Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-133-FOR; Amendment No. 95-11]

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 additional requirements, 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 revisions to the

Indiana Surface Coal Mining and Reclamation Act (ISCMRA) as enacted by

the Indiana General Assembly (1995) in House Enrolled Act 1575 (HEA

1575). The proposed amendment concerns lands eligible for remining,

responsibilities of the director of Indiana Department of Natural

Resources (IDNR), and surface and underground tonnage fees. The

amendment is intended to revise the Indiana program to be consistent

with SMCRA and to incorporate State initiatives. The proposed revisions

concerning lands eligible for remining are intended to provide

incentives for the remining and reclamation of previously mined and

inadequately reclaimed lands eligible for expenditures under section

402(g)(4) or 404 of SMCRA as provided for by the Energy Policy Act of

1992.

EFFECTIVE DATE: April 10, 1996.

FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director,

Indianapolis Field Office, Office of Surface Mining Reclamation and

Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania

[[Page 15892]]

Street, Room 301, Indianapolis, Indiana 46204-1521, 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 September 11, 1995 (Administrative Record No. IND-

1509), Indiana submitted a proposed amendment to its program pursuant

to SMCRA. Indiana submitted the proposed amendment at its own

initiative. HEA 1575 amends ISCMRA by adding new sections and revising

existing sections to recodified Indiana Code (IC) 14-8 and 14-34. The

proposed amendment adds new definitions for lands eligible for remining

at IC 14-8-2-144.5 and unanticipated event or condition at IC 14-8-2-

285.5; amends recodified IC 14-34-2-4, Responsibilities of the director

of IDNR; adds IC 14-34-4-8.5, Permit finding concerning an

unanticipated event or condition on lands eligible for remining; adds

IC 14-34-4-10.5, Permit application requirement concerning

unanticipated events or conditions; amends recodified IC 14-34-10-

2(b)(23), Revegetation responsibility periods; amends recodified IC 14-

34-13-1, Reclamation fee requirement for surface coal mining

operations; amends recodified IC 14-34-13-2, Reclamation fee

requirement for underground coal mining operations; and amends

recodified IC 14-34-19-2, Lands and water eligible for reclamation or

drainage abatement expenditures. The recodification of the current

provisions of ISCMRA is proposed in Indiana's Program Amendment No. 95-

10, and it is discussed in a separate final rule.

OSM announced receipt of the proposed amendment in the January 22,

1996, Federal Register (61 FR 1549), 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 February 21, 1996.

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.

Revisions not specifically discussed below concern nonsubstantive

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

reflect organizational changes resulting from this amendment.

1. IC 14-8-2-144.5 Definition of ``Lands Eligible for Remining''

Indiana proposed a definition at IC 14-8-2-144.5 to define the term

``lands eligible for remining'' to mean those lands that are eligible

for funding under IC 14-34-19 or section 402(g)(4) of SMCRA.

Section 701(34) of SMCRA defines the term ``lands eligible for

remining'' to mean those lands that would otherwise be eligible for

expenditures under section 404 or 402(g)(4) of SMCRA. Indiana's statute

at IC 14-34-19 that is referenced in its definition is the State

counterpart provision to section 404 of SMCRA in the Federal

definition. Therefore, the Director finds that Indiana's proposed

definition of ``lands eligible for remining'' at IC 14-8-2-144.5 is no

less stringent than the definition at section 701(34) of SMCRA.

2. IC 14-8-2-285.5 Definition of ``Unanticipated Event or Condition''

Indiana proposed a definition of ``unanticipated event or

condition'' at IC 14-8-2-285.5 that is substantively identical to the

Federal definition at section 701(33) of SMCRA. Therefore, the Director

finds that the proposed definition at IC 14-8-2-285.5 is no less

stringent than SMCRA.

3. IC 14-34-2-4(a)(7) and (b) Responsibilities of the Director of IDNR

Indiana proposed to amend recodified IC 14-34-2-4 [previously IC

13-4.1-2-2(b)] by adding new paragraph (7) to subsection (a) and adding

new subsection (b). At IC 14-34-2-4(a)(7) and (b), Indiana is proposing

to allow the Director of IDNR to submit formal state program amendments

to OSM only after the amendment has been approved by the governor of

Indiana or has become law.

