Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-131-FOR; State Program Amendment No. 95-13]

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 regulations pertaining to the definition of

``affected area,'' submittal of underground mining operation plans, and

the standards for prime farmland restoration by surface and underground

coal mining operations. The amendment is intended to revise the Indiana

program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: September 29, 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-1597),

Indiana submitted a proposed amendment to its program pursuant to

SMCRA. Indiana submitted the proposed amendment in response to the

required program amendment at 30 CFR 914.16(n), 914.16(p), and

914.16(gg) and at its own initiative.

OSM announced receipt of the proposed amendment in the April 6,

1998, Federal Register (63 FR 16725), 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 proposed 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 a concern

relating to a technical error at 310 IAC 12-3-78(a)(2), underground

mining and postmining land use. Also, at 310 IAC 12-0.5-6, definition

of ``affected area,'' OSM identified a concern relating to the

exemption criteria in subsection (b). OSM notified Indiana of these

concerns by letter dated July 1, 1998 (Administrative Record No. IND-

1616).

By letter dated July 17, 1998 (Administrative Record No. IND-1618),

Indiana responded to OSM's concerns by stating that the editorial error

at 310 IAC 12-3-78(a)(2) would be corrected as an errata. Indiana also

provided clarification that all the criteria at 310 IAC 12-0.5-6(b)

will be used to determine if a road is exempt from the definition of

``affected area.'' Because no substantive revisions were made to the

amendment, OSM did not reopen the public comment period.

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. 310 IAC 12-0.5-6(a). Indiana amended 310 IAC 12-0.5-6(a) by

replacing the terms ``an'' and ``a'' with the term ``any'' to refer to

sites and areas which would be considered ``affected areas.'' This is

consistent with the use of the term ``any'' in the counterpart Federal

definition of ``affected area'' at 30 CFR 701.5. The Director finds

that the revisions satisfy the requirement placed on the Indiana

program at 30 CFR 914.16(n) and that Indiana's revised language at 310

IAC 12-0.5-6(a) is no less effective than language found at 30 CFR

701.5. Therefore, the Director is approving the revisions and removing

the required amendment.

2. 310 IAC 12-0.5-6(b) and (c). Indiana added language at 310 IAC

12-0.5-6(b) identifying the criteria for exemption of roads included in

the affected area. Subsection (b)(1) requires that the road be

``designated as a public road pursuant to the laws of the jurisdiction

in which it is located.'' Subsection (b)(2) requires that the road be

``maintained with public funds, and constructed in a manner similar to

other public roads of the same classification within the

jurisdiction.'' Subsection (b)(3) requires that the road has

``substantial (more than incidental) public use.'' Subsection (b)(4)

requires that ``the extent and the effect of mining-related uses of the

road by the permittee does not warrant regulation as part of the

surface coal mining and reclamation operation.'' Subsection (c)

requires the director to determine on a case-by-case basis whether a

road satisfies the requirements at 310 IAC 12-0.5-6(b) based on the

mining related use of the road and consistent with Indiana's definition

of ``surface coal mining operations.''

The language at subsections (b)(1), (b)(2), and (b)(3) is

substantively the same as language found in the Federal definition at

30 CFR 701.5. OSM suspended its definition of ``affected area'' at 30

CFR 701.5 insofar as it might limit jurisdiction over roads covered by

the definition of ``surface coal mining operations'' (51 FR 41952,

November 20, 1986). OSM's revised road rules were published on November

8, 1988, 53 FR 45192. In finalizing those rules, OSM declined to add a

reference to ``affected area'' to the definition of road on the basis

that the definition of ``affected area'' as partially suspended no

longer provides additional guidance as to which roads are included in

the definition of surface coal mining operations. At the same time, OSM

declined to expressly exclude public roads from the definition of road.

The preamble stated that OSM is concerned that roads constructed to

serve mining operations not avoid compliance with performance standards

by being deeded to public entities, but it was not OSM's intent to

automatically extend

[[Page 51828]]

jurisdiction into the existing public road network. Instead,

jurisdiction decisions are to be made by the regulatory authorities on

a case-by-case basis. Indiana intends to continue to use the definition

of ``affected area'' in determining which roads are subject to

jurisdiction. The provisions at 310 IAC 12-0.5-6(b)(4) and (c) clarify

when a public road will be regulated and adequately addresses the

concerns OSM expressed in the November 8, 1988, preamble (53 FR 45192)

regarding public roads. The Director finds that Indiana's definition of

``affected area'' is no less effective than the Federal regulations

concerning jurisdiction over public roads and is consistent with the

Federal definition of ``affected area.'' Therefore, the Director is

approving 310 IAC 12-0.5-6(b) and (c).

