Indiana Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

Indiana Abandoned Mine Land Reclamation Plan

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 Abandoned

Mine Land Reclamation (AMLR) Plan (hereinafter referred to as the

``Indiana plan'') under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). The amendment is intended to revise the Indiana plan

to allow the State to assume responsibility for administering an

emergency response reclamation program in Indiana on behalf of OSM.

EFFECTIVE DATE: October 26, 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 Plan

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Indiana Plan

On July 29, 1982, the Secretary of the Interior conditionally

approved the Indiana plan. Background information on the Indiana plan,

including the Secretary's findings, the disposition of comments, and

the approval of the Indiana plan can be found in the July 26, 1982,

Federal Register (47 FR 32110). Subsequent actions concerning the

conditions of approval and amendments to the plan can be found at 30

CFR 914.20 and 914.25.

II. Submission of the Proposed Amendment

Section 410 of SMCRA authorizes the Secretary to use funds under

the AMLR program to abate or control emergency situations in which

adverse effects of past coal mining pose an immediate danger to the

public health, safety, or general welfare. On September 29, 1982 (47 FR

42729), OSM invited States to amend their AMLR Plans for the purpose of

undertaking emergency reclamation programs on behalf of OSM. States

would have to demonstrate that they have the statutory authority to

undertake emergencies, the technical capability to design and supervise

the emergency work, and the administrative mechanisms to quickly

respond to emergencies either directly or through contractors.

Under the provisions of 30 CFR 884.15, any State may submit

proposed amendments to its approved AMLR Plan. If the proposed

amendments change the scope or major policies followed by the State in

the conduct of its AMLR program, the Director must follow the

procedures set out in 30 CFR 884.14 in reviewing and approving or

disapproving the proposed amendments.

The proposed assumption of the AMLR emergency program on behalf of

OSM is a major addition to the Indiana AMLR plan. Therefore, to asume

the emergency program, Indiana must revise the Indiana Plan to include

conducting the AML emergency program.

By letter received November 17, 1992 (Administrative Record No.

IND-1171), the Indiana Department of Natural Resources (IDNR), Division

of Reclamation, submitted a proposed Program Amendment to the Indiana

Program. The amendment describes the specific procedures which Indiana

will follow to investigate, reclaim and document emergency reclamation

activities in the State. The amendment also describes the realty and

environmental compliance activities that will support this function of

the State's AMLR program.

OSM published an announcement of proposed rulemaking on the Indiana

amendment and requested public comment on January 14, 1993 (58 FR

4374). The public comment period closed on February 16, 1993.

On March 26, 1993 (58 FR 16379), OSM published a correction of the

address of the Indiana Department of Natural Resources (IDNR) which was

printed in the January 14, 1993, proposed rule document.

On October 29, 1993 (Administrative Record Number IND-1303), OSM

received from Indiana a revised version of the Indiana plan amendment.

The proposed revisions were intended to address OSM's comments on the

original amendment. OSM published an announcement of the proposed

revisions to the initial submittal of the Indiana plan amendment and

reopened the public comment period on December 6, 1993 (58 FR 64212).

The public comment period closed on December 20, 1993.

By letter dated June 27, 1994 (Administrative Record Number IND-

1381) Indiana submitted a second revised version of the Indiana plan

amendment. The proposed revision contains two changes which are

intended to address OSM's comments on the October 29, 1993 revised

version of the Indiana plan amendment.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 884.14 and 884.15, are the Director's findings concerning the

proposed amendment.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revise cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

The following information is contained in Indiana's formal

submission to OSM pursuant to the guidelines published in the Federal

Register, 47 FR 42729 (September 29, 1982), as to its authority and

procedures for implementing an emergency response reclamation program

based on the provisions in Section 410 of the Surface Mining Control

and Reclamation Act of 1977, Pub. L. 95-87 (SMCRA).

1. The agency designated by the Governor as authorized to receive

grants and administer an emergency program.

2. A legal opinion from the chief legal officer that the designated

agency has the authority under State law to conduct the emergency

program in accordance with the requirements of Section 410 of Title IV

of the Act.