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, the Federal regulation at 30 CFR 732.17(g)

requires that proposed changes to laws or regulations that make up the

approved State program be submitted to the Director as an amendment and

that they shall not take effect for purposes of a State program until

approved as an amendment. However, neither SMCRA nor the Federal

regulations contain specific requirements regarding the administrative

or legislative procedures in the State for rulemaking. Therefore, since

the Director of IDNR must still submit formal State program amendments

to OSM, the Director finds the proposed revisions at IC 14-34-2-4(a)(7)

and (b) do not render the Indiana program less stringent than SMCRA or

less effective than the Federal regulations.

4. IC 14-34-4-8.5 Permit Findings

Indiana is proposing that the finding required by IC 14-34-4-

7(a)(6) and prohibition on the issuance of a permit in IC 14-34-4-8 do

not apply to a violation resulting from an unanticipated event or

condition at a surface coal mining operation on lands eligible for

remining under a permit held by the applicant.

The proposed provision at IC 14-34-4-8.5 is consistent with the

provisions in section 510(e) of SMCRA, which establishes an exemption

from the permit blocking provisions of section 510(c) of SMCRA for any

violation resulting from an unanticipated event or condition occurring

on a remining site, with two exceptions. First, Indiana did not propose

a counterpart to SMCRA's limiting language ``after the date of

enactment of this subsection'' that specified when a violation must

have occurred to be eligible for the exemption. The permit block

exemption in section 510(e) of SMCRA applies to violations that

occurred subsequent to October 24, 1992. Second, Indiana did not limit

the authority of IC 14-34-4-8.5 to September 30, 2004. Section 510(e)

of SMCRA specifies that its authority terminates on September 30, 2004.

The Federal implementing regulation at 30 CFR 773.15(b)(4)(i)(C)

qualified this termination requirement by specifying that the

prohibitions do not apply to permits issued before September 30, 2004,

or any renewals thereof.

Since IC 14-34-4-8.5 is consistent with the other provisions and

the intent of section 510(e) of SMCRA, the Director is approving it

with the requirement that Indiana propose implementing regulations that

include the two limiting provisions. Indiana is to propose implementing

regulations consistent

[[Page 15893]]

with the Federal regulation at 30 CFR 773.15(b)(4)(i), as added on

November 27, 1995 (60 FR 58480), that limits the permit block exemption

to those violations that occur after October 24, 1992, and to those

permits issued before September 30, 2004, or any renewals thereof.

5. IC 14-34-4-10.5 Permit Application Requirement for Remining

Operations

The proposed statute at IC 14-34-4-10.5 authorizes Indiana to

require identification of potential problems in a permit application

for lands eligible for remining. Indiana proposed to add subsection (a)

to require that an applicant make a good faith effort to identify

potential problems that may result in an unanticipated event or

condition in the permit application. Subsection (b) specifies that ``an

event or condition that arises despite substantial adherence to the

applicable operation and reclamation plan may be considered

unanticipated if it was not identified in the application for the

governing permit.''

There is no direct counterpart language in section 510(e) of SMCRA.

However, the Federal regulations at 30 CFR 773.15(b)(4), 773.15(c)(13),

and 785.25 were developed to implement the ``unanticipated event or

condition'' provisions of section 510(e) of SMCRA pertaining to permit

applications for lands eligible for remining. Sections

773.15(c)(13)(ii) and 785.25(b)(1) contain language similar to IC 14-

34-4-10.5(a) by requiring the permit application to identify potential

environmental and safety problems related to prior mining activity at

the site. Therefore, the Director finds that the proposed statute at IC

14-34-4-10.5 is not inconsistent with SMCRA. However, the Federal

regulations contain additional requirements not considered in the

Indiana statute, and he is approving it with the requirement that

Indiana amend its program to provide implementing regulations

consistent with the Federal regulations.

The Director is requiring Indiana to amend its regulations at 310

IAC 12-3-112 consistent with 30 CFR 773.15(b)(4), pertaining to review

of violation requirements and with 30 CFR 773.15(c)(13), pertaining to

written findings for permit application approval, as added on November

27, 1995 (60 FR 58480). He is also requiring Indiana to amend its

regulations at 310 IAC 12-3 consistent with 30 CFR 785.25 (a) through

(c), pertaining to permitting requirements for lands eligible for

remining, as added on November 27, 1995 (60 FR 58480).

