Indiana Regulatory Program

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 announcing the approval of a proposed program 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 93-5) consists

of changes to the Indiana Administrative Code (IAC) rules at 310 IAC

12. The proposed amendment pertains to definitions of terms used in the

Indiana program. The amendment is intended to revise the Indiana

program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: June 16, 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 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 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 32071). 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 July 2, 1993 (Administrative Record Number IND-

1272), the Indiana Department of Natural Resources (IDNR) submitted

proposed program amendment number 93-5. Program amendment 93-5 consists

of proposed changes to the Indiana program definitions at 310 IAC 12-

0.5.

OSM announced receipt of the proposed amendment in the August 5,

1993, Federal Register (58 FR 41669), 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

September 7, 1993. The scheduled public hearing was not held as no one

requested an opportunity to provide testimony.

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 not specifically

discussed below concern nonsubstantive wording changes, or revised

cross-references and paragraph notations to reflect organizational

changes resulting from this amendment.

A. Revisions to Indiana's Rules That Are Substantively Identical to the

Corresponding Federal Regulations

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State regulation Subject Federal counterpart

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310 IAC 12-0.5-23...................................... Coal Mine Waste.................. 30 CFR 701.5

310 IAC 12-0.5-55...................................... Half-Shrub....................... 30 CFR 701.5

310 IAC 12-0.5-64...................................... Impounding Structure............. 30 CFR 701.5

310 IAC 12-0.5-104..................................... Reference Area................... 30 CFR 701.5

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Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, the Director finds that

Indiana's proposed rules are no less effective than the Federal

regulations.

B. Revisions to Indiana's Rules That Are Not Substantively Identical to

the Corresponding Federal Regulations

1. 310 IAC 12-0.5-6 Affected Area

In the introductory paragraph, Indiana has deleted the word

``each'' and added the word ``any'' in its place. With this change,

Indiana has clarified that ``affected area'' means any one or more of

the specified examples at subsection 6 (1) through (7). The Director

finds that the proposed change is substantively identical to the

counterpart Federal regulations at 30 CFR 701.5 concerning the

definition of ``affected area.'' The Director notes that the Indiana

definition of ``affected area'' continues to be the subject of a

required program amendment codified at 30 CFR 914.16(n) (see 58 FR

43260, August 16, 1993).

2. 310 IAC 12-0.5-53 Ground Cover

The term ground cover is defined to mean the area of ground which

is covered by the combined aerial parts of vegetation and the litter

that is produced naturally onsite, expressed as percentage of the total

area of measurement. At least 95 percent of the species present must be

species listed in the revegetation plan.

The first sentence of the proposed definition is substantively

identical to the Federal definition of ``ground cover'' at 30 CFR

701.5. Indiana added the second sentence to establish a standard

guideline for all to follow. The Director finds that the second

sentence is not inconsistent with SMCRA and the Federal regulations.

3. 310 IAC 12-0.5-139 Valid Existing Rights (VER)

Indiana has proposed the following language for the definition of

VER:

(a) Valid existing rights means, for the purposes of 310 IAC 12-1-

1, 310 IAC 12-2-1, and 310 IAC 12-2-5 the following:

(1) Except for haul roads:

(A) Those property rights in existence on August 3, 1977, that were

created by a legally binding conveyance, lease, deed, contract, or

other document which authorized the applicant to conduct surface coal

mining operations; and

(B) The person proposing to conduct surface coal mining operations

on such lands:

(i) Had been validly issued or exercised good faith effort to

obtain, on or before August 3, 1977, all state and federal permits

necessary to conduct operations on those lands;

(ii) Can demonstrate to the director that the coal is both needed

for and immediately adjacent to, an ongoing surface mining operation

for which all permits were obtained prior to August 3, 1977; or

(iii) Can demonstrate that the operation was in existence or

operation at the time an area became protected under IC 13-4.1-14-1 or

at the time of the coming into existence, within the prohibited

distance of a structure, road, cemetery, or other activity listed in IC

13-4.1-14-1.

(2) For haul roads:

(A) A recorded right-of-way, recorded easement, or a permit for a

coal haul road recorded as of August 3, 1977;

(B) Any other road in existence as of August 3, 1977; or

(C) Any haul road that was in existence or operating at the time an

area became protected under IC 13-4.1-14-1, or at the time of the

coming into existence, within the prohibited distance of a structure,

road, cemetery, or other activity listed in IC 13-4.1-14-1.

