Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-145-FOR; State Program Amendment No. 98-1]

Indiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is approving an amendment to the Indiana regulatory program (Indiana

program) under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). Indiana proposed reference changes in its surface and

underground mining rules concerning application requirements for

geology descriptions and public participation. Indiana also proposed to

add a new provision to its rule pertaining to surface mining

application requirements for postmining land use information. Indiana

intends to revise its program to be consistent with the corresponding

Federal regulations.

EFFECTIVE DATE: June 14, 1999.

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

Indianapolis Field Office, Office of Surface Mining, 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. You can find background information on

the Indiana program, including the Secretary's findings, the

disposition of comments, and the conditions of approval in the July 26,

1982, Federal Register (47 FR 32107). You can find later actions on the

Indiana program at 30 CFR 914.10, 914.15, 914.16, and 914.17.

II. Submission of the Proposed Amendment

By letter dated March 8, 1999 (Administrative Record No. IND-1633),

Indiana sent us an amendment to its program under SMCRA. Indiana sent

the amendment at its own initiative. Indiana proposed to amend the

Indiana Administrative Code (IAC) at 310 IAC 12-3 regarding permit

application requirements for geology descriptions, postmining land

uses, and public participation.

We announced receipt of the amendment in the March 25, 1999,

Federal Register (64 FR 14412). In the same document, we 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 April 26, 1999. Because no one requested a public hearing or

meeting, we did not hold one.

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15

and 732.17, are our findings concerning the amendment.

1. 310 IAC 12-3-31 Surface Mining Permit Applications; Geology

Description and 310 IAC 12-3-69 Underground Mining Permit Applications;

Geology Description

a. At 310 IAC 12-3-31(a)(3), Indiana replaced a reference to ``IC

13-4.1'' with a reference to ``IC 14-34.'' This change was necessary

because Indiana recodified the Indiana Surface Coal Mining and

Reclamation Act, effective July 1, 1995. Indiana repealed Indiana Code

(IC) 13-4.1 and recodified its substantive provisions at IC 14-8 and

14-34. We find that this change will not make Indiana's regulation less

effective than the counterpart Federal regulation at 30 CFR

780.22(a)(3).

b. At 310 IAC 12-3-31(c), 12-3-69(a)(3), and 12-3-69(c)(3), Indiana

replaced references to ``this rule'' with references to ``this

article.'' Since Article 12 contains all of the State's rules for coal

mining and reclamation operations, the references to ``this article''

in Indiana's rules are consistent with the references to ``this

chapter'' in the counterpart Federal regulations at 30 CFR 780.22(c),

784.22(a)(3), and 784.22(c)(3). Therefore, Indiana's amended

regulations at 310 IAC 12-3-31(c), 12-3-69(a)(3), and 12-3-69(c)(3) are

no less effective than the counterpart Federal regulations.

c. At 310 IAC 12-3-69(d), Indiana replaced a reference to

``subsection (b)'' with a reference to ``subsections (b)(2) and

(b)(3).'' As revised, the director may waive in writing only the permit

application geologic information requirements for subsections (b)(2)

and (b)(3) if that information is unnecessary because other reliable

information is available. This is consistent with the requirements of

the counterpart Federal regulation at 30 CFR 784.22(d). We find that

Indiana's amended regulation at 310 IAC 12-3-69(d) is no less effective

than the counterpart Federal regulation.

2. 310 IAC 12-3-48 Surface Mining Permit Applications; Reclamation and

Operations Plan; Postmining Land Uses

Indiana proposes to revise this rule by adding a new provision at

subsection (a)(3) that requires the detailed description of the

proposed land use in the reclamation plan to include an explanation of

the consideration given to making all of the proposed surface mining

activities consistent with surface owner plans and applicable state and

local land use plans and programs. Indiana's new provision at 310 IAC

12-3-48(a)(3) is substantively the same as the counterpart Federal

regulation provision at 30 CFR 780.23(b)(3), and we are approving it.

3. 310 IAC 12-3-106 Permit Applications; Public Participation

At 310 IAC 12-3-106(a)(8), Indiana proposes to correct a reference

to its experimental practice regulatory provisions by replacing the

reference to ``section 94'' with a reference to ``section 94.1.''

Indiana repealed section 94 and added section 94.1 effective October 1,

1993. We find that this correction will make Indiana's regulation no

less effective than the counterpart Federal regulation at 30 CFR

773.13(a)(vi).

[[Page 31692]]

4. IC 14-34-8-8 Bond Pool

In the April 20, 1992, Federal Register (57 FR 14350), we approved

IC 13-4.1-6.5-8 [currently IC 14-34-8-8] with two additional

requirements. At 30 CFR 914.16(h)(1), we required Indiana to complete

an actuarial study of the surface coal mine reclamation bond pool as

set forth in the OSM and Indiana Department of Natural Resources

Cooperative Agreement GR 193184 and to initiate action to implement any

forthcoming recommendations on participant fees and other matters

affecting the long-term solvency of the pool. At 30 CFR 914.16(h)(2),

we required Indiana to recalculate the performance bonds for all

existing bond pool members and, if indicated, require the submission of

additional Phase I performance bond. In response to these requirements,

Indiana submitted an Actuarial Study Final Report dated June 1992

(Administrative Record No. IND-1124) and completed the bond

recalculations. In 1994, we conducted a review of the Indiana bond

pool, including bond pool operation, solvency, bond adjustments, and

bond replacements. On page 11 of the October 14, 1994, annual report

for Indiana (Administrative Record No. IND-1640), we reported that

Indiana operated the bond pool consistent with the assumptions used in

the actuarial study and that the bond pool was solvent. We also found

that Indiana conducted bond evaluation and made bond adjustments as

needed. Therefore, we are taking this opportunity to remove the

requirements codified at 30 CFR 914.16(h)(1) and (h)(2).

