[Federal Register Volume 59, Number 238 (Tuesday, December 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30506]


[[Page Unknown]]

[Federal Register: December 13, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[IN-116-FOR; Amendment 94-3]

 

Indiana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with an exception, a proposed 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 program amendment consists of revisions to 
Indiana's Surface Coal Mining and Reclamation Rules concerning 
performance standards for restoring soil productivity for surface coal 
mining and reclamation operations under IC 13-4.1. The amendment is 
intended to revise the Indiana program to be consistent with SMCRA and 
the corresponding Federal regulations.

EFFECTIVE DATE: December 13, 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 the 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 the 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 32107). 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 January 4, 1993 (Administrative Record Number IND-
1193), Indiana submitted a proposed amendment (#93-1) intended to 
address the required program amendments concerning revegetation at 30 
CFR 914.16 (i), (j), (k), (l), and (m). See 57 FR 41869 (September 14, 
1992), and 57 FR 22653 (May 29, 1992) for background on these required 
amendments. The amendments submitted on January 4, 1993, were reviewed 
and approved by the Director on August 2, 1993 (58 FR 41039).
    By letter dated August 11, 1994 (Administrative Record Number IND-
1392), Indiana submitted formal program amendment #94-3. The proposed 
program amendment concerns the performance standards for restoring soil 
productivity for surface coal mining and reclamation operations under 
IC 13-4.1. In its submittal of this amendment, Indiana stated that all 
of the rules, except 310 IAC 12-4-16, were submitted in a previous 
package (amendment #93-1) and approved by OSM August 2, 1993. In 
addition, 310 IAC 12-5-145(c), which was approved as part of amendment 
#93-1 has been deleted and does not appear in this submittal. Indiana 
stated that as a result of ongoing Federal litigation over the language 
of the previously-submitted subsection (c) of 310 IAC 12-5-145, IAC 12-
5-145(c) will not be resubmitted.
    With amendment #94-3, only those provisions which differ from the 
amendments approved by OSM in the August 2, 1993, Federal Register 
notice were considered by OSM to be amendments subject to public review 
and comment in the current rulemaking process.
    OSM announced receipt of the proposed amendment in the September 
16, 1994, Federal Register (59 FR 47574), 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 October 17, 1994.

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.

1. 310 IAC 12-4-16  Performance Bond Release; Requirements

    Subsection 16(c)(3)(A) is amended by deleting the word ``or'' and 
replacing that word with ``and.'' As amended, subsection 16(c)(3)(A) 
provides that Phase III bond may be released only after: (A) the 
operator has successfully completed all surface coal mining and 
reclamation activities required in IC 13-4.1, 310 IAC 12, ``and'' the 
permit. The Director finds this change to be no less stringent than 
SMCRA at sections 509(a) and 519(c)(3), and no less effective than the 
Federal regulations at 30 CFR 800.40(c)(3).

