Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-126-FOR; State Program Amendment No. 95-9]

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

regulatory program (hereinafter referred to as the ``Indiana program'')

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

Indiana proposed additions to the Indiana Administrative Code [IAC]

rules at 310 IAC 12 pertaining to definition of terms used in the

Indiana Program. The amendment is intended to revise the Indiana

program to be consistent with the corresponding Federal regulations and

to provide additional safeguards.

EFFECTIVE DATE: October 16, 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) 226-6700.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program

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 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 Proposed Amendment

By letter dated May 11, 1995 (Administrative Record No. IND-1469),

Indiana submitted a proposed amendment to its program pursuant to

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

Indiana proposed to add definitions at 310 IAC 12-0.5-2, 12-0.5-14, 12-

0.5-57, 12-0.5-95, 12-0.5-99, and 12-0.5-123. These definitions pertain

to acid drainage; augmented seeding, fertilization, or irrigation; high

level management; public building; randomly located; and support

facility, respectively.

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

1995, Federal Register (59 FR 28073), 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.

A. Revisions to Indiana Regulations That Are Substantively Identical to

the Corresponding Provisions of the Federal Regulations

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Federal

State regulation Subject counterpart

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310 IAC 12-0.5-2............. Definition of Acid 30 CFR 701.5

Drainage.

310 IAC 12-0.5-95............ Definition of Public 30 CFR 761.5

Building.

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[[Page 53512]]

Because the above proposed definitions are identical in meaning to

the corresponding Federal definitions, the Director finds that

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

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

Regulations

1. 310 IAC 12-0.5-14 Augmented Seeding, Fertilization, or

Irrigation. Indiana proposed to define ``augmented seeding,

fertilization, or irrigation'' as seeding, fertilizing, or irrigating

in excess of normal agronomic practices within the region.

OSM amended the Federal regulations at 30 CFR 816.116(c) and

817.116(c) on September 7, 1988 (53 FR 34636). These regulations

provide for regulatory authority approval of ``selective husbandry

practices.'' OSM, in discussing the approval of selective husbandry

practices, stated ``these approved practices were allowed to occur

during the liability period without restarting the five- or ten-year

period responsibility for successful revegetation provided the practice

was a `normal conservation practice' and was not augmented seeding,

fertilizing, irrigation, or other work.'' (Emphasis added.)

OSM uses the above emphasized language in its regulations at 30 CFR

816.116(c) and 817.116(c) to make a distinction between normal and

augmented husbandry practices. Indiana's proposed definition makes a

similar distinction. Therefore, the Director finds the proposed

definition at 310 IAC 12-0.5-14 is no less effective than the Federal

regulation provisions pertaining to normal husbandry practices.

2. 310 IAC 12-0.5-57 High Level Management. Indiana proposed a

definition for ``high level management'' as it relates to agronomic

practices. The definition includes use of cropping systems that help

maintain the land; the control of erosion through conservation and

water management practices; use of soil tests for determining proper

lime and fertilizer application; use of crop residue for protection of

soil; use of conservation tillage practices where needed; use of crop

varieties that are adapted to the climate and the soil of the region;

use of currently accepted management techniques for controlling weeds,

plant diseases, and harmful insects for the region; and use of surface

or subsurface drainage systems for wet areas.

The term ``high level management'' is used in both the Indiana

regulations and the Federal regulations in the permit application

content requirements for information pertaining to the productivity of

prime farmlands prior to mining. The term, as used, does not alter the

reclamation or productivity requirements for lands to be mined.

Although OSM chose not to include a definition of high level management

in its regulations, the Indiana definition includes all of the general

requirements published by the U.S. Natural Resources Conservation

Service in its National Soils Handbook and additional management

practices to aid permit evaluators in reviewing the information

submitted with a mining permit. Therefore, the Director finds the

proposed definition at 310 IAC 12-0.5-57 is not inconsistent with the

requirements of the Federal regulations at 30 CFR 785.17(c).

3. 310 IAC 12-0.5-99 Randomly Located. Indiana proposed to define

``randomly located'' as the selection of a location that is

statistically independent of all previous and future location

selections.

