Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-123-FOR; State Amendment No. 95-2]

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).

Indiana proposes to revise revegetation standards for success for

nonprime farmland for surface and underground coal mining and

reclamation operations under Indiana Code (IC) 13-4.1. The amendment is

intended to improve operational efficiency.

EFFECTIVE DATE: September 14, 1995.

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,

Indiana 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 Secretary of the Interior conditionally

approved the Indiana program. Background information on the Indiana

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the July 26,

1982, Federal Register (47 FR 32107). Subsequent actions concerning the

conditions of approval and program amendments can be found at 30 CFR

914.10, 914.15, and 914.16.

II. Submission of the Amendment

By letter dated May 3, 1995 (Administrative Record No. IND-1460),

Indiana submitted a proposed amendment to its program pursuant to

SMCRA. Indiana submitted the proposed amendment at its own initiative.

This amendment revises 310 IAC 12-5-64.1 and 310 IAC 12-5-128.1

pertaining to success standards for revegetation on nonprime farmland

for surface and underground coal mining operations under IC 13-4.1.

OSM announced receipt of the proposed amendment in the May 30,

1995, Federal Register (60 FR 28069), and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on June 29, 1995.

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.

310 IAC 12-5-64.1 (Surface) and 12-5-128.1 (Underground) Revegetation

Standards for Success for Nonprime Farmland

Since the revisions being proposed for surface mining at Sec. 12-5-

64.1(c) are

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identical to those being proposed for underground mining at Sec. 12-5-

128.1(c), they will be combined for ease of discussion. These

subsections provide the standards for success which are to be applied

under the approved postmining land uses.

1. Organizational and Reference Changes. Indiana proposes paragraph

notation changes to reflect the organizational changes made throughout

subsections (c). Additionally, Indiana proposes revisions throughout

subsections (c) to correct the reference to the ``Soil Conservation

Service'' to the ``Natural Resources Conservation Service.''

The Director finds the organizational changes and the correction of

the reference do not render the Indiana regulations at 310 IAC 12-5-

64.1/128.1 less effective than the Federal regulations at 30 CFR 816/

817.116.

2. Subsections (c)(3)(B); Pastureland Production Success Standards.

Subsection (c)(3)(B) concern the production success standards for

revegetated pastureland areas. Indiana is proposing to relocate the

provision in existing subsections (c)(4), which requires that if the

current Natural Resources Conservation Service predicted yield by soil

map units is used to determine production of living plants, then the

standard for success shall be a weighted average of the predicted

yields for each unmined soil type which existed on the permit areas at

the time the permit was issued, to subsections (c)(3)(B).

The Director finds this organizational change does not render the

Indiana regulations less effective than the Federal regulations and is

approving this modification.

3. Subsections (c)(3)(C); Pastureland Production Success Standards

Methodology. Indiana is proposing to delete the existing provision in

subsections (c)(3)(C) for determining production of living plants on

pastureland and is proposing to add the following provision.

(C) A target yield determined by the following formula: Target

Yield = NRCS Target Yield x (CCA/10 Year CA) where: NRCS Target

Yield = the average yield per acre, as predicted by the Natural

Resources Conservation Service, for the crop and the soil map units

being evaluated. The most current yield information at the time of

permit issuance shall be used, and shall be contained in the

appropriate sections of the permit application. CCA = the county

average for the crop for the year being evaluated as reported by the

United States Department of Agriculture crop reporting service, the

Indiana Agricultural Statistics Service. 10 Year CA = the ten (10)

Year Indiana Agricultural Statistics Service county average,

consisting of the year being evaluated and the nine (9) preceding

years.

