# Indiana Regulatory Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A99-15028 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** June 14, 1999 - **Citation:** 64 FR 31691 ## Text 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. ----------------------------------------------------------------------- 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. * * * * * ------------------------------------------------------------------------ Original amendment submission Date of final date publication Citation/description ------------------------------------------------------------------------ * * * * * * * 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) ------------------------------------------------------------------------ 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] BILLING CODE 4310-05-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-15028. Public record. Not legal advice.