[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17283]
[[Page Unknown]]
[Federal Register: July 15, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
Indiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the Indiana permanent
regulatory program (hereinafter referred to as the Indiana program)
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
The amendment (Program Amendment Number 93-3) consists of revisions to
Indiana's Surface Coal Mining and Reclamation Rules concerning
delegation of authority, ultimate authority, conduct of certain
proceedings and record keeping by the administrative law judge (ALJ).
The amendment is intended to revise the Indiana Administrative Code
(IAC) rules to implement statutory changes contained in the 1991 Senate
Enrolled Act (SEA) 154.
EFFECTIVE DATE: July 15, 1994.
FOR FURTHER INFORMATION CONTACT:
Mr. Roger W. Calhoun, Director, Indianapolis Field Office, Office of
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal
Building, 575 North Pennsylvania Street, Room 301, Indianapolis, IN
46204, Telephone (317) 226-6166.
SUPPLEMENTARY INFORMATION:
I. Background on the Indiana Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Indiana Program
On July 29, 1982, the Indiana program was made effective by the
conditional approval of the Secretary of the Interior. Information
pertinent to the general background on the Indiana program, including
the Secretary's findings, the disposition of comments, and a detailed
explanation of the conditions of approval of the Indiana program can be
found in the July 26, 1982 Federal Register (47 FR 32107). Subsequent
actions concerning the conditions of approval and program amendments
are identified at 30 CFR 914.10, 914.15, and 914.16.
II. Submission of the Amendment
By letter dated June 4, 1991 (Administrative Record Number IND-
0894), the Indiana Department of Natural Resources (IDNR) submitted a
proposed amendment to the Indiana program concerning statutes enacted
by Indiana under SEA 154 from the 1991 Indiana Legislative Session. The
amendments included provisions concerning requirements for hearings,
and changes in the responsibilities of the director of the IDNR and the
Natural Resources Commission (NRC). OSM approved the proposed
amendments on June 23, 1992 (57 FR 27928).
By letter dated April 2, 1993 (Administrative Record Number IND-
1217), Indiana submitted proposed program amendment number 93-3.
Program amendment 93-3 consists of changes to the Indiana rules
concerning delegation of authority, ultimate authority, conduct of
certain proceedings, and record keeping by the ALJ. The changes to the
Indiana rules reflect the statutory changes contained in the 1991 SEA
154 discussed above.
OSM announced receipt of the proposed amendment in the April 23,
1993, Federal Register (58 FR 21693), and, in the same notice, opened
the public comment period and provided opportunity for a public hearing
on the adequacy of the proposed amendment. The comment period closed on
May 24, 1993. Upon review of the proposed amendments, OSM identified
additional changes to the rules which had not been previously reviewed
and approved by OSM. On September 21, 1993, OSM reopened the public
comment period and invited public comment on those changes which were
not previously identified as amendments subject to public comment (58
FR 48996). The public comment period closed on October 6, 1993. OSM
reopened the public comment period on March 28, 1994 (59 FR 14375),
after Indiana submitted a version of the amendment which differed from
the original submittal. The public comment period closed on April 12,
1994.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment to the Indiana program. Revisions which are not
discussed below concern nonsubstantive wording changes, or revise
paragraph notations to reflect organizational changes resulting from
this amendment.
1. 310 IAC 0.6-1-2 Applicability of Rule
(a) Subsection 2(a) is amended by replacing the term ``department''
with the term ``commission.'' In effect, under this amendment,
administrative law judges conduct proceedings for the NRC rather than
the IDNR. Under Public Law 28-199, SEA 362 (referred to as the
``Sunset'' law), Indiana amended Indiana Code (IC) IC 14-3-3-3(e) to
provide that the Indiana NRC shall appoint administrative law judges.
The proposed amendment, therefore, is consistent with IC 14-3-3-3(e) as
amended by SEA 362. OSM approved the amendments to IC 14-3-3-3(e) made
by SEA 362 on August 2, 1991 (56 FR 37016). While there is no direct
Federal counterpart to the proposed provision at subsection 2(a), the
Director finds the proposed amendment is not inconsistent with SMCRA
section 503 concerning the establishment of State programs.
(b) Subsection 2(b) is amended to provide that 310 IAC 0.6-1-8 and
310 IAC 0.6-1-12 do not apply if the ALJ is the NRC. The proposed
language does not render the Indiana program less effective for the
following reasons. 310 IAC 0.6-1-8 pertains to automatic changes of the
ALJ. Since the NRC is the ultimate authority for the IDNR, the
provision at 310 IAC 0.6-1-8 concerning automatic changes of the ALJ
would not apply. 310 IAC 0.6-1-12 also would not apply because section
310 IAC 0.6-1-12 only pertains to orders from other than the ultimate
authority. While there is no direct Federal counterpart to the proposed
provision at 2(b), the Director finds the proposed amendment is not
inconsistent with SMCRA section 503.