(b) The interpretation of the terms of a document used to establish

a valid existing right is based upon the common law concerning the

interpretation of documents conveying mineral rights. If there is no

applicable common law, the interpretation is based upon the following:

(1) The usage and custom at the time and place where a document

came into existence.

(2) A showing by the applicant that the parties to the document

contemplated the right to conduct the same underground or surface

activities for which the applicant claims a valid existing right.

(c) ``Valid existing rights'' does not mean the mere expectation of

a right to conduct surface coal mining operations or the right to

conduct underground coal mining. Examples of rights which alone do not

constitute valid existing rights include, but are not limited to, coal

exploration permits or licenses, applications or bids for leases, or

where a person has only applied for a federal or state permit.

(d) If an area comes under the protection of IC 13-4.1-14-1 after

August 3, 1977, valid existing rights are present if a validly

authorized surface coal mining operation exists on that area on the

date the protection comes into existence.

The Federal definition of VER at 30 CFR 761.5 has been affected by

judicial decision and parts have been suspended by OSM (see 51 FR

41954, November 20, 1986). Specifically, 30 CFR 761.5 paragraphs (a)

and (c) are suspended, and subparagraph (d)(2) is suspended insofar as

it incorporates the takings test of suspended paragraph (a).

Additionally, OSM has proposed that the Federal VER definition be

amended (see 56 FR 33152, July 18, 1991).

In the November 20, 1986, Federal Register notice which suspended

30 CFR 761.5(a), OSM stated that the suspension of 30 CFR 761.5(a) has

the effect of undoing that provision and leaving in its place the VER

test in use before the suspended language was promulgated (the 1979

test) (51 FR 41954). That 1979 test consists of language approved on

March 13, 1979 (44 FR 15342). A suspension and interpretation of the

1979 test was published in the August 4, 1980, Federal Register (45 FR

51547). This suspension resulted from judicial review of the 1979 test,

wherein the court remanded to the Secretary that portion of the 1979

test which required the property owner to have obtained all permits

necessary to mine (``all permits'' test, 30 CFR 761.5(a)(2)(i)). [In

Re: Permanent Surface Mining Regulation Litigation, No. 79-1144 (D.D.C.

1980)]. Specifically, the court indicated that a good faith attempt to

obtain all permits before the August 3, 1977, cut-off date should

suffice for meeting the ``all permits'' test. In Re: Permanent (I),

Mem. op. at 20. To comply with the court's 1980 opinion, OSM suspended

the definition only insofar as it required that to establish VER, all

permits must have been obtained prior to August 3, 1977. (45 FR 51547,

51548, August 4, 1980)

The November 20, 1986, notice of suspension restated OSM's position

that, pending further rulemaking, OSM would interpret the regulation as

including the court's suggestion that a good faith effort to obtain all

permits would establish VER. Consequently, in Federal program States

and on Indian lands, OSM will make VER determinations on a case-by-case

basis, and will consider property rights in existence on August 3,

1977, the owner of which by that date had made a good faith effort to

obtain all permits, as one class of circumstances which would

invariably entitle the property owner to VER. This is referred to as

the 1980 test. VER would also exist when there are property rights in

existence on August 3, 1977, the owner of which can demonstrate that

the coal is both needed for and immediately adjacent to a mining

operation in existence prior to August 3, 1977 (51 FR 41954, 41955).

Indiana's proposed VER language at subsection 139(a)(1)(A) and

(B)(i) and (ii) is substantively identical to the two classes of VER

contained in the 1979 rule, at former 30 CFR 761.5(a)(1) and (2).

Because these portions of the 1979 rule, including the ``good faith,

all permits'' interpretation of the ``all-permits test'' contained in

former 30 CFR 761.5(a)(2)(i) have been upheld by the court, the

Director is approving the proposed language at subsection 139(a)(1)(A)

and (B)(i) and (ii).

The proposed language at subdivision 139(a)(1)(B)(iii) is

substantively identical to the Federal language at 30 CFR 761.5(d)(1).

The Director notes, however, that the proposed language at subdivision

139(a)(1)(B)(iii) duplicates the intent of the proposed language at

subdivision 139(d). In response to a comment from OSM about this

duplication, Indiana stated the duplicative language at subdivision

139(a)(1)(B)(iii) will be deleted at the next available opportunity.

