[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14634]


[[Page Unknown]]

[Federal Register: June 16, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

 

Indiana Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is announcing the approval of a proposed program amendment 
to the Indiana permanent regulatory program (hereinafter referred to as 
the Indiana program) under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA). The amendment ( Program Amendment 93-5) consists 
of changes to the Indiana Administrative Code (IAC) rules at 310 IAC 
12. The proposed amendment pertains to definitions of terms used in the 
Indiana program. The amendment is intended to revise the Indiana 
program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: June 16, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Indianapolis Field Office, Office of Surface Mining Reclamation and 
Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania 
Street, room 301, Indianapolis, IN 46204, Telephone (317 226-6166.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program.
II. Submission of 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 Indiana program was made effective by the 
conditional approval of the Secretary of the Interior. Information 
pertinent to general background on the Indiana program, including the 
Secretary's findings, the disposition of comments, and a detailed 
explanation of the conditions of approval of the Indiana program can be 
found in the July 26, 1982, Federal Register (47 FR 32071). Subsequent 
actions concerning the conditions of approval and program amendments 
are identified at 30 CFR 914.10, 914.15, and 914.16.

II. Submission of the Amendment

    By letter dated July 2, 1993 (Administrative Record Number IND-
1272), the Indiana Department of Natural Resources (IDNR) submitted 
proposed program amendment number 93-5. Program amendment 93-5 consists 
of proposed changes to the Indiana program definitions at 310 IAC 12-
0.5.
    OSM announced receipt of the proposed amendment in the August 5, 
1993, Federal Register (58 FR 41669), and, in the same notice, opened 
the public comment period and provided opportunity for a public hearing 
on the adequacy of the proposed amendment. The comment period closed on 
September 7, 1993. The scheduled public hearing was not held as no one 
requested an opportunity to provide testimony.

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 to the Indiana program. Revisions not specifically 
discussed below concern nonsubstantive wording changes, or revised 
cross-references and paragraph notations to reflect organizational 
changes resulting from this amendment.

A. Revisions to Indiana's Rules That Are Substantively Identical to the 
Corresponding Federal Regulations

----------------------------------------------------------------------------------------------------------------
                   State regulation                                   Subject                Federal counterpart
----------------------------------------------------------------------------------------------------------------
310 IAC 12-0.5-23......................................  Coal Mine Waste..................  30 CFR 701.5        
310 IAC 12-0.5-55......................................  Half-Shrub.......................  30 CFR 701.5        
310 IAC 12-0.5-64......................................  Impounding Structure.............  30 CFR 701.5        
310 IAC 12-0.5-104.....................................  Reference Area...................  30 CFR 701.5        
----------------------------------------------------------------------------------------------------------------

    Because the above proposed revisions are identical in meaning to 
the corresponding Federal regulations, the Director finds that 
Indiana's proposed rules are no less effective than the Federal 
regulations.