3. A description of the policies and procedures to be followed by

the designated agency in conducting the reclamation program including:

a. The purpose of the emergency response reclamation activities

to be undertaken by the Indiana Department of Natural Resources,

Division of Reclamation is to enter upon any land where an emergency

exists and on any other land to have access to the land where the

emergency exists and restore, reclaim, abate, control or prevent the

adverse effect of coal mining practices and to do all things

necessary or expedient to protect the public health, safety, or

general welfare. For the purposes of this plan amendment emergency

is defined as a sudden danger or impairment that presents a high

probability of substantial physical harm to the health, safety, or

general welfare of people before the danger can be abated under

normal program operation procedures.

b. The Indiana Department of Natural Resources will assume

authority for all emergency projects within Indiana and will

coordinate work with the Federal Office of Surface Mining

Reclamation and Enforcement (OSM). Coordination with other state or

local agencies will be on a project specific basis. The Department

of Administration will be a key component in the procurement of

goods and services for emergency work. Assistance is also available

from the Indiana Department of Transportation and the Indiana State

Emergency Management Agency.

All investigations and eligibility findings required by Title IV

of SMCRA will be conducted by the Division of Reclamation. This

information on emergency investigations will be provided to OSM.

Once OSM makes a finding of fact that an emergency situation exists,

the state will undertake the specific construction efforts approved

by OSM to abate the declared emergency situation.

c. Land acquisition for emergency projects will follow the

guidelines as stated in Indiana's approved State Plan. The state

will acquire lands in emergency situations where no other practical

means are available to abate an immediate threat to the health,

safety or general welfare of its citizens. Policies, procedures and

authority to acquire lands is clearly detailed in the approved State

Plan in the sections entitled Land Acquisition, Management and

Disposal. Indiana does not consider land acquisition to be a

preferred step in reclamation projects and will therefore proceed

with this option only under unique circumstances.

d. The policies and procedures for emergency reclamation on

private and public lands will be the same as for other AML

reclamation activities and detailed in the approved State Plan at

884.13(c)(5) and (6).

e. The Indiana Department of Natural Resources may enter on any

land where an emergency exists or on adjacent lands for access, in

order to protect the public health, safety or general welfare from

adverse effects of coal mining. It is the policy of the State of

Indiana to respect the rights of private ownership, and the state

will make all reasonable efforts to obtain a written consent from

the owner of record in advance of emergency reclamation. The consent

for right of entry shall be in the form of a signed agreement with

the land owner or the authorized agent.

f. The Indiana Department of Natural Resources will publish a

legal notice in a general circulation newspaper within each county

potentially affected by this emergency program assumption. These

legal notices will provide for a thirty-day comment period and will

include the possibility of conducting public meetings in order to

resolve any issues of general concern. Each notice will include a

statement of availability of this emergency reclamation amendment

package. All comments received on this amendment will be

incorporated by reference to this document and made available to any

interested parties.

4. A description of the administrative and managerial structure to

be used in conducting the emergency reclamation program including:

a. The organizational and management structure to be utilized by

the Division of Reclamation for the emergency program will be the

same as established for the other Title IV AML program operations

and is contained within the approved State Plan. Key positions in

the emergency program operations and their responsibilities are

detailed below.

Inventory Specialist--responsible for initial investigation of

all potential emergency situations. Compiles all pertinent

information at each site to allow for consistent evaluation of the

degree of seriousness and level of response necessary. Conducts

initial coordination with other Division of Reclamation employees as

well as other organizations and/or individuals necessary to insure

proper response, protection and control.

Assistant Director for Restoration Program--makes final

determination for the State on the status of each potential

emergency. Will act as primary contact point for the Division of

Reclamation in relations with the Department of Administration and

the Federal Office of Surface Mining.

Project Manager Supervisor--responsible for insuring that all

emergency abatement contract work is performed by the contractor in

accord with the agreed terms and conditions of the contract. Will

conduct pre-bid meetings with potential contractors if time permits.

Emergency Program Coordinator--The Division of Reclamation

intends to fill this position with a registered professional

engineer who will be capable of coordinating all emergency program

activities as well as providing expert testimony for those program

situations that become subject to litigation. This position will

insure that all requirements of the emergency program are executed

consistently and in accord with all declared policies, plans and

procedures. Additional responsibilities of this position may

include, but will not be limited to: coordination with the

Department of Insurance and the insurance industry on all matters

related to the subsidence insurance program, design engineer for

emergency reclamation, contract and bid officer for securing

emergency reclamation, and field inspector for approval of

reclamation work.

b. The Division of Reclamation does anticipate the need for

additional staff in order to conduct the emergency reclamation

program. The State also reserves the right to add staff in the

future if through practical experience it becomes apparent that need

exists.