The Director agrees that, for clarity, the duplicative language should

be removed at Indiana's earliest opportunity. The Director finds that

the proposed language at subdivision 139(A)(1)(B)(iii), while

duplicative, is no less effective than the Federal regulations.

The Director finds the proposed provisions for haulroads at

subdivisions 139(a)(2) (A) and (B) are substantively identical to and

no less effective than the counterpart Federal regulations at 30 CFR

761.5(b) (1) and (2). The proposed provision at subdivision

139(a)(2)(C) does not have a direct Federal counterpart. The Director

finds the Indiana language to be consistent with the Federal provision

at 30 CFR 761.5(d)(1) which provides for VER if, on the date an area

comes under protection pursuant to section 522(e) of SMCRA, a validly

authorized surface coal mining operation exists on that area. The

Director is, therefore, approving the proposed language at subdivision

139(a)(2).

The proposed Indiana language at subdivisions 139(b) and (b)(1) is

similar to the counterpart Federal language at 30 CFR 761.5(e). The

Federal language, however, provides that the interpretation of the

terms of the document relied upon to establish the VER shall be based

on either applicable State statutory or case law concerning

interpretation of documents conveying mineral rights. Also, the Federal

language provides that where no applicable State law exists, the

interpretation of the terms of the document relied upon to establish

VER shall be based upon the usage and custom at the time and place that

it came into existence. The counterpart Indiana language at subdivision

139(b) is silent concerning applicable State statutory law. The

proposed language only provides that if there is no applicable common

law the provisions at subdivisions 139(b) (1) and (2) apply. Therefore,

the Director finds the proposed language at subdivision 139(b) no less

effective than the counterpart Federal regulations at 30 CFR 761.5(e)

except to the extent that the proposed Indiana rule is silent

concerning the applicability of State statutory law. In addition, the

Director is requiring that Indiana further amend 310 IAC 12-0.5-139(b)

to provide that the interpretation of the terms of the document used to

establish a valid existing right shall be based either upon applicable

State statutory or case law concerning interpretation of documents

conveying mineral rights, or where no applicable State statutory or

common law exists, the interpretation is based upon the provisions at

subdivisions 139(b) (1) and (2).

Proposed subdivision 139(b)(2), concerning a required showing by

the applicant that the parties to the document contemplated the right

to conduct the same mining activities for which the applicant claims

VER, has no direct Federal counterpart.

The proposed language, however, is not inconsistent with the

Federal requirements contained in the 1979 VER rule, at former 30 CFR

761.5(c) and is, therefore, approved.

Proposed subsection 139(c) has no direct Federal counterpart. The

Director finds the proposed language to be a valuable clarification of

VER and not inconsistent with SMCRA and the Federal VER regulations. In

addition, the language is substantively identical to the language

contained in the 1979 VER rule at former 30 CFR 761.5(d). Therefore,

proposed subsection 139(c) is approved.

Proposed subsection 139(d) is substantively identical to the

counterpart Federal regulations at 30 CFR 761.5(d)(1) and is,

therefore, approved.

The Director finds the proposed definition of VER, except as

discussed above, to be consistent with an no less effective than the

Federal regulations at 30 CFR 761.5 and the 1980 test (the 1979 VER

rule with the ``good faith, all permits test'' interpretation) as

discussed in the November 20, 1986, Federal Register (51 FR 41954).

C. Revisions to Indiana's Regulations With No Corresponding Federal

Regulations

1. 310 IAC 12-0.5-72 Litter

The term litter is defined to mean the detached recognizable

portions of the plants under evaluation that cover the ground surface.

The Federal regulations use the term litter in definition of ground

cover, but a Federal definition of the term litter is not provided. In

its submittal of this amendment, Indiana stated that its definition of

the term litter is based on the terms litter and ``crop residue found

in the ``Resource Conservation Glossary,'' Third edition, Soil

Conservation Society of America, 1982, page 188, and the needs and

conditions of the Indiana program. The Director finds the proposed

definition to be consistent with and no less effective than the Federal

use of the term litter as it appears in the definition of ``ground

cover'' at 30 CFR 701.5.

2. 310 IAC 12-0.5-111 Shelter Belt

This term is defined to mean an area used for protection from wind

or snow and which is subject to proof-of-productivity standards for

fish and wildlife habitat. In its submittal of this definition, Indiana

stated that its definition of the term shelter belt is modeled after

the definition of the same term as found in the ``Resource Conservation

Glossary,'' Third edition, Soil Conservation Society of America, 1982,

page 145. There is no direct Federal counterpart to this definition.

