Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-144-FOR]

Indiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the

Indiana regulatory program (hereinafter the ``Indiana program'') under

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

proposed amendment consists of revisions to and additions of statutes

pertaining to definitions, permit conditions, and permit revisions. The

amendment is intended to revise the Indiana program to improve

operational efficiency.

This document sets forth the times and locations that the Indiana

program and proposed amendment to that program are available for public

inspection, the comment period during which interested persons may

submit written comments on the proposed amendment, and the procedures

that will be followed regarding the public hearing, if one is

requested.

DATES: Written comments must be received by 4:00 p.m., e.s.t., June 29,

1998. If requested, a public hearing on the proposed amendment will be

held on June 23, 1998. Requests to speak at the hearing must be

received by 4:00 p.m., e.s.t. on June 15, 1998.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Andrew R. Gilmore, Director,

Indianapolis Field Office, at the address listed below

Copies of the Indiana program, the proposed amendment, a listing of

any scheduled public hearings, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

Friday, excluding holidays. Each requester may receive one free copy of

the proposed amendment by contacting OSM's Indianapolis Field Office.

Andrew R. Gilmore, 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) 226-6700.

Indiana Department of Natural Resources, 402 West Washington

Street, Room C256, Indianapolis, Indiana 46204, Telephone: (317) 232-

1547.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,

Indianapolis Field Office, Telephone: (317) 226-6700.

SUPPLEMENTARY INFORMATION:

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, 194.15, and 194.15.

II. Description of the Proposed Amendment

By letter dated May 14, 1998 (Administrative Record No. IND-1606),

Indiana submitted a proposed amendment to its program pursuant to

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

The amendment pertains to revisions of and additions to the Indiana

Code (IC) made by House Enrolled Act (HEA) No. 1074. HEA No. 1074 was

passed through the Indiana Legislature and signed by the Governor of

Indiana on March 12, 1998. Only those portions of HEA No. 1074 that

pertain to Articles 14-8 and 14-34 are being considered in this

document. The full text of the proposed program amendment submitted by

Indiana is available for public inspection at the locations listed

above under ADDRESSES. A discussion of the proposed amendment is

presented below.

1. IC 14-8-2-117.3, Definition for ``Governmental Entity''

Indiana proposes the following definition: ``Governmental entity,

for the purposes of IC 14-22-10-2 and IC 14-22-10.2.5, has the meaning

set forth in IC 14-22-10-2(a).''

2. IC 14-34-4-18, Permit Conditions

Indiana identified the existing provision as subsection (a) and

added the following new provision at subsection (b):

The director may issue a permit subject to the condition that

the permittee obtain or maintain in force other licenses or permits

required for the surface coal mining and reclamation operation.

However, the imposition of a condition under this subsection does

not authorize or require the director to administer or enforce the

requirements of any federal law or of any state law other than this

article.

3. IC 14-34-5-7, Permit Revisions

The existing provisions in subsections (a) and (b) were removed and

the following new provisions were added:

(a) A change in mining or reclamation operations from the

approved mining and reclamation plans that would adversely affect

the permittee's compliance with this article is a permit revision

subject to review and approval as provided in this section and

sections 8 through 8.4 of this chapter.

(b) A permit revision is either: (1) A significant revision

subject to sections 8 and 8.1 of this chapter; (2) a nonsignificant

revision subject to sections 8.2 and 8.3 of this chapter; or (3) a

minor field revision subject to section 8.4 of this chapter.

(c) Permit revisions may be approved by: (1) The director; or

(2) the director's designated representative.

(d) A permit revision may not be approved unless the permittee

demonstrates and the director or the director's designated

representative finds the following:

(1) That reclamation as required by this article and by the

rules adopted by the commission under IC 14-34-2-1 can be

accomplished.

(2) That applicable requirements of IC 14-34-4-7 that are

pertinent to the permit revision are met.

(3) That the permit revision complies with all applicable

requirements of this article and the rules adopted by the commission

under IC 14-34-2-1.

[[Page 29366]]

4. IC 14-34-5-8, Permit Revisions

Indiana proposes to remove the language ``as defined in the rules

adopted under section 6 of this chapter'' and to add the language ``or

minor field revisions'' after the phrase ``based only on nonsignificant

revisions.''

5. IC 14-34-5-8.1, Significant Permit Revisions

Indiana proposes to add a new section that defines significant

permit revisions. A proposed revision of a permit is significant if any

of eight conditions exists. The conditions include: adverse impacts

affecting cultural resources, blasting operations, water supply,

handling of toxic forming or acid forming materials, and fish and

wildlife; the addition of a coal processing facility or a permanent

support facility; the changes will cause a new or an updated probable

hydrologic consequences determination or cumulative hydrologic impact

analysis; or a postmining land use will be changed to a residential

land use, a commercial or industrial land use, a recreational land use,

or developed water resources.

