Indiana Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-139-FOR]

Indiana Abandoned Mine Land Reclamation Plan

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 abandoned

mine land reclamation plan (hereinafter referred to as the ``Indiana

plan'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The proposed amendment consists of revisions to the Indiana

plan pertaining to procedures for ranking and selecting reclamation

projects, coordination with other programs, reclamation of private

land, public participation policies, organization of designated agency,

Applicant/Violator System (AVS) requirements, flora and fauna of

southwestern Indiana, and the emergency response reclamation program.

The amendment is intended to revise the Indiana plan to be consistent

with the corresponding Federal regulations and SMCRA.

EFFECTIVE DATE: March 16, 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.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Plan

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 Plan

On July 29, 1982, the Secretary of the Interior approved the

Indiana plan. Background information on the Indiana plan, including the

Secretary's findings, the disposition of comments, and the approval of

the plan can be found in the July 26, 1982, Federal Register (47 FR

32110). Subsequent actions concerning the Indiana plan and amendments

to the plan can be found at 30 CFR 914.20 and 914.25.

II. Submission of the Proposed Amendment

By letter dated July 23, 1997 (Administrative Record No. IND-1579),

Indiana submitted a proposed amendment to its plan pursuant to SMCRA.

Indiana submitted the proposed amendment in response to a September 26,

1994, letter (Administrative Record No. IND-1583) that OSM sent to

Indiana in accordance with 30 CFR 884.15(d) and at its own initiative.

OSM announced receipt of the proposed amendment in the August 8,

1997, Federal Register (62 FR 42713), 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 September 8, 1997.

During its review of the amendment, OSM identified some editorial

errors relating to citation references, agency references, subparagraph

notations, and typographical errors. OSM notified Indiana of these

concerns by letter dated September 16, 1997 (Administrative Record No.

IND-1589). By letter dated February 4, 1998 (Administrative Record No.

IND-1594), Indiana notified OSM that the changes would be made and a

copy of the corrected plan submitted to OSM. Indiana also requested

that OSM proceed with publication of a final rule in the Federal

Register. Because the corrections needed are nonsubstantive in nature,

the Director is proceeding with publication of the final decision on

the proposed amendment.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and the

Federal regulations at 30 CFR 884.14 and 884.15 finds that the proposed

plan amendment meets the requirements of the corresponding Federal

regulations and is in compliance with SMCRA. 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. Miscellaneous Changes

At sections 884.13(c)(4), 884.13(c)(5), and 884.13(c)(6), Indiana

changed statute citation references to reflect re-codification of the

Indiana Surface Coal Mining and Reclamation Act under House Enrolled

Act No. 1047. This re-codification was approved by OSM on April 8, 1996

(61 FR 15378).

The Director finds that the above proposed revisions do not alter

the substance of the previously approved Indiana plan.

2. Reclamation Project Ranking and Selection Procedures, 884.13(c)(2)

a. At section 884.13(c)(2), Indiana added a new subcategory to its

Priority II objective concerning abandoned mine land (AML) problems

which adversely impact the public health, safety, or general welfare.

Potential sites may now include any water body adversely affected by

acid drainage derived from coal mine sources which has reduced

recreational or aesthetic value and for which there is local support

for reclamation. Indiana's existing plan at section 884.13(c)(2)

requires Indiana to ensure that priority is given to those eligible

post-1997 sites which are in the immediate vicinity of a residential

area or which have an adverse economic impact upon a community in

accordance with section 402(g)(4)(C) of SMCRA.

Section 403(a)(2) of SMCRA defines a Priority II site as one where

reclamation is needed to protect the public health, safety, and general

welfare from adverse effects of coal mining practices. The Federal

regulation at 30 CFR 884.13(c)(2) requires State reclamation plans to

include the specific criteria, consistent with section 403 of SMCRA,

for ranking and identifying projects to be funded. The Director finds

that the addition of the proposed subcategory for Indiana's Priority II

objective meets the requirement of 30 CFR 884.13(c)(2) and is not

inconsistent with the requirement of section 403(a)(2) of SMCRA.

b. At section 884.13(c)(2), Indiana deleted its former Priority IV

objective concerning AML problems which present a potential for

research and demonstration projects related to mine reclamation and

renumbered former Priority V and VI as priority IV and V, respectively.