3. 310 IAC 12-3-78(a). Indiana amended 310 IAC 12-3-78(a) to

require underground permit applications to ``contain a description of

the mining operations proposed to be conducted within the proposed

permit area and the proposed life of the mine area where such

information is necessary to demonstrate that reclamation required by

IC-14-34 can be accomplished by the applicant.'' Subdivisions (1) and

(2) of 310 IAC 12-3-78(a) outline the minimum elements of the required

description. The Director finds that the language at 310 IAC 12-3-78(a)

is substantively the same as that found at 30 CFR 784.11. Therefore,

the Director approves the amendment.

4. 310 IAC 12-3-78(b). Indiana added language at 310 IAC 12-3-78(b)

requiring applicants for underground coal mining and reclamation

permits to submit descriptions, plans, and drawings for all support

facilities within the proposed permit area. The Director finds that

Indiana's language at 301 IAC 12-0.5-6(a) is substantively the same as

the Federal language found at 30 CFR 784.30. Therefore, the Director

approves the amendment.

5. 310 IAC 12-5-98(d)(1). Indiana added language at 310 IAC 12-5-

98(d)(1) that requires the soil profile be determined by the U.S. Soil

Conservation Service. The Director finds that the revision satisfies

the requirement placed on the Indiana program at 30 CFR 914.16(p), and

that Indiana's revised language at 301 IAC 12-5-98(d)(1) is no less

effective than the Federal language at 30 CFR 785.15(c)(1)(ii).

Therefore, the Director is approving the revision and removing the

required amendment.

6. 310 IAC 12-5-145.5. Indiana added a provision at 310 IAC 12-5-

145.5 to require the director to use ``any prime farmland soil-

reconstruction specifications promulgated as rules by the United States

Soil Conservation Service for Indiana'' in order to carry out his or

her responsibilities under 310 IAC 12-3-98 and 310 IAC 12-4. The

Director finds that this provision satisfies the requirement placed on

the Indiana program at 30 CFR 914.16(gg) and that Indiana's requirement

at 301 IAC 12-5-145.5 is no less effective than the Federal language at

30 CFR 823.4. Therefore, the Director is approving Indiana's rule and

removing the required amendment.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment. By letter

dated April 30, 1998 (Administrative Record No. IND-1605), the Indiana

Coal Council (ICC) responded that while the Federal regulation at 30

CFR 823.4 does not state that the regulatory authority may use any

promulgated United States Soil Conservation Service prime farmland

soil-reconstruction specifications as rules, the language at 310 IAC

12-5-145.5 is still not substantively different from the Federal rule.

ICC points out that a U.S. District Court for the District of Columbia

ruled that the SCS soil reconstruction specifications required by SMCRA

qualify as rules and therefore must be subject to public review.

Further, the Court noted that OSM agreed and advised SCS to publish its

proposed standards for public review. ``Therefore the effect of the

additional language in the proposed Indiana rule is simply to conform

the substance of the rule to the Federal rule as interpreted by the

Office of Surface Mining and the courts.'' ICC believes the amendment

should be approved.

OSM agrees that the language at 310 IAC 12-5-145.5 conforms to the

judicial and agency interpretation of 30 CFR 823.4. Furthermore, the

language used at 310 IAC 12-5-145.5 is identical to the language

required at 30 CFR 914.16(gg). The Director is approving the revision.

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. By letter dated

April 17, 1998 (Administrative Record No. IND-1604), the U.S. Fish and

Wildlife Service responded that it has no comments on IN-131-FOR.

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 the EPA's concurrence.

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

proposed amendment from the EPA (Administrative Record No. 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 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.

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 regulations as proposed by Indiana with

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

regulations 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 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

[[Page 51829]]

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: September 14, 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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Original amendment submission Date of final

date publication Citation/description

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* * * *

* * *

March 6, 1998................. September 29, 310 IAC 12-0.5-6(a)

1998. through (c); 12-3-

78(a) and (b); 12-5-

98(a), (c) and (d);

and 12-5-145.5.

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3. Section 914.16 is amended by removing and reserving paragraphs

(n), (p), and (gg).

[FR Doc. 98-25979 Filed 9-28-98; 8:45 am]

BILLING CODE 4310-05-P