IV. Summary and Disposition of Comments

Public Comments

We requested public comments on the proposed amendment, but did not

receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendment from various Federal agencies with an actual or potential

interest in the Indiana program (Administrative Record No. IND-1638).

By letter dated April 15, 1999 (Administrative Record No. IND-

1642), the Fish and Wildlife Service (FWS) commented about Indiana's

proposed new provision at 310 IAC 12-3-48(a)(3). This new provision

concerns the detailed description of the proposed land use in the

reclamation plan. It requires the applicant to include an explanation

of the consideration given to making all of the proposed surface mining

activities consistent with surface owner plans and applicable state and

local land use plans and programs.

The FWS commented that it seems inappropriate for the State to pass

a regulation requiring changes in its coal regulatory program before

OSM has reviewed and approved the changes.

The Indiana Surface Coal Mining and Reclamation Act at Indiana Code

(IC) 14-34-2-4(b) allows Indiana to submit a formal amendment to OSM

only after the provisions of the amendment have been approved by the

governor or have become law. We approved IC 14-34-2-4(b) on April 10,

1996 (61 FR 15891), after finding that neither SMCRA nor the Federal

regulations contain specific requirements regarding the administrative

or legislative procedures in the State for rulemaking. However, the

Federal regulation at 30 CFR 732.17(g) requires States to submit to OSM

as an amendment any proposed changes to laws or regulations of an

approved State program. It also specifies that these laws or

regulations must not take effect for purposes of a State program until

approved by OSM.

In the March 1, 1999, Indiana Register (22 IR 1941), Indiana

published a final rule notice of the proposed changes to the Indiana

program being considered by OSM in this final rule. The Indiana final

rule notice specified that the amendments to 310 IAC 12-3 will not

become effective until the Indiana Department of Natural Resources

receives notice of approval from OSM and publishes notice of that

approval in the Indiana Register. Therefore, even though the Governor

of Indiana approved the changes to 310 IAC 12-3-48 and the changes were

published as final in the Indiana Register, they will not become

effective until approved by OSM.

The FWS also commented that a balance must be maintained between

consideration of the wishes of surface land owners and local planning

entities and the need to adhere to the environmental protection

requirements of SMCRA and other Federal and State environmental laws

and regulations. The FWS recommended that in situations where those

laws and regulations take precedent over local plans and preferences,

the ``consideration'' should include an explanation of why the conflict

occurred, along with a brief explanation of the purpose and

requirements of the relevant laws and regulations.

As discussed in Finding 2, Indiana's new provision at 310 IAC 12-3-

48(a)(3) is substantively the same as the counterpart Federal

regulation provision at 30 CFR 780.23(b)(3). However, we did provide

the above comment and recommendation to Indiana for its consideration

when implementing the new provision.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written

agreement from the EPA for those provisions of the program amendment

that relate to air or water quality standards issued 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, we did not ask the EPA to agree on the amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendment from the EPA (Administrative Record No. IND-1638). By letter

dated April 26, 1999, EPA stated that it had no comments to offer (IND-

1646).

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from

the SHPO and ACHP on amendments that may have an effect on historic

properties. On March 17, 1999, we requested comments on Indiana's

amendment (Administrative Record No. IND-1638), but neither responded

to our request.

V. Director's Decision

Based on the above findings, we approve the amendment as sent to us

by Indiana on March 8, 1999.

To implement this decision, we are amending the Federal regulations

at 30 CFR Part 914, which codify decisions concerning the Indiana

program. We are making this final rule effective immediately to

expedite the State program amendment process and to encourage Indiana

to bring its program into conformity with the Federal standards. SMCRA

requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866

The Office of Management and Budget (OMB) exempts this rule from

review under Executive Order 12866 (Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior conducted the reviews required by

section 3 of Executive Order 12988 (Civil Justice Reform) and

determined that, to the extent allowed by law, this rule meets the

applicable standards of

[[Page 31693]]

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 State regulatory programs and program amendments 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

This rule does not require an environmental impact statement since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on 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. Therefore, this rule will ensure that existing requirements

previously published 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 under 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 26, 1999.

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 8, 1999................. June 14, 1999.... 310 IAC 12-3-

31(a)(3), (c); 12-3-

48(a)(3); 12-3-

69(a)(3), (c)(3),

(d); 12-3-106(a)(8)

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Sec. 914.16 [Amended]

3. Section 914.16 is amended by removing and reserving paragraph

(h).

[FR Doc. 99-15028 Filed 6-11-99; 8:45 am]

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