However, the Federal regulations at 30 CFR 816/817.116(b)(3) use the

term ``shelter belts'' in the regulations for the standards for success

for postmining land use of fish and wildlife habitat. The Director

finds the proposed definition to be consistent with and no less

effective than the Federal use of the term ``shelter belts'' at 30 CFR

816/817.116(b)(3).

3. 310 IAC 12-0.5-116 Soil Productivity

This term is defined to mean the capacity of a soil for producing a

specified plant or sequence of plants under a physically defined set of

management practices. In its submittal of this definition, Indiana

stated that its definition of the term ``soil productivity'' is modeled

after the definition of the same term as found in the ``Resource

Conservation Glossary,'' Third edition, Soil Conservation Society of

America, 1982, page 159. There is no direct Federal counterpart to this

definition. However, the Federal regulations at 30 CFR 823.15 use the

term soil productivity in the regulations on prime farmland

revegetation and restoration. The Director finds the proposed

definition to be consistent with the Federal use of the term ``soil

productivity'' at 30 CFR 823.15.

IV. Summary and Disposition of Comments

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 on the proposed amendments.

Public Comments

The public comment period and opportunity to request a public

hearing was announced in the August 5, 1993, Federal Register (58 FR

41669). The comment period closed on September 7, 1993. No comments

were received during the comment period, and no one requested an

opportunity to testify at the scheduled public hearing so no hearing

was held.

V. Director's Decision

Based on the above findings, and except as noted below, the

Director is approving Indiana's proposed amendment 93-5 as submitted by

Indiana on July 2, 1993. As discussed in Finding B-3, the Director is

approving 310 IAC 12-0.5-139(b) except to the extent that the proposed

language is silent concerning the applicability of State statutory law.

In addition, the Director is requiring that Indiana further amend 310

IAC 12-0.5-139(b) to provide that the interpretation of the terms of

the document used to establish a valid existing right shall be based

either upon applicable State statutory or case law concerning

interpretation of documents conveying mineral rights, or where no

applicable State statutory or common law exists, the interpretation is

based upon the provisions at subdivisions 139(b)(1) and (2).

The Federal regulations at 30 CFR 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 the State

to conform its program with the Federal standards without delay.

Consistency of State and Federal standards is required by SMCRA.

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. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In his

oversight of the Indiana program, the Director will recognize only the

statutes, regulations and other materials approved by him, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Indiana of only such

provisions.

Environmental Protection Agency (EPA) Concurrence

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the Administrator of the Environmental

Protection Agency (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.

VI. Procedural Determinations

Executive Order 12866

This final rule is exempted from review by the Office of Management

and Budget under Executive Order 12866.

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 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 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. Hence, 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: March 9, 1994.

Robert J. Biggi,

Acting Assistant Director, Eastern Support Center.

For the reasons set forth 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. 30 CFR 914.15, is amended by adding a new paragraph (zz) to read

as follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(zz) The following amendment (Program Amendment Number 93-5)

submitted to OSM on July 2, 1993, is approved, except as noted below,

effective June 16, 1994: Definitions to the Indiana program at 310 IAC

12-0.5-6 concerning affected area; 310 IAC 12-0.5-23 concerning coal

mine waste; 310 IAC 12-0.5-53 concerning ground cover; 310 IAC 12-0.5-

55 concerning half-shrub; 310 IAC 12-0.5-64 concerning impounding

structure; 310 IAC 12-0.5-72 concerning litter; 310 IAC 12-0.5-104

concerning reference area; 310 IAC 12-0.5-111 concerning shelter belt;

310 IAC 12-0.5-116 concerning soil productivity; and 310 IAC 12-0.5-139

concerning valid existing rights except to the extent that subdivision

139(b) is silent concerning the applicability of State statutory law.

3. In section 914.16, paragraph (ee) is added to read as follows:

Sec. 914.16 Required program amendments.

* * * * *

(ee) By July 1, 1994, Indiana shall amend 310 IAC 12-05.-139(b) to

provide that the interpretation of the terms of the document used to

establish a valid existing right shall be based either upon applicable

State statutory or case law concerning interpretation of documents

conveying mineral rights, or where no applicable State statutory or

common law exists, the interpretation is based upon the provisions at

subdivisions 139(b) (1) and (2).

[FR Doc. 94-14634 Filed 6-15-94; 8:45 am]

BILLING CODE 4310-05-M