B. Revisions to Indiana's Rules That Are Not Substantively Identical to 
the Corresponding Federal Regulations

1. 310 IAC 12-0.5-6  Affected Area
    In the introductory paragraph, Indiana has deleted the word 
``each'' and added the word ``any'' in its place. With this change, 
Indiana has clarified that ``affected area'' means any one or more of 
the specified examples at subsection 6 (1) through (7). The Director 
finds that the proposed change is substantively identical to the 
counterpart Federal regulations at 30 CFR 701.5 concerning the 
definition of ``affected area.'' The Director notes that the Indiana 
definition of ``affected area'' continues to be the subject of a 
required program amendment codified at 30 CFR 914.16(n) (see 58 FR 
43260, August 16, 1993).
2. 310 IAC 12-0.5-53  Ground Cover
    The term ground cover is defined to mean the area of ground which 
is covered by the combined aerial parts of vegetation and the litter 
that is produced naturally onsite, expressed as percentage of the total 
area of measurement. At least 95 percent of the species present must be 
species listed in the revegetation plan.
    The first sentence of the proposed definition is substantively 
identical to the Federal definition of ``ground cover'' at 30 CFR 
701.5. Indiana added the second sentence to establish a standard 
guideline for all to follow. The Director finds that the second 
sentence is not inconsistent with SMCRA and the Federal regulations.
3. 310 IAC 12-0.5-139  Valid Existing Rights (VER)
    Indiana has proposed the following language for the definition of 
VER:
    (a) Valid existing rights means, for the purposes of 310 IAC 12-1-
1, 310 IAC 12-2-1, and 310 IAC 12-2-5 the following:
    (1) Except for haul roads:
    (A) Those property rights in existence on August 3, 1977, that were 
created by a legally binding conveyance, lease, deed, contract, or 
other document which authorized the applicant to conduct surface coal 
mining operations; and
    (B) The person proposing to conduct surface coal mining operations 
on such lands:
    (i) Had been validly issued or exercised good faith effort to 
obtain, on or before August 3, 1977, all state and federal permits 
necessary to conduct operations on those lands;
    (ii) Can demonstrate to the director that the coal is both needed 
for and immediately adjacent to, an ongoing surface mining operation 
for which all permits were obtained prior to August 3, 1977; or
    (iii) Can demonstrate that the operation was in existence or 
operation at the time an area became protected under IC 13-4.1-14-1 or 
at the time of the coming into existence, within the prohibited 
distance of a structure, road, cemetery, or other activity listed in IC 
13-4.1-14-1.
    (2) For haul roads:
    (A) A recorded right-of-way, recorded easement, or a permit for a 
coal haul road recorded as of August 3, 1977;
    (B) Any other road in existence as of August 3, 1977; or
    (C) Any haul road that was in existence or operating at the time an 
area became protected under IC 13-4.1-14-1, or at the time of the 
coming into existence, within the prohibited distance of a structure, 
road, cemetery, or other activity listed in IC 13-4.1-14-1.
    (b) The interpretation of the terms of a document used to establish 
a valid existing right is based upon the common law concerning the 
interpretation of documents conveying mineral rights. If there is no 
applicable common law, the interpretation is based upon the following:
    (1) The usage and custom at the time and place where a document 
came into existence.
    (2) A showing by the applicant that the parties to the document 
contemplated the right to conduct the same underground or surface 
activities for which the applicant claims a valid existing right.
    (c) ``Valid existing rights'' does not mean the mere expectation of 
a right to conduct surface coal mining operations or the right to 
conduct underground coal mining. Examples of rights which alone do not 
constitute valid existing rights include, but are not limited to, coal 
exploration permits or licenses, applications or bids for leases, or 
where a person has only applied for a federal or state permit.
    (d) If an area comes under the protection of IC 13-4.1-14-1 after 
August 3, 1977, valid existing rights are present if a validly 
authorized surface coal mining operation exists on that area on the 
date the protection comes into existence.
    The Federal definition of VER at 30 CFR 761.5 has been affected by 
judicial decision and parts have been suspended by OSM (see 51 FR 
41954, November 20, 1986). Specifically, 30 CFR 761.5 paragraphs (a) 
and (c) are suspended, and subparagraph (d)(2) is suspended insofar as 
it incorporates the takings test of suspended paragraph (a). 
Additionally, OSM has proposed that the Federal VER definition be 
amended (see 56 FR 33152, July 18, 1991).
    In the November 20, 1986, Federal Register notice which suspended 
30 CFR 761.5(a), OSM stated that the suspension of 30 CFR 761.5(a) has 
the effect of undoing that provision and leaving in its place the VER 
test in use before the suspended language was promulgated (the 1979 
test) (51 FR 41954). That 1979 test consists of language approved on 
March 13, 1979 (44 FR 15342). A suspension and interpretation of the 
1979 test was published in the August 4, 1980, Federal Register (45 FR 
51547). This suspension resulted from judicial review of the 1979 test, 
wherein the court remanded to the Secretary that portion of the 1979 
test which required the property owner to have obtained all permits 
necessary to mine (``all permits'' test, 30 CFR 761.5(a)(2)(i)). [In 
Re: Permanent Surface Mining Regulation Litigation, No. 79-1144 (D.D.C. 
1980)]. Specifically, the court indicated that a good faith attempt to 
obtain all permits before the August 3, 1977, cut-off date should 
suffice for meeting the ``all permits'' test. In Re: Permanent (I), 
Mem. op. at 20. To comply with the court's 1980 opinion, OSM suspended 
