Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[IN-116-FOR; Amendment 94-3]

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, with an exception, 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 program amendment consists of revisions to

Indiana's Surface Coal Mining and Reclamation Rules concerning

performance standards for restoring soil productivity for surface coal

mining and reclamation operations under IC 13-4.1. The amendment is

intended to revise the Indiana program to be consistent with SMCRA and

the corresponding Federal regulations.

EFFECTIVE DATE: December 13, 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 January 4, 1993 (Administrative Record Number IND-

1193), Indiana submitted a proposed amendment (#93-1) intended to

address the required program amendments concerning revegetation at 30

CFR 914.16 (i), (j), (k), (l), and (m). See 57 FR 41869 (September 14,

1992), and 57 FR 22653 (May 29, 1992) for background on these required

amendments. The amendments submitted on January 4, 1993, were reviewed

and approved by the Director on August 2, 1993 (58 FR 41039).

By letter dated August 11, 1994 (Administrative Record Number IND-

1392), Indiana submitted formal program amendment #94-3. The proposed

program amendment concerns the performance standards for restoring soil

productivity for surface coal mining and reclamation operations under

IC 13-4.1. In its submittal of this amendment, Indiana stated that all

of the rules, except 310 IAC 12-4-16, were submitted in a previous

package (amendment #93-1) and approved by OSM August 2, 1993. In

addition, 310 IAC 12-5-145(c), which was approved as part of amendment

#93-1 has been deleted and does not appear in this submittal. Indiana

stated that as a result of ongoing Federal litigation over the language

of the previously-submitted subsection (c) of 310 IAC 12-5-145, IAC 12-

5-145(c) will not be resubmitted.

With amendment #94-3, only those provisions which differ from the

amendments approved by OSM in the August 2, 1993, Federal Register

notice were considered by OSM to be amendments subject to public review

and comment in the current rulemaking process.

OSM announced receipt of the proposed amendment in the September

16, 1994, Federal Register (59 FR 47574), 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 October 17, 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.

1. 310 IAC 12-4-16 Performance Bond Release; Requirements

Subsection 16(c)(3)(A) is amended by deleting the word ``or'' and

replacing that word with ``and.'' As amended, subsection 16(c)(3)(A)

provides that Phase III bond may be released only after: (A) the

operator has successfully completed all surface coal mining and

reclamation activities required in IC 13-4.1, 310 IAC 12, ``and'' the

permit. The Director finds this change to be no less stringent than

SMCRA at sections 509(a) and 519(c)(3), and no less effective than the

Federal regulations at 30 CFR 800.40(c)(3).

2. 310 IAC 12-5-145 Prime Farmland; Special Performance Standards

Indiana has deleted subsection 145(c) which was approved by OSM on

August 2, 1993 (58 FR 41039). Deleted subsection 145(c) contained the

following language: ``Soil reconstruction shall be carried out in

accordance with the specifications of the Soil Conservation Service

(SCS) of the United States Department of Agriculture establishing prime

farmland soil reconstruction specifications for Indiana.'' In its

submittal of this amendment Indiana tated that the language quoted

above was omitted because of ongoing litigation concerning the language

of subsection 145(c). The litigation which Indiana referred to above is

Indiana Coal Council, Inc. vs. Babbitt, No. IP93-1328-C (S.D. Ind.

filed October 1, 1993).

The Federal regulations at 30 CFR 823.4(b) provide that the

regulatory authority within each State shall use the soil-

reconstruction specifications established by the SCS to carry out the

State's responsibilities concerning prime farmland. Prior to the #93-1

program amendment Indiana had no counterpart to the Federal regulations

at 30 CFR 823.4(b). Indiana added a counterpart to 30 CFR 823.4(b) at

310 IAC 12-5-145(c) in amendment #93-1, and OSM approved the addition.

In the #94-3 amendment, Indiana has removed the counterpart to 30 CFR

823.4(b), due to the lawsuit cited above.

The lawsuit cited above involves the following. The U.S. District

Court for the District of Columbia has held that the SCS's

specifications for prime farmland soil reconstruction must be

promulgated as ``rules'' under the Federal Administrative Procedures

Act, 5 U.S.C. 551 et seq., and must be subject to public comment prior

to becoming effective. In re: Permanent Surface Mining Regulation

Litigation II, No. 79-1144 (D.D.C. October 1, 1984), slip. Op. pp. 23-

24. The Indiana Coal Council, Inc. (ICC) contends that an Indiana

counterpart to 30 CFR 823.4(b) should not be approved by OSM until

after the SCS has complied with the requirement to subject its

``specifications'' to public comment.

OSM had required that Indiana promulgate a regulation addressing

the requirements of 30 CFR 823.4(b). (57 FR 41873, September 14, 1992).

When Indiana proposed 310 IAC 12-5-145(c) as the counterpart to 30 CFR

823.4(b), OSM removed the required amendment at 30 CFR 914.16(l). (58

FR 41042, August 2, 1993.) Since Indiana has now deleted 310 IAC 12-5-

145(c), the State's program again lacks a counterpart to 30 CFR

823.4(b). Therefore, the Director finds that the deletion of 310 IAC

12-5-145(c) renders the Indiana program less effective than the Federal

regulations. Consequently, the Director is requiring that Indiana amend

its program to include a counterpart to 30 CFR 823.4(b) or to otherwise

require that any prime farmland soil reconstruction specifications

promulgated as rules for the State of Indiana by the SCS be

incorporated by reference into the Indiana program.

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

comments were received.

Public Comments

The public comment period and opportunity to request a public

hearing was announced in the September 16, 1994, Federal Register (59

FR 47574). The comment period closed on October 17, 1994. No one

commented and no one requested an opportunity to testify at the

scheduled public hearing so no hearing was held.

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. EPA responded by letter dated September

27, 1994 (Administrative Record Number IND-1402). In that letter, the

EPA stated that it had no comments on the proposed amendment.

V. Director's Decision

Based on the findings above, the Director is approving, except as

noted herein, Indiana's program amendment concerning performance

standards for restoring soil productivity submitted by Indiana on

August 11, 1994. As discussed in Finding 2, the Director has determined

that the deletion of 310 IAC 12-5-145(c) renders the Indiana program

less effective than the Federal regulations. The Director is requiring

that Indiana amend its program to include a counterpart to 30 CFR

823.4(b) or to otherwise require that any prime farmland soil

reconstruction specifications promulgated as rules for the State of

Indiana by the SCS be incorporated by reference into the Indiana

program.

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.

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.

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: December 6, 1994.

Tim L. Dieringer,

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 (ddd) is added to read as follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(ddd) The following amendment to the Indiana program as submitted

to OSM on August 11, 1994, under program amendment #94-3, is approved

effective December 13, 1994: 310 IAC 12-4-16(c)(3) concerning

performance bond release.

3. In Sec. 914.16, paragraph (gg) is added to read as follows:

Sec. 914.16 Required program amendments.

* * * * *

(gg) By May 31, 1995, Indiana shall amend the Indiana program by

adding a counterpart to 30 CFR 823.4(b), or by otherwise requiring that

any prime farmland soil reconstruction specifications promulgated as

rules by the United States Soil Conservation Service for the State of

Indiana be incorporated by reference into the Indiana program.

[FR Doc. 94-30506 Filed 12-12-94; 8:45 am]

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