The Energy Policy Act of 1992 amends SMCRA on October 24, 1992, by

deleting the fourth priority regarding research and demonstration

projects relating to the development of surface mining reclamation and

water quality control program methods and techniques originally found

in section 403(a) of SMCRA. Therefore, the Director finds that

Indiana's removal of its former Priority IV objective is in compliance

with the amended objectives of section 403(a) of SMCRA.

c. At section 884.13(c)(2), Indiana added a new provision entitled

``Remined Sites.'' Any site that is eligible for AML reclamation fund

expenditures, that is remined or reaffected by mining, remains eligible

for AML reclamation after bond release

[[Page 12649]]

or bond forfeiture. Indiana's existing provision entitled ``Bond

Forfeiture'' provides that eligibility of bond forfeiture sites to

receive AML funding will be determined consistent with all Federal laws

and regulations including sections 401 through 411 of SMCRA.

The Energy Policy Act of 1992 amended SMCRA on October 24, 1992, by

revising section 404 of SMCRA to extend eligibility for AML reclamation

fund expenditures to lands which are eligible for remining. The

revision to section 404 of SMCRA provides that surface coal mining

operations on lands eligible for remining shall not affect the

eligibility of such lands for reclamation and restoration after the

release of the bond or deposit. In the event the bond or deposit is

forfeited, available funds may be used if the amount of such bond or

deposit is not sufficient to provide for adequate reclamation or

abatement. On May 31, 1994, OSM added a new provision at 30 CFR

874.12(h) to implement this requirement. The Director finds that

Indiana's proposed revision for remined sites in conjunction with its

existing provision for bond forfeiture sites is consistent with the

provisions of section 404 of SMCRA and CFR 874.12(h) of the Federal

regulations concerning remining operations.

3. Coordination with Other Programs, 884.13(c)(3)

In its provision entitled ``Natural Resources Conservation

Service--Rural Abandoned Mine Program,'' Indiana: (1) changed

references from ``Soil Conservation Service (SCS)'' to ``Natural

Resources Conservation Service (NRCS)'' and from ``SCS'' to ``NRCS'' to

reflect that Federal agency's name change; (2) changed references from

``AML program grants personnel'' to ``Indiana Restoration Program'' to

reflect changes in the State organization; and (3) removed the language

``Division of Reclamation annual plans will be developed with SCS as

funding is made available.'' In its provision entitled ``Emergency

Policy,'' Indiana removed the existing language and added the following

new language: ``Indiana's implementation of the Emergency Reclamation

Program is defined in the attached Amendment E.R.P.''.

The Director finds that the revisions proposed by Indiana either

correct or clarify existing provisions. Therefore, this section of the

State plan continues to meet the Federal requirements at 30 CFR

884.13(c)(3) to describe coordination of reclamation work among the

State reclamation program, the Rural Abandoned Mine Program, the

reclamation programs of any Indian tribes, and OSM's reclamation

programs.

4. Reclamation of Private Land, 884.13(c)(5)

a. Indiana removed the minimum 30-day time period for allowing the

landowner to prepay the amount of a proposed lien. The revised

provision now requires that prior to the time of actual filing of the

proposed lien, the landowner shall be notified of the amount of the

proposed lien and shall be allowed a reasonable time to prepay that

amount instead of allowing the lien to be filed against the property

involved. The Director finds that Indiana's revised provision is

substantively identical to the counterpart Federal provision at 30 CFR

882.13(b) and meets the requirement of 30 CFR 884.13(c)(5) that a State

reclamation plan include policies and procedures regarding reclamation

on private land under 30 CFR part 882.

b. Indiana added a new provision that allows the landowner, within

60 days of the lien being filed, to petition under local law to

determine the increase in market value of the land as a result of the

reclamation work. The Director finds that this provision is

substantively identical to the counterpart Federal provision at 30 CFR

882.13(c) and meets the requirement of 30 CFR 884.13(c)(5).