The Federal regulations at 30 CFR 816/817.116(a)(2) require that

standards for success shall include criteria representative of unmined

lands in the area being reclaimed to evaluate the appropriate

vegetation parameters of ground cover, production, or stocking. As

discussed in the May 29, 1992, Federal Register (57 FR 22655),

Indiana's average county yield data contains data of yields form

previously mined lands. In letters dated February 26, 1992

(Administrative Record No. IND-1036 and IND-1037), OSM asked Indiana to

clarify the use of this data. In letters dated March 20, 1992

(Administrative Record No. IND-1051 and IND-1052), Indiana stated that

the amount of previously mined acreage being farmed is so limited that

the inclusion of these yields essentially has no impact upon the

overall yields calculated for the county average. Indiana also stated

that it used the average county yield data as a weather correction

factor applied to predicted soil mapping unit yields.

In the May 29, 1992, Federal Register (57 FR 22655, finding No.

1.c.), the Director found that the use of the Indiana average county

yield data as the sole standard for determining success of revegetation

would be less effective than the Federal regulations at 30 CFR 816/

817.116.(a)(2). However, the Director found that the use of Indiana's

average county yield data as a correction factor would not be

inconsistent with the Federal regulations.

The currently proposed methodology is an acceptable way to

calculate production standards for non-prime farmland pastureland. This

method adjusts the weighted production standard based on soil type by

using a factor derived by the county average and an average of the

historical county average. The weighted production standard is already

approved in the Indiana program and the adjustment of this standard by

county average data is reasonable. Thus the Director finds that the

proposed method for calculating success standards on nonprime farmland

pasture at 310 IAC 12-5-64.1/128.1(c)(3)(C) is no less effective than

the Federal requirements for success standards at 30 CFR 816/

817.116(a)(2).

4. Subsection (c)(3)(D)/(c)(5)(D); Other Success Standards. Indiana

is proposing to revise the language in the provisions moved from

subsections (c)(3)(C) and (c)(5)(C) to new subsections (c)(3)(D) and

(c)(5)(D), respectively. These provisions allow other success standards

approved by the director of the Indiana Department of Natural Resources

(IDNR) to be used in determining success of production of living plants

on revegetated nonprime farmland pasture land and cropland areas. The

provisions in (c)(3)(C) and (c)(5)(C) were previously approved by OSM

on May 29, 1992 (57 FR 22655). The proposals would change the words

``Other success standards'' to ``Other methods.'' The ``methods''

referred to are methods to determine success standards. Therefore, the

modifications to the relocated provisions at (c)(3)(D) and (c)(5)(D)

are not substantial changes from what was previously approved at

(c)(3)(C) and (c)(5)(C).

The Federal regulations at 30 CFR 816/817.116(a)(1) require that

standards for success and statistically valid sampling techniques for

measuring success shall be selected by the regulatory authority and

included in an approved regulatory program. In letters dated March 20,

1992 (Administrative Record Nos. IND-1051 and IND-1052), Indiana stated

that the IDNR will request approval by OSM for other standards prior to

their use in the Indiana program if they vary significantly from the

approved standards.

Based on the above discussion, the Director is approving the

provisions at 310 IAC 12-5-64.1/128.1(c)(3)(D) and 12-5-64.1/

128.1(c)(5)(D).

5. Redesignations. Existing subsections (c)(5) are redesignated

subsections (c)(4) without any changes to the provisions. These

subsections concern stocking levels and success standards for

vegetation on areas to be developed as shelter belts or for fish and

wildlife habitat, recreation or forestry land use.

Existing subsections (c)(6) are redesignated subsections (c)(5)

with changes. The changes to redesignated (c)(5) are discussed in

finding No. 4 and finding No. 6. These subsections concern the success

standards for production on revegetated cropland areas.

Existing subsections (c)(7) are redesignated subsections (c)(6).

Indiana is proposing to relocate the provision in existing subsections

(c)(7), which requires that if the current Natural Resources

Conservation Service predicted yield by soil map units is used to

determine production of living plants then the standard for success

shall be a weighted average of the predicted yields for each unmined

soil type which existed on the permit areas at the time the permit was

issued, to redesignated subsections (c)(5)(B). Indiana is also

proposing to redesignate from existing subsections (c)(7) to

[[Page 47694]]

subsections (c)(5)(E) the provision which requires that once the method

for establishing the standards has been selected, it may not be

modified without the approval of the director of IDNR.