2. 310 IAC 12-5-145  Prime Farmland; Special Performance Standards

    Indiana has deleted subsection 145(c) which was approved by OSM on 
August 2, 1993 (58 FR 41039). Deleted subsection 145(c) contained the 
following language: ``Soil reconstruction shall be carried out in 
accordance with the specifications of the Soil Conservation Service 
(SCS) of the United States Department of Agriculture establishing prime 
farmland soil reconstruction specifications for Indiana.'' In its 
submittal of this amendment Indiana tated that the language quoted 
above was omitted because of ongoing litigation concerning the language 
of subsection 145(c). The litigation which Indiana referred to above is 
Indiana Coal Council, Inc. vs. Babbitt, No. IP93-1328-C (S.D. Ind. 
filed October 1, 1993).
    The Federal regulations at 30 CFR 823.4(b) provide that the 
regulatory authority within each State shall use the soil-
reconstruction specifications established by the SCS to carry out the 
State's responsibilities concerning prime farmland. Prior to the #93-1 
program amendment Indiana had no counterpart to the Federal regulations 
at 30 CFR 823.4(b). Indiana added a counterpart to 30 CFR 823.4(b) at 
310 IAC 12-5-145(c) in amendment #93-1, and OSM approved the addition. 
In the #94-3 amendment, Indiana has removed the counterpart to 30 CFR 
823.4(b), due to the lawsuit cited above.
    The lawsuit cited above involves the following. The U.S. District 
Court for the District of Columbia has held that the SCS's 
specifications for prime farmland soil reconstruction must be 
promulgated as ``rules'' under the Federal Administrative Procedures 
Act, 5 U.S.C. 551 et seq., and must be subject to public comment prior 
to becoming effective. In re: Permanent Surface Mining Regulation 
Litigation II, No. 79-1144 (D.D.C. October 1, 1984), slip. Op. pp. 23-
24. The Indiana Coal Council, Inc. (ICC) contends that an Indiana 
counterpart to 30 CFR 823.4(b) should not be approved by OSM until 
after the SCS has complied with the requirement to subject its 
``specifications'' to public comment.
    OSM had required that Indiana promulgate a regulation addressing 
the requirements of 30 CFR 823.4(b). (57 FR 41873, September 14, 1992). 
When Indiana proposed 310 IAC 12-5-145(c) as the counterpart to 30 CFR 
823.4(b), OSM removed the required amendment at 30 CFR 914.16(l). (58 
FR 41042, August 2, 1993.) Since Indiana has now deleted 310 IAC 12-5-
145(c), the State's program again lacks a counterpart to 30 CFR 
823.4(b). Therefore, the Director finds that the deletion of 310 IAC 
12-5-145(c) renders the Indiana program less effective than the Federal 
regulations. Consequently, the Director is requiring that Indiana amend 
its program to include a counterpart to 30 CFR 823.4(b) or to otherwise 
require that any prime farmland soil reconstruction specifications 
promulgated as rules for the State of Indiana by the SCS be 
incorporated by reference into the Indiana program.

IV. Summary and Disposition of Comments

Federal 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 
comments were received.

Public Comments

    The public comment period and opportunity to request a public 
hearing was announced in the September 16, 1994, Federal Register (59 
FR 47574). The comment period closed on October 17, 1994. No one 
commented and no one requested an opportunity to testify at the 
scheduled public hearing so no hearing was held.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the 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.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA. EPA responded by letter dated September 
27, 1994 (Administrative Record Number IND-1402). In that letter, the 
EPA stated that it had no comments on the proposed amendment.

V. Director's Decision

    Based on the findings above, the Director is approving, except as 
noted herein, Indiana's program amendment concerning performance 
standards for restoring soil productivity submitted by Indiana on 
August 11, 1994. As discussed in Finding 2, the Director has determined 
that the deletion of 310 IAC 12-5-145(c) renders the Indiana program 
less effective than the Federal regulations. The Director is requiring 
that Indiana amend its program to include a counterpart to 30 CFR 
823.4(b) or to otherwise require that any prime farmland soil 
reconstruction specifications promulgated as rules for the State of 
Indiana by the SCS be incorporated by reference into the Indiana 
program.
    The Federal regulations at 30 CFR Part 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 States to 
bring their programs into conformity with the Federal standards without 
undue 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.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (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 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 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 
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. Accordingly, 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: December 6, 1994.
Tim L. Dieringer,
Acting Assistant Director, Eastern Support Center.

    For the reasons set out 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. In Sec. 914.15, paragraph (ddd) is added to read as follows:


Sec. 914.15  Approval of regulatory program amendments.

* * * * *
    (ddd) The following amendment to the Indiana program as submitted 
to OSM on August 11, 1994, under program amendment #94-3, is approved 
effective December 13, 1994: 310 IAC 12-4-16(c)(3) concerning 
performance bond release.
    3. In Sec. 914.16, paragraph (gg) is added to read as follows:


Sec. 914.16  Required program amendments.

* * * * *
    (gg) By May 31, 1995, Indiana shall amend the Indiana program by 
adding a counterpart to 30 CFR 823.4(b), or by otherwise requiring that 
any prime farmland soil reconstruction specifications promulgated as 
rules by the United States Soil Conservation Service for the State of 
Indiana be incorporated by reference into the Indiana program.

[FR Doc. 94-30506 Filed 12-12-94; 8:45 am]
BILLING CODE 4310-05-M