The term ``randomly located'' is used by Indiana in its

revegetation standard regulations to denote the selection of sampling

locations. OSM's regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1)

allow each State to establish its own testing procedures within certain

general guidelines. At a minimum, OSM would require that any testing

procedure selected by the State be based on valid statistical methods.

The proposed definition requires that all locations selected must be

statistically independent of all others. Any method used to actually

locate positions in the field would have to meet the definition.

Therefore, the Director finds the definition is consistent with and no

less effective than 30 CFR 816.116(a)(1) and 817.116(a)(1).

4. 310 IAC 12-0.5-123 Support Facility. Indiana proposed a

definition of ``support facility'' that contains the following

provisions. Subsection (a) relates a support facility to the activities

identified in 310 IAC 12-0.5-125(1), which defines surface coal mining

operations, and the area upon which the facility is located. Subsection

(b) specifies that ``resulting from or incidental to'' connotes an

element of proximity to the activity. Subsection (c) provides a list of

support facilities which includes mine buildings, bath houses, coal

loading and storage facilities, coal crushing and sizing facilities,

equipment and storage facilities, fan buildings, hoist buildings,

sheds, shops, and other buildings, facilities used to treat and store

water for mine consumption, and specific transportation facilities.

On November 22, 1988, OSM removed its definition of ``support

facilities'' from 30 CFR 701.5 (53 FR 47378). Indiana has chosen to

provide additional clarification and guidance to its mine operators by

adding one to its program. The Director acknowledges that the proposed

definition will supplement Indiana's regulations at 310 IAC 12-5-71

pertaining to support facilities and utility installations. OSM noted

in the November 22, 1988, Federal Register that some State programs

contain a definition of support facilities, and the Director did not

require these States to remove them.

While only two approved State programs contain a definition of

support facilities, rarely have objections been raised to OSMRE

concerning the administration of State programs on this issue.

Based on the above discussion, the Director finds the proposed

definition at 310 IAC 12-0.5-123 is not inconsistent with the

requirements of SMCRA and the Federal regulations.

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. In a letter

dated June 19, 1995 (Administrative Record No. IND-1490), the U.S.

Bureau of Mines commented that the definition of acid drainage may not

include that drainage that would emanate from the surface effects of

underground mines, either active or abandoned, or from coal processing

or loading facilities. The definition as proposed is the same as the

Federal definition in 30 CFR 701.5. Both the Federal and Indiana

definitions utilize the term ``surface coal mining and reclamation

operation'' which under both programs include surface mines and

facilities and the surface effects of underground mines. Therefore the

concerns raised by the U.S. Bureau of Mines are adequately addressed by

the Indiana program. The proposed Indiana definition of acid drainage

will not exempt drainage from any facility or operation regulated under

SMCRA.

[[Page 53513]]

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.).

On May 18, 1995, OSM solicited EPA's concurrence with the proposed

amendment (Administrative Record No. IND-1482). On June 15, 1995, EPA

gave its written concurrence, without comment on all of the definitions

except high level management (Administrative Record No. IND-1489). EPA

expressed concern with the possible impacts of the language within the

definition which refers to ``drainage wet areas.'' When OSM explained

that the definition was used in reference to the management of unmined

lands for which only information was required under the Indiana

Program, EPA issued a concurrence for the definition (Administrative

Record No. IND-1507).

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

from either agency.

V. Director's Decision

Based on the above findings, the Director is approving the proposed

amendment as submitted by Indiana on May 11, 1995.

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 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(20(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 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 3, 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 (lll) to read as

follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(111) The following rules, as submitted to OSM on May 11, 1995, are

approved effective October 16, 1995.

310 IAC 12-0.5-2--Definition of acid drainage.

310 IAC 12-0.5-15--Definition of augmented seeding, fertilization, or

irrigation.

310 IAC 12-0.5-57--Definition of high level management.

310 IAC 12-0.5-95--Definition of public building.

310 IAC 12-0.5-99--Definition of randomly located.

310 IAC 12-0.5-123--Definition of support facility.

[FR Doc. 95-25555 Filed 10-13-95; 8:45 am]

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