the definition only insofar as it required that to establish VER, all 
permits must have been obtained prior to August 3, 1977. (45 FR 51547, 
51548, August 4, 1980)
    The November 20, 1986, notice of suspension restated OSM's position 
that, pending further rulemaking, OSM would interpret the regulation as 
including the court's suggestion that a good faith effort to obtain all 
permits would establish VER. Consequently, in Federal program States 
and on Indian lands, OSM will make VER determinations on a case-by-case 
basis, and will consider property rights in existence on August 3, 
1977, the owner of which by that date had made a good faith effort to 
obtain all permits, as one class of circumstances which would 
invariably entitle the property owner to VER. This is referred to as 
the 1980 test. VER would also exist when there are property rights in 
existence on August 3, 1977, the owner of which can demonstrate that 
the coal is both needed for and immediately adjacent to a mining 
operation in existence prior to August 3, 1977 (51 FR 41954, 41955).
    Indiana's proposed VER language at subsection 139(a)(1)(A) and 
(B)(i) and (ii) is substantively identical to the two classes of VER 
contained in the 1979 rule, at former 30 CFR 761.5(a)(1) and (2). 
Because these portions of the 1979 rule, including the ``good faith, 
all permits'' interpretation of the ``all-permits test'' contained in 
former 30 CFR 761.5(a)(2)(i) have been upheld by the court, the 
Director is approving the proposed language at subsection 139(a)(1)(A) 
and (B)(i) and (ii).
    The proposed language at subdivision 139(a)(1)(B)(iii) is 
substantively identical to the Federal language at 30 CFR 761.5(d)(1). 
The Director notes, however, that the proposed language at subdivision 
139(a)(1)(B)(iii) duplicates the intent of the proposed language at 
subdivision 139(d). In response to a comment from OSM about this 
duplication, Indiana stated the duplicative language at subdivision 
139(a)(1)(B)(iii) will be deleted at the next available opportunity. 
The Director agrees that, for clarity, the duplicative language should 
be removed at Indiana's earliest opportunity. The Director finds that 
the proposed language at subdivision 139(A)(1)(B)(iii), while 
duplicative, is no less effective than the Federal regulations.
    The Director finds the proposed provisions for haulroads at 
subdivisions 139(a)(2) (A) and (B) are substantively identical to and 
no less effective than the counterpart Federal regulations at 30 CFR 
761.5(b) (1) and (2). The proposed provision at subdivision 
139(a)(2)(C) does not have a direct Federal counterpart. The Director 
finds the Indiana language to be consistent with the Federal provision 
at 30 CFR 761.5(d)(1) which provides for VER if, on the date an area 
comes under protection pursuant to section 522(e) of SMCRA, a validly 
authorized surface coal mining operation exists on that area. The 
Director is, therefore, approving the proposed language at subdivision 
139(a)(2).
    The proposed Indiana language at subdivisions 139(b) and (b)(1) is 
similar to the counterpart Federal language at 30 CFR 761.5(e). The 
Federal language, however, provides that the interpretation of the 
terms of the document relied upon to establish the VER shall be based 
on either applicable State statutory or case law concerning 
interpretation of documents conveying mineral rights. Also, the Federal 
language provides that where no applicable State law exists, the 
interpretation of the terms of the document relied upon to establish 
VER shall be based upon the usage and custom at the time and place that 
it came into existence. The counterpart Indiana language at subdivision 
139(b) is silent concerning applicable State statutory law. The 
proposed language only provides that if there is no applicable common 
law the provisions at subdivisions 139(b) (1) and (2) apply. Therefore, 
the Director finds the proposed language at subdivision 139(b) no less 
effective than the counterpart Federal regulations at 30 CFR 761.5(e) 
except to the extent that the proposed Indiana rule is silent 
concerning the applicability of State statutory law. In addition, the 
Director is requiring that Indiana further amend 310 IAC 12-0.5-139(b) 
to provide that the interpretation of the terms of the document used to 
establish a valid existing right shall be based either upon applicable 
State statutory or case law concerning interpretation of documents 
conveying mineral rights, or where no applicable State statutory or 
common law exists, the interpretation is based upon the provisions at 
subdivisions 139(b) (1) and (2).
    Proposed subdivision 139(b)(2), concerning a required showing by 
the applicant that the parties to the document contemplated the right 
to conduct the same mining activities for which the applicant claims 
VER, has no direct Federal counterpart.
    The proposed language, however, is not inconsistent with the 
Federal requirements contained in the 1979 VER rule, at former 30 CFR 
761.5(c) and is, therefore, approved.
    Proposed subsection 139(c) has no direct Federal counterpart. The 
Director finds the proposed language to be a valuable clarification of 
VER and not inconsistent with SMCRA and the Federal VER regulations. In 
addition, the language is substantively identical to the language 
contained in the 1979 VER rule at former 30 CFR 761.5(d). Therefore, 
proposed subsection 139(c) is approved.
    Proposed subsection 139(d) is substantively identical to the 
counterpart Federal regulations at 30 CFR 761.5(d)(1) and is, 
therefore, approved.
    The Director finds the proposed definition of VER, except as 
discussed above, to be consistent with an no less effective than the 
Federal regulations at 30 CFR 761.5 and the 1980 test (the 1979 VER 
rule with the ``good faith, all permits test'' interpretation) as 
discussed in the November 20, 1986, Federal Register (51 FR 41954).