5. Public Participation Policies, 884.13(c)(7)

a. Indiana added a new public participation policy provision which

states that ``the publication `Citizens Guide to Indiana's Abandoned

Mine Land Program' is widely circulated to all interested citizens.''

Indiana revised its provision concerning how the Department of

Reclamation (DoR) responds to public concerns regarding private

property located over abandoned deep mined areas by specifying that the

DoR staff responds ``by investigating complaints, providing technical

information and recommending alternatives for action.'' The existing

provision did not require the DoR staff to provide technical

information.

The Director finds that the proposed revisions serve to enhance

Indiana's public participation policy and meet the requirement of 30

CFR 884.13(7) that a State plan include public participation and

involvement in the preparation of the State reclamation plan and in the

State reclamation program.

b. Indiana removed the existing language pertaining to its

intergovernmental review process pursuant to Executive Order (E.O.)

12372, and added a statement that its direct contact provisions have

replaced the E.O. 12372 requirements. Indiana's existing provisions for

intergovernmental review include direct contact with elected officials

on the Federal, State, county, township, and municipal level. The

contact includes a description of the reclamation work planned for each

site within the official's area of concern, maps that aid all reviewers

in locating proposed sites, and a questionnaire which gives the

recipient the opportunity to participate indirectly in the AML

reclamation program's planning process prior to submission to OSM for

authorization to proceed with each project. Indiana also requires that

detailed descriptions of proposed reclamation sites and construction

activities be distributed to various State and Federal agencies prior

to funding an application in order to allow inter-agency review to

provide guidance in designated specialized fields to more fully meet

the concerns and intent of State and Federal regulations such as the

National Fish and Wildlife Coordination Act and the National Endangered

Species Act.

The Director finds that Indiana's existing direct contact

provisions meet the requirements of E.O. 12372 for intergovernmental

review, and is approving the removal of the E.O. 12372 process

provision.

c. Indiana revised its plan to require that direct contact be made

with elected officials on the Federal, State, county, township, and

municipal and/or town level before it requests authorization from OSM

to proceed with each project. Indiana revised its plan to require that

detailed descriptions of proposed reclamation sites and construction

activities be distributed to various State and Federal agencies prior

to funding an application. Indiana revised its public meeting provision

to provide that meetings be held prior to requesting OSM's

authorization to proceed. Indiana also revised its plan to require that

when a construction site is selected, the Project Manager contacts the

affected land owners. In the existing plan these contacts were required

prior to submission of a grant application. The Director finds that

these revisions reflect revised grant procedures implemented by OSM

that do not require specific project submissions or approvals at the

time of grant application or issuance, and is approving them.

d. Indiana deleted the existing paragraphs specifying its public

meeting policy and format, and added the following revised public

meeting policy:

Public participation and awareness of a proposed reclamation

project may be carried out through public meetings prior to

requesting authorization to proceed. The

[[Page 12650]]

meetings may be held at any location in order to satisfy the

concerns of citizens over a specific proposed site, or any group of

sites. Locations are selected for the meetings based upon special

requests or in response to citizen inquiry. Public notices are

published once per week for two consecutive weeks in a general

circulation newspaper within the county where the proposed site is

located. A thirty day comment period is allowed for response to

these public notices prior to requesting authorization to proceed.

Indiana's previous provision did not allow for a specific thirty

day comment period. The Director finds that the revised public meeting

provision enhances Indiana's public participation policy and meets the

requirement of 30 CFR 884.13(c)(7).

6. Organization of the Designated Agency, 884.13(d)(1)

Indiana proposed several revisions to this section to reflect its

current organization for conducting the reclamation program including

the following:

Indiana deleted the paragraph on the ``Geological Survey Division''

to reflect the survey being separated from the Department of Natural

Resources into an institute of the Indiana University. The

organizational chart of the Department of Natural Resources was revised

to reflect the current organization. The Division of Reclamation

organizational chart and organization references throughout the plan

were revised to reflect the current organization. Indiana revised the

current organizational structure for management of the Indiana

abandoned mined lands reclamation program by changing the name of the

AML Section to Restoration Program. The Restoration Program was re-

aligned into three functions designated Technical Services, Project

Design, and Project Management directly under the Restoration Program

Coordinator. A new position for Emergency Coordinator was added and the

Field Operations Coordinator position was moved directly under the

Restoration Program Coordinator. The Program Planning function was

changed to the Technical Services Manager function. The Environmental

Specialist, Inventory Specialist, and Financial Officer position were

changed to Technical Manager positions. The surveyor positions were

realigned from under the Chief Engineer to under the Construction

Supervisor. An Applicant/Violator System (AVS) Coordinator position was

added under the Regulatory Program function.

