southern
District of Indiana, required us to reconsider our initial decision.
Therefore, we provided an opportunity to the public to comment on the
proposed amendment as required by law.
V. Director's Decision
Based on the above findings, we are not approving the amendment as
remanded to us for further consideration by the U.S. District Court,
Southern District of Indiana on September 25, 2000.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 914, which codify decisions concerning the Indiana
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the state's program demonstrates that the state has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effectively immediately will expedite
that process and will encourage Indiana to bring its program into
conformity with the Federal standards. SMCRA requires consistency of
State and Federal standards.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
changes to approved State programs that are not approved by OSM. In our
oversight of the Indiana program, we will recognize only the statutes,
regulations and other materials approved by the Secretary or by us,
together with any consistent implementing policies, directives and
other materials. We will require the enforcement by Indiana of only
such provisions.
VI. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the
[[Page 42750]]
purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary under SMCRA.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 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 because each 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.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed State regulatory program provision does not
constitute a major Federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
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; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, federal, state, or local government agencies, or geographic
regions; and (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.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
Dated: August 24, 2001.
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 914.17 is amended by revising the section heading and
paragraph (b) to read as follows:
Sec. 914.17 State regulatory program and proposed program amendment
provisions not approved.
* * * * *
(b) The amendment at Indiana Code 14-34-5-8.2(4) submitted on May
14, 1998 concerning postmining land use changes is not approved
effective August 15, 2001.
* * * * *
[FR Doc. 01-20447 Filed 8-14-01; 8:45 am]
BILLING CODE 4310-05-P