Technical skills currently available at the Division of

Reclamation that will be available and utilized in the emergency

reclamation program include: field investigation staff, realty

professionals, subsidence and structural engineers, hydrologists,

soils professionals, construction inspectors, and geologists. Any

and all staff of the Division of Reclamation will be used as needed.

c.i. Administrative procedures for investigating and reporting

emergency complaints will include on-site visitation by a qualified

staff member to make findings of fact and to document through a

written report and photograph the current status of the complaint. A

complaint information gathering guide will aid in complaint

investigation. Emergency response will entail having a qualified

staff member on-site as soon as is practicable. Urgency of the

response time will be determined by the initial description of the

complaint received.

c.ii. As soon as is practical, eligibility information will be

obtained and reported for each potential emergency. This information

will include written determination of: (1) whether the site was

mined for coal; (2) the dates, types, and operations of any and all

mines at the site, and (3) the existence of any continuing

reclamation responsibility at the site. This information will be

provided to the appropriate legal staff in order to allow them to

make an eligibility determination for emergency reclamation. It is

desirable but not necessary to have all required legal documents

completed prior to initiating emergency reclamation activities.

c.iii. All rights of entry and necessary appraisals will be

executed according to the procedures outlined above and as described

in the approved State Plan. It is desirable but not necessary to

have all required realty documents completed prior to initiating

emergency reclamation activities.

c.iv. Administrative procedures for project supervision will be

the responsibility of the assigned project manager and will fit

within the approved administrative structure of the Division of

Reclamation as outlined in the approved State Plan.

c.v. Final project inspection and preparation and submission of

final project reports will be conducted in conjunction with the OSM

Indianapolis field office. The assigned project manager and the

pertinent grants staff of the division of Reclamation will be

responsible for the preparation of all technical, programmatic and

financial reports and documents. Approval by administrative staff of

the Division of Reclamation of all reports to OSM will be required.

d. The purchasing and procurement systems to be used by the

Department of Natural Resources, Division of Reclamation under the

emergency reclamation program will be those currently used for

securing goods and services under other aspects of the AML program,

with the following special conditions:

1. Emergency reclamation will have priority over all other

requests originating within the Division of Reclamation.

2. Purchase orders for emergency work will be ``hand carried''

through the administrative system to allow approval within the

shortest time frame possible.

3. A list of potential contractors and/or suppliers will be

maintained for ready reference quick contact by the Restoration

Section. This list will be updated as necessary to include all

capable potential contractors.

4. In most cases, work will be allowed to proceed on the basis

of verbal approval and a commitment for written follow-up.

5. The Division of Reclamation has developed, and is using, an

emergency reclamation contracting system that expedites the securing

of abatement work.

e. The accounting system to be used by the Division of

Reclamation for the emergency program projects will be the same as

currently utilized for all other AML reclamation projects. Emergency

program accounting will be on a project basis. All emergency project

obligations, payments and drawdowns will be tracked individually and

separately and will be done in accord with Federal requirements.

f. The Division of Reclamation has expertise in the disciplines

necessary to implement the emergency program. Staff engineers have a

great deal of experience in reclamation designs for all types of

problems anticipated to be encountered in the emergency program.

These may include, but are not limited to: filling and/or sealing

mine openings or subsidence, monitoring, grouting under or

stabilizing ground affected by area subsidence or slides, refuse

fires, roadway failures, and flooding due to clogged streams. The

Emergency Program Coordinator will specialize in correction of

emergency events and will be the lead staff person with support from

the expertise of other Division of Reclamation specialists.

Technical consultation will be available to staff from OSM, U.S.

Bureau of Mines, consultants, and the Indiana Division of

Engineering among others.

Technical capability to supervise emergency work is the same as

the Division of Reclamation's project managers currently use to

perform on-site supervision and inspection of other AML projects.

Procedures for field supervision will evolve as Indiana's experience

in emergency reclamation grows. However, the existing field

operations manual provides an excellent starting point of all

emergency reclamation supervision.

5. A general description, derived from available data, of emergency

reclamation activities to be conducted, including known or suspected

geographical areas within the State, including:

a. The OSM has been conducting emergency reclamation for almost

twelve years in the State of Indiana. There have been approximately

190 emergency investigations, with 85 declared or given emergency

status. The majority of all emergency projects have been related to

subsidence (71), while shaft openings (9), slides (4), and refuse

fires (1) account for the balance of declared emergencies. The

distribution by county of both emergency projects and investigations

has been documented.

b. Emergencies related to subsidence have been primarily the

result of small pit type subsidence. This subsidence is customarily

associated with shallow underground mining. The potential for future

emergency reclamation due to subsidence is very large and widespread

in the Indiana coal fields.