(c) This new subsection provides that 310 IAC 0.6-1-12, concerning
objections to recommendations of an ALJ, does not apply if IC 4-21.5-4
concerning emergency orders, or if sections 310 IAC 0.6-1-2.5(b)
concerning administrative reviews by an ALJ, or (c) concerning final
orders by an ALJ apply. Additionally, the proposed language provides
that a party may seek judicial review under IC 4-21.5-5 of a final
order made by an ALJ under 310 IAC 0.6-1-2.
There is no direct Federal counterpart to the proposed language.
The Director finds, however, that the proposed language is not
inconsistent with SMCRA because the public has the right to appeal
decisions by the regulatory authority under IC 4-21.5-5 concerning
judicial review.
2. 310 IAC 0.6-1-2.5 Ultimate Authority
This new section is added to provide at subsection 2.5(a) that the
NRC is the ultimate authority for the IDNR for proceedings under rule
310 IAC 0.6-1, except as provided in subsections 2.5 (b) and (c). In
subsection 2.5(b), the ALJ is the ultimate authority for administrative
reviews under IC 13-4.1 or 310 IAC 12, except for proceedings
concerning the approval or disapproval of a permit application or
permit renewal under IC 13-4.1-4-5 and proceedings for suspension or
revocation of a permit under IC 13-4.1-11-6. In subsection 2.5(c), an
order made by an ALJ granting or denying temporary relief from a
decision of the director of the IDNR is a final order of the
department.
The proposed language is consistent with the Indiana provisions
contained in its ``Sunset law'' (Pub. L. 28-199, SEA 362). While there
is no Federal counterpart to section 2.5, the Director finds that the
proposed language is not inconsistent with SMCRA section 503 concerning
the establishment of State programs.
3. 310 IAC 0.6-1-17 Record of Proceedings
This new section is added to provide (in subsection 17(a)) that the
record required to be kept by an ALJ under IC 4-21.5-3-14 commences
with the filing of one of the following with the director of the IDNR:
(1) A petition for administrative review under IC 4-21.5-3-7; (2) a
complaint under IC 4-21.5-3-8; (3) a proceeding before an ALJ under IC
4-21.5-4.
New subsection 17(b) provides that the record required to be kept
by an ALJ consists of the official record as set forth in IC 4-21.5-3-
33.
New subsection 17(c) provides that in addition to subsections 17
(a) and (b), subsection 17(c) applies to proceedings concerning the
approval or disapproval of a permit application, permit revision
application, or permit renewal under IC 13-4.1-4-5.
Upon a timely objection before or during a hearing, the ALJ shall
exclude testimony or exhibits which are offered but which identify or
otherwise address matters which were not part of the ``record before
the director'' under IC 13-4.1-4-5. The ``record before the director''
includes each of the following: (1) The permit; (2) the permit
application; (3) documentation tendered or referenced in writing by the
applicant or an interested person for the purposes of evaluating, or
used by the IDNR to evaluate the application; (4) the analyses of the
IDNR in considering the application, including the expertise of the
IDNR's employees and references used to evaluate the application; (5)
documentation received under IC 13-4.1-4-2, including the conduct and
results of any informal conference or public hearing under IC 13-4.1-4-
2(c); (6) correspondence received or generated by the department
relative to the application, including letters of notification, proofs
of filing newspaper advertisements, and timely written comments from an
interested person.
Upon review of the amendment, OSM informed Indiana that the
proposed language at subsection 17(c) appears to limit the record
before the director of the IDNR (director) to a degree which would
prevent a full public hearing on the application. In response to OSM's
concerns, Indiana stated that the State differs with OSM's
interpretation of both the intent and application of the proposed
language (Administrative Record Number IND-1311).
Indiana stated that the Division of Reclamation of the IDNR agrees
with OSM that evidence ``created after an agency decision, or otherwise
not fairly available to the proponent prior to that decision, is
important in determining the propriety of the issuance or denial of a
permit.'' Indiana further stated that ``[E]xclusion of valid evidence
which was not fairly available prior to the agency action would deny
aggrieved individuals a fair opportunity to present evidence and
arguments regarding a particular permit application'' and would
``thwart the fundamental protection purpose of SMCRA.''
In order to clarify the Division's interpretation, Indiana stated
that ``[i]t is not our interpretation that a party should be afforded
unlimited license to submit any and all `evidence' which that party
believes relevant.'' ``Clearly,'' the State asserted, ``any information
before the agency during the initial decision making process is
relevant in a subsequent administrative review proceeding.''