6. IC 14-34-10-2(b)(23) Revegetation Responsibility Periods

a. IC 14-34-10-2(b)(23)(A). Indiana proposed to amend recodified IC

14-34-10-2(b)(23) [previously IC 13-4.1-8-1(20)] by limiting the

requirement for 5 years of revegetation responsibility to those lands

not eligible for remining by adding the language ``on lands not

eligible for remining'' to the existing provision pertaining to a 5-

year responsibility period. This provision was designated subdivision

(23)(A). Although not specifically stated, the 5-year revegetation

responsibility period requirement in section 515(20)(A) of SMCRA also

pertains to lands not eligible for remining. Therefore, the Director

finds IC 14-34-10-2(b)(23)(A) is no less stringent than section

515(20)(A) of SMCRA.

b. IC 14-34-10-2(b)(23)(B). Indiana proposed to add new subdivision

(23)(B) that allows a 2-year responsibility period for lands eligible

for remining. Section 515(20)(B) of SMCRA and the amended implementing

Federal regulations at 30 CFR 816/817.116(c)(2)(ii) also allow a 2-year

responsibility period for lands eligible for remining. However, section

510(e) of SMCRA specifies that the authority of section 515(b)(20)(B)

shall terminate on September 30, 2004. The Federal implementing

regulations at 30 CFR 816/817.116(c)(2)(ii) qualify this termination

requirement by specifying permits issued before September 30, 2004, or

any renewals thereof. The proposed Indiana statute does not contain

this termination language.

Since IC 14-34-10-2(b)(23)(B) is consistent with the other

provision language and the intent of section 515(b)(20)(B) of SMCRA,

the Director is approving it with the requirement that Indiana propose

implementing regulations that contain the termination language. Indiana

is to amend its regulations at 310 IAC 12-4-7, period of liability, by

proposing provisions consistent with the Federal regulations at 30 CFR

816/817.116(c)(2)(ii), as added on November 27, 1995 (60 FR 58480),

pertaining to the 2-year revegetation period of responsibility for

lands eligible for remining and to the limitation of the provisions to

permits issued before September 30, 2004, or any renewals thereof.

7. IC 14-34-13-1 Reclamation Fee for Surface Coal Mining Operations

and IC 14-34-13-2 Reclamation Fee for Underground Coal Mining

Operations

Indiana proposed to amend recodified IC 14-34-13 [previously IC 13-

4.1-3-2]. Indiana proposed to limit the provision at IC 14-34-13-1 to

surface coal mining operations, to change the reclamation fee for

surface coal mining operations from five and one-half cents per ton of

coal produced to three cents, and to remove the language which required

fees to be paid only until July 1, 1995. Indiana proposed to add a new

provision at IC 14-34-13-2(a) pertaining to reclamation fees for

underground coal mining operations with support facilities located

within Indiana and to change the reclamation fee for these operations

from five and one-half cents per ton of coal produced to two cents.

Indiana also proposed to remove the language which required fees to be

paid only until July 1, 1995, from its existing provision in IC 14-34-

13-2 and to redesignate it as subsection (b). This provision requires

underground coal mining operations that have no support facilities

located within Indiana but produce coal from reserves located within

Indiana to pay a reclamation fee of one cent per ton of coal produced.

The fees from surface and underground coal mining operations are

deposited into the natural resources reclamation division fund for

administration of the Indiana program.

Section 507(a) of SMCRA provides that an application for a surface

coal mining and reclamation permit shall be accompanied by a fee

determined by the regulatory authority. Such fee may be less than, but

shall not exceed the actual or anticipated cost of reviewing,

administering, and enforcing the permit. The regulatory authority may

develop procedures to allow the fee to be paid over the term of the

permit. After a review of the projected income from the proposed fees,

the Director finds that the income will be less than the anticipated

cost of reviewing, administering, and enforcing permits under the

Indiana program. Therefore, the proposed changes in Indiana's

provisions at IC 14-34-13-1 and IC 14-34-13-2 pertaining to permit fee

amounts do not render these previously approved sections less stringent

than section 507(a) of SMCRA.

