Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-130-FOR; State Program Amendment No. 95-8]

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 an 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 its rules pertaining to permit application

requirements for reclamation plans, public availability of information,

and stream buffer zones. The amendment is intended to revise the

Indiana program to be consistent with the corresponding Federal

regulations.

EFFECTIVE DATE: July 24, 1998.

FOR FURTHER INFORMATION CONTACT: 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, Indiana 46204-1521. Telephone: (317)

226-6700. Internet: [email protected].

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 March 6, 1998 (Administrative Record No. IND-1596),

Indiana submitted a proposed amendment to its program pursuant to

SMCRA. Indiana submitted the amendment at its own initiative.

OSM announced receipt of the amendment in the April 6, 1998 Federal

Register (63 FR 16723), and in the same document opened the public

comment period and provided an opportunity for a public hearing or

meeting on the adequacy of the amendment. The public comment period

closed on May 6, 1998. Because no one requested a public hearing or

meeting, none was held.

During its review of the amendment, OSM identified concerns

relating to technical errors at 310 IAC 12-3-80(a), reclamation plan

requirements; 310 IAC 12-5-32(a)(1), water quality standards; and 310

IAC 12-5-32(a)(2), requirements for stream channel diversions. OSM

notified Indiana of these concerns by letter dated April 20, 1998

(Administrative Record No. IND-1603).

By electronic mail dated May 15, 1998 (Administrative Record No.

IND-1608), Indiana responded to OSM's concerns by stating that the

editorial errors at 310 IAC 12-3-80(a), 12-5-32(a)(1), and 12-5-

32(a)(2) would be corrected. Because no substantive revisions were made

to the amendment, OSM did not reopen the public comment period.

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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

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.

Revisions to Indiana's Rules That Are Substantively Identical to the

Corresponding Provisions of the Federal Regulations

The proposed State rules discussed below contain language that is

the same as or similar to the corresponding sections of the Federal

regulations. Differences between the proposed State rules and the

Federal regulations are nonsubstantive.

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Topic State rules Federal counterpart regulation

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Reclamation plans--surface mining..... 310 IAC 12-3-46(a).......................................... 30 CFR 780.18(a).

Estimate of reclamation cost--surface 310 IAC 12-3-46(b)(2)....................................... 30 CFR 780.18(b)(2).

mining.

Final surface configuration plan-- 310 IAC 12-3-46(b)(3)....................................... 30 CFR 780.18(b)(3).

surface mining.

Soil removal/replacement plan--surface 310 IAC 12-3-46(b)(4)....................................... 30 CFR 780.18(b)(4).

mining.

Revegetation plan--surface mining..... 310 IAC 12-3-46(b)(5)....................................... 30 CFR 780.18(b)(5).

Soil testing plan--surface mining..... 310 IAC 12-3-46(b)(5)(g).................................... 30 CFR 780.18(b)(5)(vii).

Reclamation plan--underground mining.. 310 IAC 12-3-80(a).......................................... 30 CFR 784.13(a).

Estimate of reclamation cost-- 310 IAC 12-3-80(b)(2)....................................... 30 CFR 784.13(b)(2).

underground mining.

Final surface configuration plan-- 310 IAC 12-3-80(b)(3)....................................... 30 CFR 784.13(b)(3).

underground mining.

Soil removal/replacement plan-- 310 IAC 12-3-80(b)(4)....................................... 30 CFR 784.13(b)(4).

underground mining.

Revegetation plan--underground mining. 310 IAC 12-3-80(b)(5)....................................... 30 CFR 784.13(b)(5).

Public availability of information.... 310 IAC 12-3-110(f)......................................... 30 CFR 773.13(d)(3)(iii).

Information disclosure procedures..... 310 IAC 12-3-110(g)......................................... 30 CFR 773.13(d)(3).

Stream buffer zones--surface mining... 310 IAC 12-5-32(a).......................................... 30 CFR 816.57(a).

Marking of stream buffer zones-- 310 IAC 12-5-32(b).......................................... 30 CFR 816.57(b).

surface mining.

Stream buffer zones--underground 310 IAC 12-5-97(a).......................................... 30 CFR 817.57(a).

mining.

Marking of stream buffer zones-- 310 IAC 12-5-97(b).......................................... 30 CFR 817.57(b).

underground mining.

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Because the above revisions are identical in meaning to the

corresponding Federal regulations, the Director finds that Indiana's

rules are no less effective than the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the amendment, but none were

received.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

amendment from various Federal agencies with an actual or potential

interest in the Indiana program (Administrative Record No. IND-1600).

On April 17, 1998, the U.S. Fish and Wildlife Service (FWS) responded

to OSM's request (Administrative Record No. IND-1604). The FWS

commented that 310 IAC 12-5-32(a)(1) and (a)(2) referred to underground

mining activities when they should in fact be referring to surface

mining activities. OSM notified Indiana of these concerns by letter

dated April 20, 1998 (Administrative Record No. IND-1603). Indiana

responded to OSM's concerns by electronic mail dated May 15, 1998

(Administrative Record No. IND-1608), stating that the editorial errors

at 12-5-32(a)(1) and (a)(2) would be corrected. The FWS also commented

that the addition of intermittent streams to the 100-foot disturbance

buffer constraint at 310 IAC 12-5-32(a) and 310 IAC 12-5-97(a) is a

``major improvement for protection of water quality and aquatic

resources.'' Finally, the FWS commented that compliance with State or

Federal water quality standards as required by 310 IAC 12-5-32(a)(1)

and 310 IAC 12-5-97(a)(1) should be consistent with the methodology

used by the Indiana Department of Environmental Management in its

reviews under Section 401 of the Clean Water Act. Indiana's regulations

at 310 IAC 12-5-32(a)(1) and 310 12-5-97(a)(1) are substantially

identical to the Federal regulations at 30 CFR 816.57(a)(1) and 30 CFR

817.57(a)(1), and therefore are not inconsistent with the Federal

requirements. The methodology used to ensure compliance is not at issue

in this rulemaking. However, a copy of the FWS comments were given to

Indiana for its consideration.

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

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 the

EPA's concurrence.

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

amendment from the EPA (Administrative Record No. IND-1600). The EPA

did not respond to OSM's request.

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 amendments which may have an effect on historic properties

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

the SHPO and ACHP (Administrative Record No. IND-1600). Neither the

SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the amendment as

submitted by Indiana on March 6, 1998.

The Director approves the rules as proposed by Indiana with the

provision that they be fully promulgated in identical form to the rules

submitted to and reviewed by OSM and the public.

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

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conformity with the Federal standards without undue delay. Consistency

of State and Federal standards is required by SMCRA.

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 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

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.

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: July 9, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 914 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 in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 914.15 Approval of Indiana regulatory program amendments.

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Date of final

Original amendment submission date publication Citation/description

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March 6, 1998........................ July 24, 1998.......... 310 IAC 12-3-46(a), (b)(2) through (b)(5); 12-3-

80(a), (b)(2) through (b)(5); 12-3-110 (f),

(g); 12-5-32(a), (b); 12-5-97(a), (b).

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[FR Doc. 98-19791 Filed 7-23-98; 8:45 am]

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