C. Revisions to Indiana's Regulations With No Corresponding Federal 
Regulations

1. 310 IAC 12-0.5-72  Litter
    The term litter is defined to mean the detached recognizable 
portions of the plants under evaluation that cover the ground surface. 
The Federal regulations use the term litter in definition of ground 
cover, but a Federal definition of the term litter is not provided. In 
its submittal of this amendment, Indiana stated that its definition of 
the term litter is based on the terms litter and ``crop residue found 
in the ``Resource Conservation Glossary,'' Third edition, Soil 
Conservation Society of America, 1982, page 188, and the needs and 
conditions of the Indiana program. The Director finds the proposed 
definition to be consistent with and no less effective than the Federal 
use of the term litter as it appears in the definition of ``ground 
cover'' at 30 CFR 701.5.
2. 310 IAC 12-0.5-111  Shelter Belt
    This term is defined to mean an area used for protection from wind 
or snow and which is subject to proof-of-productivity standards for 
fish and wildlife habitat. In its submittal of this definition, Indiana 
stated that its definition of the term shelter belt is modeled after 
the definition of the same term as found in the ``Resource Conservation 
Glossary,'' Third edition, Soil Conservation Society of America, 1982, 
page 145. There is no direct Federal counterpart to this definition. 
However, the Federal regulations at 30 CFR 816/817.116(b)(3) use the 
term ``shelter belts'' in the regulations for the standards for success 
for postmining land use of fish and wildlife habitat. The Director 
finds the proposed definition to be consistent with and no less 
effective than the Federal use of the term ``shelter belts'' at 30 CFR 
816/817.116(b)(3).
3. 310 IAC 12-0.5-116  Soil Productivity
    This term is defined to mean the capacity of a soil for producing a 
specified plant or sequence of plants under a physically defined set of 
management practices. In its submittal of this definition, Indiana 
stated that its definition of the term ``soil productivity'' is modeled 
after the definition of the same term as found in the ``Resource 
Conservation Glossary,'' Third edition, Soil Conservation Society of 
America, 1982, page 159. There is no direct Federal counterpart to this 
definition. However, the Federal regulations at 30 CFR 823.15 use the 
term soil productivity in the regulations on prime farmland 
revegetation and restoration. The Director finds the proposed 
definition to be consistent with the Federal use of the term ``soil 
productivity'' at 30 CFR 823.15.