The Director finds that the proposed revisions meet the Federal

requirement at 30 CFR 884.13(d)(1) that a State reclamation plan

include a description of the organization of the designated agency and

its relationship to other State organizations or officials that will

participate in or augment the agency's reclamation capacity.

7. Personnel Staffing Policies, 884.13(d)(2)

Indiana changed its reference to ``DoR and the AML Section'' to

``DoR and the Restoration Program'' in order to reflect the current

organizational structure.

The Director finds that this proposed revision meets the Federal

requirement at 30 CFR 884.13(d)(1).

8. Purchasing and Procurement, 884.13(d)(3)--Applicant/Violator System

(AVS) Requirements

Indiana added a new provision, entitled ``Indiana AML Applicant/

Violator System (AVS) Program,'' to address requirements and procedures

for AVS checks on potential AML contractors. This new provision was

required by OSM in a letter sent to Indiana dated September 26, 1994,

pursuant to 30 CFR 884.15(d). The Federal regulations at 30 CFR 874.16

and 875.20 provide that to receive AML funds, every successful bidder

for an AML contract must be eligible under 30 CFR 773.15(b)(1), at the

time of contract award, to receive a permit or conditional permit to

conduct surface coal mining operations. Bidder eligibility must be

confirmed by OSM's automated Applicant/Violator System for each

contract to be awarded. Indiana developed a procedure within the State

contracting process to satisfy these requirements. All successful

bidders on AML federally funded projects must comply with 30 CFR

874.16, 875.20, and 773.15(b)(1). Specifically, all successful low

bidders being awarded federally funded AML contracts over $25,000 and

all subcontractors that will be performing over $25,000 of a contract

shall be cleared through the AVS. An AVS Entity Check Form will be

included with each of these bid packages. All contractors submitting a

bid will be required to fill out this form and submit it with their

bids. The contractor is also to submit this form for any applicable

known subcontractors. An AVS Contractor Certification Form will be

included with each bid package. The contractor certifies on this form

that he will comply with the AVS requirements. An AVS Contractor Waiver

Form will also be included with each bid package. This form may be

completed by the bidder and applicable subcontractors if that company

and its owners and controllers have never owned or controlled a surface

coal mining permit. After confirmation through the AVS that the company

and its owners and controllers are not linked to any surface coal

mining permit with any outstanding violations, future AVS clearance

checks would not be necessary unless the ownership or control of the

contractor or subcontractor changes. The low bidder and applicable

subcontractors will be checked through the AVS system by the Division

of Reclamation AVS Coordinator as soon as possible following bid

opening and prior to issuing the Bid Report. If a contractor or

subcontractor has an unresolvable AVS problem, a decision will be made

whether to rebid the project or go to the next low bidder. In order to

prevent excessive delays, a contractor will normally be allowed only

seven days to clear an AVS ``deny'' decision. Emergency program

contractors will also be required to meet Indiana's AVS clearance

requirements. A check after-the-fact will be performed if the Emergency

Response Coordinator determines there is an overriding need to proceed

prior to being able to make an AVS check. The results of this after-

the-fact check could be a basis for future contract denials.

The Director finds that Indiana's requirements for confirming

bidder eligibility by OSM's automated Applicant/Violator System are

consistent with the Federal requirements at 30 CFR 874.16 and 875.20.