6. IC 14-34-5-8.2, Nonsignificant Permit Revisions

Indiana proposes to add a new section that defines nonsignificant

permit revisions. A proposed revision of a permit is nonsignificant if

any of five conditions exist. The conditions include: (1) For surface

mines, changes in the direction of mining or location of mining

equipment; (2) substitution of mining equipment designed for the same

purpose; (3) for underground mines, any change in the direction or

location of mining within the permit area or shadow area in response to

unanticipated events; (4) a postmining land use other than a change

described in section 8.1; or (5) any other change in the mining or

reclamation plan that will not have a significant effect on achievement

of final reclamation plans, on subsidence control plans, and on the

surrounding area, that does not involve significant delay in achieving

final reclamation or significant change in the land use, or that is

necessitated by unanticipated and unusually adverse weather conditions,

other acts of God, strikes, or other cause beyond the reasonable

control of the permittee.

7. IC-14-34-5-8.3, Nonsignificant Permit Revisions

Indiana proposes to require that a nonsignificant revision in a

mining or reclamation plan must be reviewed and approved in writing by

the director before it may be implemented.

8. IC 14-34-5-8.4, Minor Field Revisions

Indiana's proposed new section adds provisions for approval of

minor field revisions by an inspector in the field. Subsection (a)

defines minor field revisions as those that do not require technical

review or design analysis and are capable of being evaluated in the

field by the director's designated delegate for compliance with section

14-34-5-7(d). Subsection (b) allows a minor field revision to be

approved by a field inspector in an inspection report or on a form

signed in the field. Subsection (c) provides examples of the types of

minor field revisions allowed, including soil stockpile location and

configuration, as-built pond certifications, minor transportation

facility changes, pond depth, shape, and orientation, an area for

temporary drainage control or temporary water storage, equipment

changes, explosive storage areas, minor mine management or support

facility locations, adding United States Natural Resources Conservation

Service conservation practices, methods of erosion protection on

diversions, temporary cessation of mining, and minor diversion location

changes.

9. IC 14-34-5-8.5, Permit Area Extensions

Indiana's proposed statute provides that an extension of the area

covered by a permit, except for an incidental boundary revision, must

be made by applying for a new permit.

10. IC-14-34-5-8.6, Incidental Boundary Revisions

This proposed statute addresses the requirements for incidental

boundary revisions. Subsection (a) provides that five conditions must

apply before an extension is considered an incidental boundary

revision: (1) The extension may not constitute a significant revision

to the method of conduct of mining or reclamation operations; (2) the

extension must be required for the orderly and continuous mining and

reclamation operation; (3) the extension must adjoin the permit or

shadow area acreage; (4) the extended area must be mined and reclaimed

in conformity with the approved permit plans; and (5) the area of the

extension may not exceed the lesser of 10 percent of the area

originally covered by the permit or 20 acres.

Subsection (b) requires that the aggregate of all incidental

boundary revisions of a permit may not exceed the area originally

covered by the permit by more than 15 percent, unless the director

finds that all other provisions of this section are met and the

interests of the public are not adversely affected.

Subsection (c) provides that the aggregate of all incidental

boundary revisions of a permit that involve coal removal may not exceed

the area originally covered by the permit by more than 10 percent.

Subsection (d) specifies the application requirements for

incidental boundary revisions, including size of the area, pre- and

post-mining land uses, maps, proof of the permittee's legal right to

enter and conduct surface coal mining and reclamation operations on the

area, necessary plans, and a statement pertaining to areas unsuitable

for mining.

Subsection (e) provides that an application for an incidental

boundary revision may not be approved unless the applicant demonstrates

and the director finds that reclamation of the area can be accomplished

and that the application complies with all requirements of Article 34.

Subsection (f) requires the director to approve or deny an

incidental boundary revision of a permit within 30 days, unless the

director finds that more than 30 days are needed to adequately review

the application and make the findings required by subsection (e).

Subsection (g) specifies that section 14-34-5-8.6 does not alter

the requirements for the submission of fees and bonds.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Indiana program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Indianapolis Field Office

will not necessarily be considered in the final rulemaking or included

in the Administrative Record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

e.s.t. on June 15, 1998. The location and time of the hearing will be

arranged with those persons requesting the hearing. Any

[[Page 29367]]

disabled individual who has need for a special accommodation to attend

a public hearing should contact the individual listed under FOR FURTHER

INFORMATION CONTACT. If no one requests an opportunity to speak at the

public hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to speak have been heard. Persons in the audience who

have not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the audience who wish

to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

location listed under ADDRESSES. A written summary of each meeting will

be made a part of the Administrative Record.

IV. 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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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.

Unfunded Mandates

OSM has determined and certifies pursuant to the Unfunded Mandates

Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a

cost of $100 million or more in any given year on local, state, or

tribal governments or private entities.

List of Subjects in 30 CFR Part 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 22, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 98-14272 Filed 5-28-98; 8:45 am]

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