``However,'' the State added, ``a party should not be permitted to `sit
on their rights' during the entire permit review and public comment
periods, thereby denying the reviewing agency the benefit of crucial
information, and subsequently challenge the propriety of the agency
decision based upon information withheld by the `aggrieved' party.''
(Administrative Record No. IND-1311).
In a letter to Indiana dated February 2, 1994 (Administrative
Record Number IND-1353), OSM stated its agreement with Indiana's
concerns as noted above. However, despite the Division's interpretation
of what should or should not be included in the record before the
director, OSM stated that it appears that it would be the ALJ, and not
the Division of Reclamation, which would decide what evidence could or
could not be considered at a hearing or a pre-hearing conference. The
ALJ's would decide these issues when presented with objections to the
admission of evidence alleged to be outside of the record made before
the director.
In response, Indiana stated in a letter dated February 18, 1994
(Administrative Record Number IND-1337), that it disagreed with OSM's
interpretation that a plain language reading of the proposed language
at 310 IAC 0.6-1-17(c) requires exclusion of evidence generated after a
decision, or not fairly available in advance of the agency decision.
Instead, Indiana offered reasons why it believes the proposed language
affords sufficient flexibility to permit the introduction of such
evidence.
Indiana asserted that the proposed language provides that
subsections 17 (a) and (b) apply to permit review proceedings.
Subsection 17(b) states that the ``record'' includes the ``official
record'' under IC 4-21.5-3-33. IC 4-21.5-3-33(b)(4) provides, in part,
that the agency record includes ``evidence received or considered.''
``Similarly,'' the State asserts, ``IC 4-21.5-3-33(b)(6) provides that
the agency record includes proffers of proof and objections and rulings
on them.'' The Division of Reclamation interprets the above-referenced
provisions as being sufficiently general to allow the introduction of
evidence generated after, or not fairly available in advance of the
agency decision under review.
Indiana noted that 310 IAC 0.6-1-17(c) provides that ``* * *
nothing in this subsection precludes the admission of testimony or
exhibits which are limited to an explanation or analysis of materials
included in the record before the director, or the manner in which the
materials were applied, used, or relied upon in evaluating the
application.'' The Division of Reclamation interprets this provision
``as providing sufficient flexibility to permit the introduction of
evidence generated after, or not fairly available in advance of the
agency decision as explanation or analysis evidence.'' (Administrative
Record No. IND-1337).
The Director agrees that the provisions cited by Indiana could
indeed be interpreted as to allow the introduction of some evidence
generated after, or not fairly available in advance of the agency
decision. Again, however, the ALJ's will be charged with interpreting
this regulation, not the IDNR.
Subsection 514(c) of SMCRA and 30 CFR 775.11(b)(1) require that
hearings conducted by State regulatory authorities on permitting
decisions must be of record and adjudicatory in nature. Indiana meets
those standards. Consequently, Indiana's proposed language is no less
stringent than SMCRA and no less effective than the Federal
regulations. The Director understands that under this rule some
evidence and documentation could be ruled inadmissible by an ALJ in a
post-decisional hearing. However, this rule does not prevent such
evidence and documentation from being remanded by an ALJ to the
regulatory authority for analysis and reconsideration of its permit
decision. In this way, evidence submitted which is deemed relevant and
important to a permit decision can be considered, while at the same
time assuring that permit decisions remain in the hands of the
regulatory authority.
4. 310 IAC 0.6-1-9 Defaults, Dismissals, Agreed Orders, and Consent
Decrees
Subsection 9(a) has been amended to provide that an ALJ may, on its
own motion or the motion of a party, enter a nonfinal order of default
or dismissal, as appropriate, and submit the nonfinal order to the
secretary of the NRC for final action if any of the described
conditions are met. Prior to this amendment, the rule only provided for
nonfinal orders of dismissal by the ALJ. New subsection 9(a)(3) is
added to provide that the ALJ may enter a nonfinal order of default or
dismissal where the party which initiated the administrative review
requests the proceeding be dismissed, and every other party joins or
acquiesces in the dismissal. In addition, new subsection 9(a)(4) is
added to provide that where the ALJ may enter a nonfinal default or
dismissal order, a default or dismissal could be entered in a civil
action.
New subsection 9(b) provides that an ALJ shall approve an agreed
order or consent decree entered by the parties, if it is: (1) Clear and
concise; and (2) lawful.
New subsection 9(c) provides that an ALJ may enter a nonfinal order
of default or a nonfinal order of involuntary dismissal only following
the issuance of a proposed order of default or proposed order of
dismissal under IC 4-21.5-3-24.