Existing subsections (c)(8) are redesignated subsections (c)(7)

without change. These subsections concern revegetation success where

barren areas exist within an area under evaluation.

The Director finds the proposed redesignations do not render the

Indiana regulations less effective than the Federal regulations.

6. Subsections (c)(5); Cropland Production Success Standards

Methodology. Indiana is proposing to delete the provision in existing

subsections (c)(6)(C) for determining production of living plants on

cropland and is proposing to add the following provision to

redesignated subsections (c)(5)(C).

(C) A target yield determined by the following formula: Target

Yield = CCA x (NRCSP/NRCSC) where: CCA = the county average for

the crop for the year being evaluated as reported by the United

States Department of Agriculture crop reporting service, the Indiana

Agricultural Statistics Service. NRCSP = the weighted average of the

current Natural Resources Conservation Service predicted yield for

each croppable, unmined soil which existed on the permit at the time

the permit was issued. NRCSC = the weighted average of the current

Natural Resources Conservation Service predicted yield for each

croppable, unmined soil which is shown to exist in the county on the

most current county soil survey. A croppable soil is any soil which

the Natural Resources Conservation Service has defined as being in

capability class I, II, III, or IV.

The Federal regulations at 30 CFR 816/817.116(a)(2) require that

standards for success shall include criteria representative of unmined

lands in the area being reclaimed to evaluate the appropriate

vegetation parameters of ground cover, production, or stocking. The

above discussion in finding No. 3, pertaining to Indiana's average

county yield data containing data of yields from previously mined lands

is also relevant to this proposed revision. As discussed in finding No.

3, the Director had previously found that the use of Indiana's average

county yield data as a correction factor was not inconsistent with the

Federal regulations.

Indiana's currently proposed methodology would modify the county

average by a factor that uses the NRCS predicted standard for permitted

unmined soils and a NRCS predicted standard that excludes mined land.

Therefore, the Director is approving the provisions proposed at 310 IAC

12-5-64.1/128.1(c)(5)(C).

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 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Indiana program. No comments

were received from these agencies.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed 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. On June 15, 1995 (Administrative Record

No. IND-1489), EPA responded that it concurred on the proposed

amendment without comment.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP. No comments were received.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Indiana on May 3, 1995.

The Director approves, as discussed in: finding No. 3, the

provisions at 310 IAC 12-5-64.1/128.1(c)(3)(C), concerning a

methodology for determining the success of production of living plants

on nonprime pasture land areas; finding No. 4, the provisions at 310

IAC 12-5-64.1/128.1(c)(3)(D) and 12-5-64.1/128.1(c)(5)(D), concerning

the director of IDNR's approval of other success standards to be used

in determining success of production of living plants on revegetated

nonprime farmland pasture land and cropland areas; finding No. 6, 310

IAC 12-5-64.1/128.1(c)(5)(C), concerning a methodology for determining

the success of production of living plants on nonprime cropland areas.

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. The Federal regulations at 30 CFR 732.17(g) prohibit any

unilateral changes to approved State programs. In the oversight of the

Indiana program, the Director will recognize only the statutes,

regulations and other materials approved by OSM, 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

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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

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 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 corresponding Federal regulations.

List of Subjects in 30 CFR Part 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 7, 1995.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating 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. Section 914.15 is amended by adding paragraph (kkk) to read as

follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(kkk) The following rules, as submitted to OSM on May 3, 1995, are

approved effective September 14, 1995:

310 IAC 12-5-64.1(c) and 310 IAC 12-5-128.1(c) concerning standards

for success for nonprime farmland for surface and underground coal

mining reclamation operations.

[FR Doc. 95-22866 Filed 9-13-95; 8:45 am]

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