9. Flora and Fauna of Southwestern Indiana, 844.13(f)(3)

Indiana revised this section to require the wildlife biologist to

evaluate sites to determine the presence of wetlands, endangered

species, or other environmental concerns. Indiana's existing plan

required the wildlife biologist to evaluate Priority II sites to

determine the presence of wetlands only. Indiana's provision concerning

a significant features review was revised to clarify interaction with

other Divisions in identifying important natural features and to

clarify policy on potential conflicts with endangered species or unique

natural features. A location map and proposed scope of work for each

reclamation site is routed to the Division of Nature Preserves (DNP)

for review. The DNP searches the Indiana Natural Heritage Program

database for each site to determine whether there are any important

natural features recorded at or near the proposed project. The

Restoration Program attempts to resolve any potential conflicts with

endangered species or unique natural features by designing the project

to avoid the

[[Page 12651]]

critical habitat or natural feature. Projects that cannot be designed

for avoidance will be coordinated with the DNP and the Division of Fish

and Wildlife to develop a plan to minimize disturbance and mitigate any

losses. Indiana also made various revisions to the reclamation review

checklist which is completed by the Division of Nature Preserves for

the Division of Reclamation. These revisions include adding the

consideration of impacts to State Nature Preserves, State Forests,

State Reservoirs, and State endangered or threatened species.

The Director finds that Indiana's proposed revisions meet the

Federal requirements of 30 CFR 884.13(f)(3) that a State reclamation

plan include a general description of the conditions prevailing in the

different geographic areas of the State where reclamation is planned

relating to endangered and threatened plant, fish, and wildlife and

their habitat.

10. Amendment E.R.P. (Emergency Reclamation Program)

Indiana revised its emergency response reclamation program

provisions to clarify that the policies and procedures for emergency

reclamation on private and public lands will be the same as for other

AML reclamation activities that are detailed in the approved State

plan. The description of the Emergency Program Coordinator position was

changed to reflect that the position has been established.

The Director finds that the revisions to the Indiana plan relating

to its emergency response reclamation program meet the requirements of

30 CFR 884.13 (c) and (d) and are in compliance with SMCRA and the

Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

OSM 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 884.14(a)(2) and 884.15(a), the Director

solicited comments on the proposed amendment from various other Federal

agencies with an actual or potential interest in the Indiana plan by

letter dated August 4, 1997 (Administrative Record No. IND-1585.) By

letter dated August 20, 1997 (Administrative Record No. IND-1586), the

U.S. Fish and Wildlife Service responded that the proposed program

amendment would have no significant effect on wetlands and would not

affect any Federally endangered species, that other project impacts

would be minor in nature, and that the U.S. Fish and Wildlife Service

had no objections to the proposed amendment.

V. Director's Decision

Based on the above findings, the Director approves the proposed

plan amendment as submitted by Indiana on July 23, 1997.

The Federal regulations at 30 CFR Part 914, codifying decisions

concerning the Indiana plan, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State plan amendment process and to encourage States to

bring their plans into conformity with the Federal standard without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

This proposed 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 and Tribal abandoned mine land reclamation plans and revisions

thereof since each such plan is drafted and promulgated by a specific

State or Tribe, not by OSM. Decisions on proposed abandoned mine land

reclamation plans and revisions thereof submitted by a State or Tribe

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Part

884.

National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed State and Tribal abandoned mine land

reclamation plans and revisions thereof are categorically excluded from

compliance with the National Environmental Policy Act (42 U.S.C. 4332)

by the Manual of the Department of the Interior (516 DM 6, appendix 8,

paragraph 8.4B(29)).

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 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. In making the

determination as to whether this rule would have a significant economic

impact, the Department relied upon the data and assumptions in the

analyses 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: March 5, 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 914.25 is amended in the table in paragraph (a) by

adding a new entry in chronological order by ``Date of final

publication'' to read as follows:

Sec. 914.25 Approval of Indiana abandoned mine land reclamation plan

amendments.

(a) * * *

[[Page 12652]]

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Original amendment submission date Date of final publication Citation/description

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* * * * * * *

July 23, 1997.......................... March 16, 1998........... Indiana plan Secs. 884.13(c)(2) through (7), (d)(1) through (3), (f)(2), (3);

emergency response reclamation program.

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[FR Doc. 98-6687 Filed 3-13-98; 8:45 am]

BILLING CODE 4310-05-M