Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-143-FOR; State Program Amendment No. 98-5]

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 revisions to rules

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concerning revegetation standards for success for nonprime farmland for

surface and underground coal mining and reclamation operations under

Indiana Code (IC) 14-34. Indiana intends to revise its program to be

consistent with the corresponding Federal regulations.

EFFECTIVE DATE: November 22, 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 August 2, 1999 (Administrative Record No. IND-

1664), Indiana sent us an amendment to its program under SMCRA. This

amendment replaces State Program Amendment No. 95-2, which we approved

in the May 30, 1995, Federal Register (60 FR 28069). Indiana sent the

amendment, which amends the Indiana Administrative Code (IAC), at its

own initiative.

We announced receipt of the amendment in the August 16, 1999,

Federal Register (64 FR (44448)). 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 September 25, 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.

A. Withdrawal of Previously Approved Amendment

Indiana notified us in its letter dated July 24, 1997

(Administrative Record No. IND-1670), that the statutory time frame for

approving State Program Amendment No. 95-2 had expired prior to final

approval. We approved this amendment, dated May 3, 1995 (Administrative

Record No. IND-1460), on September 14, 1995 (60 FR 47692). Since

Indiana did not adopt the amendment, we are removing our approval and

amending 30 CFR 914.15 to reflect this decision.

B. 310 IAC 12-5-64.1 (Surface) and 12-5-128.1 (Underground)

Revegetation Standards for Success for Nonprime Farmland

Since the revisions proposed for surface mining at Sec. 12-5-

64.1(c) are identical to those being proposed for underground mining at

Sec. 12-5-128.1(c), they will be combined for ease of discussion. These

subsections provide the standards for success which are to be applied

under the approved postmining land uses.

1. Organizational and Reference Changes

Indiana proposed paragraph notation changes to reflect the

organizational changes made throughout subsections (c). Additionally,

Indiana proposed revisions throughout subsections (c) to correct the

reference to the ``Soil Conservation Service'' to the ``Natural

Resources Conservation Service.''

We find that the organizational and reference changes do not render

the Indiana regulations at 310 IAC 12-5-64.1/128.1 less effective than

the Federal regulations at 30 CFR 816.116/817.116.

2. Redesignations

Indiana proposed to redesignate existing subsections (c)(5),

(c)(6), (c)(7), and (c)(8) as subsections (c)(4), (c)(5), (c)(6), and

(c)(7), respectively. We find that the proposed redesignations do not

render the Indiana regulations at 310 IAC 12-5-64.1/128.1 less

effective than the Federal regulations at 30 CFR 816.116/817.116.

3. Relocation of Existing Provisions

Indiana proposed to delete the provisions at existing subsections

(c)(4) and redesignated subsections (c)(6). These provisions require

that if current Natural Resources Conservation Service predicted yield

by soil map units are used to determine production of living plants,

then the standard for success shall be a weighted average of the

predicted yields for each unmined soil type which existed on the permit

areas at the time the permit was issued. Indiana proposed to relocate

these provisions to existing subsections (c)(3)(B) and redesignated

subsections (c)(5)(B).

Indiana also proposed to delete the provisions at redesignated

subsections (c)(6) which require that once the method for establishing

the standards has been selected, it may not be modified without the

approval of the director of IDNR. Indiana proposed to relocate these

provisions to redesignated subsections (c)(5)(E).

We find that Indiana's relocation of these provisions does not

render the Indiana regulations less effective than the Federal

regulations and are approving the modifications.

4. Subsections (c)(3)(C), Pastureland Production Success Standards

Methodology

Indiana proposed to delete the language in existing subsections

(c)(3)(C) for determining production of living plants on pastureland

and replace it with the following:

(C) A target yield determined by the following formula: Target

Yield = NRCS Target Yield x (CCA/10 Year CA) where: NRCS Target

Yield = the average yield per acre, as predicted by the Natural

Resources Conservation Service, for the crop and the soil map units

being evaluated. The most current yield information at the time of

permit issuance shall be used, and shall be contained in the

appropriate sections of the permit application. CCA = the county

average for the crop for the year being evaluated as reported by the

United States Department of Agriculture crop reporting service, the

Indiana Agricultural Statistics Service. 10 Year CA = the ten (10)

Year Indiana Agricultural Statistics Service county average,

consisting of the year being evaluated and the nine (9) preceding

years.

The Federal regulations at 30 CFR 816/817.116(a)(2) require

standards for success to include criteria representative of unmined

lands in the area being reclaimed to evaluate the appropriate

vegetation parameters of ground cover, production, or stocking. As

discussed in the May 29, 1992, Federal Register (57 FR 22655),

Indiana's average county yield data contains data of yields from

previously mined lands. In letters dated February 26, 1992

(Administrative Record No. IND-1036 and IND-1037), OSM asked Indiana to

clarify the use of this data. In letters dated March 20, 1992

(Administrative Record No. IND-1051 and IND-1052), Indiana stated that

the amount of previously mined acreage

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being farmed is so limited that the inclusion of these yields

essentially has no impact upon the overall yields calculated for the

county average. Indiana also stated that it used the average county

yield data as a weather correction factor applied to predicted soil

mapping unit yields.