New subsection 9(d) provides that the secretary of the NRC, as the
designee of the NRC under IC 4-21.5-3-28(b), may affirm the entry of a
nonfinal default order, dismissal order, or consent decree. The
secretary of the NRC has exclusive authority to approve, remand, or
submit to the commission for final action, any nonfinal order or decree
entered by an ALJ under section 310 IAC 0.6-1-9. A party which opposes
the entry of a final order by the secretary of the NRC must file a
written objection, and the ALJ and any other party may file a written
response to the objection.
Subsection 9(e) is amended to provide that an order of default,
order of dismissal, agreed order, or consent decree made by the
secretary of the NRC is a final order of the IDNR and is made with
prejudice, unless otherwise specified in the order or decree. Prior to
the proposed amendment, the rule did not include an order of default by
the Secretary as a final order of the IDNR, nor did it specify the
secretary of the NRC as the designee of the IDNR for purposes of
issuing final orders.
New subsection 9(f) provides that an order of default, order of
dismissal, agreed order, or consent decree made by an ALJ, where acting
as the ultimate authority for the IDNR under section 310 IAC 0.6-1-
2.5(b), is a final order of the department unless otherwise specified
in the order or decree. A person may seek judicial review of a final
order entered under 310 IAC 0.6-1-9(f) as provided in IC 4-21.5-5.
There are no direct counterparts to the proposed rules. The
Director finds, however, that the proposed rules are not inconsistent
with SMCRA at section 514 concerning decisions of the regulatory
authority and appeals, and the Federal regulations at 30 CFR Part 775
concerning administrative and judicial review of decisions.
IV. Summary and Disposition of Comments
Federal Agency Comments
Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i),
comments were solicited from various interested Federal agencies. No
agency comments were received concerning the proposed amendments to the
Indiana program.
Public Comments
The public comment period and opportunity to request a public
hearing was announced in the April 23, 1993, Federal Register (58 FR
21693). The comment period closed on May 24, 1993. The public comment
period was reopened on September 21, 1993 (58 FR 48996) and again on
March 28, 1994 (59 FR 14375). These comment periods closed on October
6, 1993, and April 12, 1994, respectively. No one requested an
opportunity to testify at the scheduled public hearing so no hearing
was held. The Indiana Coal Council, Inc. (ICC) commented in support of
the proposed amendments.
Ms. F. K. Harris commented that the proposed amendment at 310 IAC
0.6-1-17(c), which authorizes the ALJ to exclude testimony or exhibits
which are offered but which identify matters which were not part of the
``record before the director,'' inappropriately limits the evidence
which can be introduced at a permit review hearing. The Director
disagrees. As discussed above in Finding 3, SMCRA at section 514(c) and
the Federal regulations at 30 CFR 775.11(b)(1) provide that hearings
conducted by State regulatory authorities on permitting decisions must
be of record and adjudicatory in nature. Indiana meets those standards.
The proposed language may allow some information or documentation to be
excluded from post-decisional hearings. However, this proposal does not
prevent and ALJ at a permit hearing from remanding relevant and
important information and documentation to the regulatory authority for
analysis and reconsideration of its permit decision. Such a remand
would benefit the State in its interest in issuing only those permits,
revisions, and renewals which should be issued.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the EPA with respect to
any provisions of a State program amendment that relate to air or water
quality standards promulgated under the authority of the Clean Water
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et
seq.). The Director has determined that this amendment contains no
provisions in these categories and that EPA's concurrence is not
required.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. IND-1221). EPA
did not respond to OSM's request.
V. Director's Decision
Based on the findings above, the Director is approving Indiana's
program amendment number 93-3 as submitted by Indiana on April 2, 1993,
and clarified by OSM on September 21, 1993, and March 28, 1994.
The Federal regulations at 30 CFR Part 914 codifying decisions
concerning the Indiana program are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 9, 1994.
Robert J. Biggi,
Acting Assistant Director, Eastern Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 914--INDIANA
1. The authority citation for part 914 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. In Sec. 914.15, paragraph (aaa) is added to read as follows:
Sec. 914.15 Approval of regulatory program amendments.
* * * * *
(aaa) The following amendment (Program Amendment Number 93-3) to
the Indiana program as submitted to OSM on April 2, 1993, and clarified
on September 21, 1993, and March 28, 1994, is approved effective July
15, 1994: 310 IAC 0.6-1-2 concerning applicability of the rule; 310 IAC
0.6-1-2.5 concerning ultimate authority for the Indiana Department of
Natural Resources; 310 IAC 0.6-1-9 concerning defaults, dismissals,
agreed orders, and consent decrees, and 310 IAC 0.6-1-17 concerning
record of the director for surface coal mining permits.
[FR Doc. 94-17283 Filed 7-14-94; 8:45 am]
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