IV. Summary and Disposition of Comments

Agency Comments

    Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), 
comments were solicited from various interested Federal agencies. No 
agency comments were received on the proposed amendments.

Public Comments

    The public comment period and opportunity to request a public 
hearing was announced in the August 5, 1993, Federal Register (58 FR 
41669). The comment period closed on September 7, 1993. No comments 
were received during the comment period, and no one requested an 
opportunity to testify at the scheduled public hearing so no hearing 
was held.

V. Director's Decision

    Based on the above findings, and except as noted below, the 
Director is approving Indiana's proposed amendment 93-5 as submitted by 
Indiana on July 2, 1993. As discussed in Finding B-3, the Director is 
approving 310 IAC 12-0.5-139(b) except to the extent that the proposed 
language is silent concerning the applicability of State statutory law. 
In addition, the Director is requiring that Indiana further amend 310 
IAC 12-0.5-139(b) to provide that the interpretation of the terms of 
the document used to establish a valid existing right shall be based 
either upon applicable State statutory or case law concerning 
interpretation of documents conveying mineral rights, or where no 
applicable State statutory or common law exists, the interpretation is 
based upon the provisions at subdivisions 139(b)(1) and (2).
    The Federal regulations at 30 CFR 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 the State 
to conform its program with the Federal standards without delay. 
Consistency of State and Federal standards is required by SMCRA.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In his 
oversight of the Indiana program, the Director will recognize only the 
statutes, regulations and other materials approved by him, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by Indiana of only such 
provisions.

Environmental Protection Agency (EPA) Concurrence

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the Environmental 
Protection Agency (EPA) with respect to any provisions of a State 
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.). The Director 
has determined that this amendment contains no provisions in these 
categories and that EPA's concurrence is not required.

VI. Procedural Determinations

Executive Order 12866

    This final rule is exempted from review by the Office of Management 
and Budget under Executive Order 12866.

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 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 the Office of Management and Budget 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 
counterpart 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. Hence, 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 counterpart Federal regulations.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 9, 1994.
Robert J. Biggi,
Acting Assistant Director, Eastern Support Center.

    For the reasons set forth in the preamble, title 30, chapter VII, 
subchapter T of the Code of Federal Regulations 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. 30 CFR 914.15, is amended by adding a new paragraph (zz) to read 
as follows:


Sec. 914.15  Approval of regulatory program amendments.

* * * * *
    (zz) The following amendment (Program Amendment Number 93-5) 
submitted to OSM on July 2, 1993, is approved, except as noted below, 
effective June 16, 1994: Definitions to the Indiana program at 310 IAC 
12-0.5-6 concerning affected area; 310 IAC 12-0.5-23 concerning coal 
mine waste; 310 IAC 12-0.5-53 concerning ground cover; 310 IAC 12-0.5-
55 concerning half-shrub; 310 IAC 12-0.5-64 concerning impounding 
structure; 310 IAC 12-0.5-72 concerning litter; 310 IAC 12-0.5-104 
concerning reference area; 310 IAC 12-0.5-111 concerning shelter belt; 
310 IAC 12-0.5-116 concerning soil productivity; and 310 IAC 12-0.5-139 
concerning valid existing rights except to the extent that subdivision 
139(b) is silent concerning the applicability of State statutory law.

    3. In section 914.16, paragraph (ee) is added to read as follows:


Sec. 914.16  Required program amendments.

* * * * *
    (ee) By July 1, 1994, Indiana shall amend 310 IAC 12-05.-139(b) to 
provide that the interpretation of the terms of the document used to 
establish a valid existing right shall be based either upon applicable 
State statutory or case law concerning interpretation of documents 
conveying mineral rights, or where no applicable State statutory or 
common law exists, the interpretation is based upon the provisions at 
subdivisions 139(b) (1) and (2).

[FR Doc. 94-14634 Filed 6-15-94; 8:45 am]
BILLING CODE 4310-05-M