8. IC 14-34-19-2 Eligibility of Lands for Reclamation and Restoration

Under the Abandoned Mine Land Program

Indiana proposed to amend recodified IC 14-34-19-2 [previously IC

13-4.1-15-2] by designating the existing language as subsection (a) and

by adding new subsection (b). New subsection (b) specifies that

``surface coal mining operations on lands eligible for remining do not

affect the eligibility of the lands for reclamation and restoration

under this chapter after the

[[Page 15894]]

release of the bond or deposit for the operation under IC 14-34-6.''

The language in the new provision at IC 14-34-19-2(b) is

substantively identical to the Federal counterpart provision in section

404 of SMCRA. Therefore, the Director finds the proposed revisions to

IC 14-34-19-2 do not render it less stringent than section 404 of

SMCRA, and he is approving them.

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 (Administrative

Record No. IND-1514). No comments were received.

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.).

None of the revisions that Indiana proposed to make in this amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (Administrative Record No. IND-1514). EPA

did not respond.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

IND-1514). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with additional

requirements, the proposed amendment as submitted by Indiana on

September 11, 1995.

The Director approves, as discussed in: finding No. 1, IC 14-8-2-

144.5, concerning a definition of ``lands eligible for remining'';

finding No. 2, IC 14-8-2-285.5, concerning a definition of

``unanticipated event or condition''; finding No. 3, IC 14-34-2-4(a)(7)

and (b), concerning responsibilities of the director of IDNR; finding

No. 6.a., IC 14-34-10-2(b)(23)(A), concerning a 5-year revegetation

responsibility period; finding No. IC 14-34-13-1 and 2, concerning

reclamation fees for surface and underground coal mining operations;

and finding No. 8, IC 14-34-19-2, concerning eligibility of lands for

reclamation and restoration under the abandoned mine land program.

With the requirement that Indiana further revise its rules, the

Director approves, as discussed in: finding No. 4, IC 14-34-4-8.5,

concerning violations resulting from an unanticipated event or

condition occurring on a remining site; finding No. 5, IC 14-34-4-10.5,

concerning identification of potential problems in a permit application

for lands eligible for remining; and finding No. 6.b, IC 14-34-10-

2(b)(24), concerning a 2-year revegetation responsibility period for

lands eligible for remining.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the requirement amendment section at 30

CFR 914.16 that, within 60 days of the publication of this final rule,

Indiana must either submit a proposed written amendment, or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with Indiana's established administrative or legislative

procedures.

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 effectively 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) provide that an

amendment shall not take effect for purposes of a State program until

approved by OSM. 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(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

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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: April 3, 1996.

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 (ppp) to read as

follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(ppp) The amendment submitted by Indiana to OSM by letter dated

September 11, 1995, is approved effective April 10, 1996.

3. Section 914.16 is revised to add paragraph (hh) to read as

follows:

Sec. 914.16 Required program amendments.

* * * * *

(hh) By June 10, 1996, Indiana shall submit either a proposed

amendment or a description of an amendment to be proposed, together

with a timetable for adoption of proposed revisions to the Indiana

program to provide implementing regulations for IC 14-34-4-8.5,

concerning violations resulting from an unanticipated event or

condition occurring on a remining site; IC 14-34-4-10.5, concerning

identification of potential problems in a permit application for lands

eligible for remining; and IC 14-34-10-2(b)(24), concerning a 2-year

revegetation responsibility period for lands eligible for remining.

Specifically, Indiana shall amend 310 IAC 12-3-112 by adding a

counterpart to 30 CFR 773.15(b)(4) and 30 CFR 773.15(c)(13), as added

on November 27, 1995 (60 FR 58480); shall amend 310 IAC 12-3 by adding

a counterpart to 30 CFR 785.25, as added on November 27, 1995 (60 FR

58480); and shall amend 310 IAC 12-4-7 by adding counterpart to 30 CFR

816/817.116(c)(2)(ii), as added on November 27, 1995 (60 FR 58480).

[FR Doc. 96-8920 Filed 4-9-96; 8:45 am]

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