6. Narrative description which supports the State's position that

the procedures, personnel and other proposed aspects of its program

give evidence of its abilities to promptly and effectively mitigate the

full range of anticipated emergency conditions:

The objectives of the Indiana abandoned mine land program are to

fulfill the general reclamation objectives set out in Section 403 of

P.L. 95-87. The highest priorities of the program are the protection of

public health, safety and general welfare from dangers resulting from

the adverse effects of past coal mining. The emergency response program

described in this document provides an additional means whereby the

State of Indiana will be able to protect its citizens from these

adverse effects consistent with the intent of Section 410 of P.L. 95-

87. Indiana has the procedures, personnel, and administrative functions

within the Department of Natural Resources to capably and effectively

manage the emergency program as described in the previous sections, and

is willing and able to work with OSM to insure its success.

An additional objective of the State of Indiana in assuming the

administration of the emergency program from OSM is to provide

continued protection to the citizens of this state. The State of

Indiana must secure cooperation from OSM in providing prompt emergency

declaration as well as complete and adequate grant funding to carry out

the work.

In accordance with section 405 of SMCRA, OSM finds that Indiana

submitted an amendment to its AMLR plan, subsequently revised and

clarified, and it has been determined, pursuant to 30 CFR 884.15, that:

1. The State provided adequate notice and opportunity for public

comment in the development of the amendment and the record does not

reflect major unresolved controversies.

2. Views of other Federal agencies having an interest in the plan

have been solicited and considered.

3. The State has the legal authority, policies and administrative

structure necessary to implement the amendment.

4. The proposed plan amendment meets all requirements of the OSM

AMLR program provisions.

5. The State has an approved Surface Mining Regulatory Program.

6. The amendment is in compliance with all applicable State and

Federal laws and regulations.

The Director finds therefore, that the proposed Indiana plan

amendment allowing the State to assume responsibility for an emergency

response reclamation program on behalf of OSM is no less stringent than

SMCRA and no less effective than the Federal regulations and can be

approved.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No public comments were

received, and because no one requested an opportunity to speak at a

public hearing, no hearing was held.

Federal Agency Comments

Pursuant to 30 CFR 884.14(a)(2) and 884.15(a), the Director

solicited comments on the proposed amendment from various other Federal

agencies with an actual or potential interest in the Indiana plan.

In response to the original submittal (November 17, 1992), the U.S.

Department of Agriculture (USDA), Forest Service responded and stated

that it had no comments.

In response to the December 6, 1993, reopening of the public

comment period, the USDA, Soil Conservation Service (SCS) responded and

stated that they did not see where the proposed language would impact

the Rural Abandoned Mine Program administered by the SCS. The U.S.

Bureau of Mines responded and stated that it has no comment.

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-1303). EPA

did not respond to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

AMLR plan amendment as submitted by Indiana on November 17, 1992, and

revised on October 29, 1993, and on June 27, 1994.

The Federal regulations at 30 CFR 914.25, codifying decisions

concerning the Indiana plan, are being amended to implement this

decision. This final rule is being made effective October 26, 1994.

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 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 and Tribal abandoned

mine land reclamation plans and revisions thereof since each such plan

is drafted and adopted by a specific State or Tribe, not by OSM.

Decisions on proposed State and Tribal abandoned mine land reclamation

plans and revisions thereof submitted by a State or Tribe are based on

a determination of whether the submittal meets the requirements of

Title IV of SMCRA (30 U.S.C. 1231-1243) and the Federal regulations at

30 CFR Parts 884 and 888.

National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed State and Tribal abandoned mine land

reclamation plans and revisions thereof are categorically excluded from

compliance with the National Environmental Policy Act (42 U.S.C. 4332)

by the Manual of the Department of the Interior [516 DM 6, appendix 8,

paragraph 8.4B(29)].

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 submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented. In making the

determination as to whether this rule would have a significant economic

impact, the Department relied upon the data and assumptions in the

analyses for the corresponding Federal regulations.

List of Subjects in 30 CFR Part 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 19, 1994.

Ed Kay,

Deputy Director.

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 Section 914.25, paragraph (c) is added to read as follows:

Sec. 914.25 Amendments to approved Indiana abandoned mine land

reclamation plan.

* * * * *

(c) The Indiana plan amendment allowing the State to assume

responsibility for an emergency response reclamation program on behalf

of OSM, as submitted on November 17, 1992, and revised on October 29,

1993, and June 27, 1994, is approved effective October 26, 1994.

[FR Doc. 94-26464 Filed 10-25-94; 8:45 am]

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