In the May 29, 1992, Federal Register (57 FR 22655, finding No.

1.c.), we found that the use of the Indiana average county yield data

as the sole standard for determining success of revegetation would be

less effective than the Federal regulations at 30 CFR 816/

817.116(a)(2). However, we found that the use of Indiana's average

county yield data as a correction factor would not be inconsistent with

the Federal regulations.

The currently proposed methodology is an acceptable way to

calculate production standards for non-prime farmland pastureland. This

method adjusts the weighted production standard based on soil type by

using a factor derived by the county average and an average of the

historical county average. The weighted production standard is already

approved in the Indiana program and the adjustment of this standard by

county average data is reasonable. Thus, we find that the proposed

method for calculating success standards on nonprime farmland pasture

at 310 IAC 12-5-64.1/128.1(c)(3)(C) is no less effective than the

Federal requirements for success standards at 30 CFR 816/817.116(a)(2).

5. Subsections (c)(3)(D) and (c)(5)(D), Other Success Standards

Indiana proposed to add subsections (c)(3)(D) and (c)(5)(D) to

allow other methods approved by the director of the Indiana Department

of Natural Resources (IDNR) to be used in determining success of

production of living plants on revegetated nonprime farmland pasture

land. This language has the same meaning as the language Indiana

deleted at subsections (c)(3)(C) and (c)(5)(C). We previously approved

the provisions at (c)(3)(C) and (c)(5)(C) on May 29, 1992 (57 FR

22655), with the understanding that Indiana will request our approval

of other methods before using them in the Indiana program. By letters

dated March 20, 1992 (Administrative Record No. IND-1051 and IND-1052),

Indiana stated the IDNR will request OSM's approval for other standards

prior to their use in the Indiana program if they vary significantly

from the approved standards. Because the addition of the provisions at

subsections (c)(3)(D) and (c)(5)(D) does not substantially change the

approved Indiana program, we are approving them.

6. Subsections (c)(5)(C), Cropland Production Success Standards

Methodology

At redesignated subsections (c)(5)(C), Indiana proposed to delete

the existing language for determining production of living plants on

cropland and replace it with the following:

(C) A target yield determined by the following formula: Target

Yield = CCA x (NRCSP/NRCSC) where: CCA = the county average for

the crop for the year being evaluated as reported by the United

States Department of Agriculture crop reporting service, the Indiana

Agricultural Statistics Service. NRCSP = the weighted average of the

current Natural Resources Conservation Service predicted yield for

each croppable, unmined soil which existed on the permit at the time

the permit was issued. NRCSC = the weighted average of the current

Natural Resources Conservation Service predicted yield for each

croppable, unmined soil which is shown to exist in the county on the

most current county soil survey. A croppable soil is any soil which

the Natural Resources Conservation Service has defined as being in

capability class I, II, III, or IV.

The Federal regulations at 30 CFR 816/817.116(a)(2) require that

standards for success shall include criteria representative of unmined

lands in the area being reclaimed to evaluate the appropriate

vegetation parameters of ground cover, production, or stocking. The

above discussion in finding No. B.4, pertaining to Indiana's average

county yield data containing data of yields from previously mined lands

is also relevant to this proposed revision. As discussed in finding No.

B.4, we had previously found that the use of Indiana's average county

yield data as a correction factor was not inconsistent with the Federal

regulations.

Indiana's currently proposed methodology would modify the county

average by a factor that uses the NRCS predicted standard for permitted

unmined soils and an NRCS predicted standard that excludes mined land.

Therefore, we are approving the provisions proposed at 310 IAC 12-5-

64.1/128.1(c)(5)(C).

IV. Summary and Disposition of Comments

Public Comments

OSM 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-1665).

By letter dated September 20, 1999, the Mine Safety and Health

Administration (MSHA) responded to our request by stating that the

proposed amendment does not conflict with MSHA regulations or policies

(Administrative Record No. IND-1675).

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-1665). The EPA

did not respond to our request.

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 August 9, 1999, we requested comments on Indiana's

amendment (Administrative Record No. IND-1665), 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 August 2, 1999. We approve the rules that Indiana

proposed with the provision that they be published in identical form to

the rules submitted to and reviewed by OSM and the public.

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.

For reasons discussed in finding III.A., we are also amending 30

CFR Part 914 by removing the approval of an amendment that Indiana

submitted on May 3, 1995.

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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 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 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: November 4, 1999.

Charles E. Sandberg,

Acting 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 removing the entire

entry having the date ``May 3, 1995'' in the ``Original amendment

submission date'' column, and 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 Date of final publication Citation/description

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August 2, 1999.......................... November 22, 1999.................... 310 IAC 12-5-64.1(c) and

128.1(c).

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[FR Doc. 99-30358 Filed 11-19-99; 8:45 am]

BILLING CODE 4310-05-P