[Federal Register Volume 60, Number 199 (Monday, October 16, 1995)]
[Rules and Regulations]
[Pages 53511-53513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25555]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-126-FOR; State Program Amendment No. 95-9]


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 a proposed amendment to the Indiana 
regulatory program (hereinafter referred to as the ``Indiana program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
Indiana proposed additions to the Indiana Administrative Code [IAC] 
rules at 310 IAC 12 pertaining to definition of terms used in the 
Indiana Program. The amendment is intended to revise the Indiana 
program to be consistent with the corresponding Federal regulations and 
to provide additional safeguards.

EFFECTIVE DATE: October 16, 1995.

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, 
Indiana 46204, Telephone (317) 226-6700.

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. Background information on the Indiana 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the July 26, 
1982, Federal Register (47 FR 32107). Subsequent actions concerning the 
conditions of approval and program amendments can be found at 30 CFR 
914.10, 914.15, and 914.16.

II. Submission of the Proposed Amendment

    By letter dated May 11, 1995 (Administrative Record No. IND-1469), 
Indiana submitted a proposed amendment to its program pursuant to 
SMCRA. Indiana submitted the proposed amendment at its own initiative. 
Indiana proposed to add definitions at 310 IAC 12-0.5-2, 12-0.5-14, 12-
0.5-57, 12-0.5-95, 12-0.5-99, and 12-0.5-123. These definitions pertain 
to acid drainage; augmented seeding, fertilization, or irrigation; high 
level management; public building; randomly located; and support 
facility, respectively.
    OSM announced receipt of the proposed amendment in the May 30, 
1995, Federal Register (59 FR 28073), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on June 29, 1995.

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.

A. Revisions to Indiana Regulations That Are Substantively Identical to 
the Corresponding Provisions of the Federal Regulations

------------------------------------------------------------------------
                                                            Federal     
       State regulation               Subject             counterpart   
------------------------------------------------------------------------
310 IAC 12-0.5-2.............  Definition of Acid     30 CFR 701.5      
                                Drainage.                               
310 IAC 12-0.5-95............  Definition of Public   30 CFR 761.5      
                                Building.                               
------------------------------------------------------------------------


[[Page 53512]]

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

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

    1. 310 IAC 12-0.5-14  Augmented Seeding, Fertilization, or 
Irrigation. Indiana proposed to define ``augmented seeding, 
fertilization, or irrigation'' as seeding, fertilizing, or irrigating 
in excess of normal agronomic practices within the region.
    OSM amended the Federal regulations at 30 CFR 816.116(c) and 
817.116(c) on September 7, 1988 (53 FR 34636). These regulations 
provide for regulatory authority approval of ``selective husbandry 
practices.'' OSM, in discussing the approval of selective husbandry 
practices, stated ``these approved practices were allowed to occur 
during the liability period without restarting the five- or ten-year 
period responsibility for successful revegetation provided the practice 
was a `normal conservation practice' and was not augmented seeding, 
fertilizing, irrigation, or other work.'' (Emphasis added.)
    OSM uses the above emphasized language in its regulations at 30 CFR 
816.116(c) and 817.116(c) to make a distinction between normal and 
augmented husbandry practices. Indiana's proposed definition makes a 
similar distinction. Therefore, the Director finds the proposed 
definition at 310 IAC 12-0.5-14 is no less effective than the Federal 
regulation provisions pertaining to normal husbandry practices.
    2. 310 IAC 12-0.5-57  High Level Management. Indiana proposed a 
definition for ``high level management'' as it relates to agronomic 
practices. The definition includes use of cropping systems that help 
maintain the land; the control of erosion through conservation and 
water management practices; use of soil tests for determining proper 
lime and fertilizer application; use of crop residue for protection of 
soil; use of conservation tillage practices where needed; use of crop 
varieties that are adapted to the climate and the soil of the region; 
use of currently accepted management techniques for controlling weeds, 
plant diseases, and harmful insects for the region; and use of surface 
or subsurface drainage systems for wet areas.
    The term ``high level management'' is used in both the Indiana 
regulations and the Federal regulations in the permit application 
content requirements for information pertaining to the productivity of 
prime farmlands prior to mining. The term, as used, does not alter the 
reclamation or productivity requirements for lands to be mined. 
Although OSM chose not to include a definition of high level management 
in its regulations, the Indiana definition includes all of the general 
requirements published by the U.S. Natural Resources Conservation 
Service in its National Soils Handbook and additional management 
practices to aid permit evaluators in reviewing the information 
submitted with a mining permit. Therefore, the Director finds the 
proposed definition at 310 IAC 12-0.5-57 is not inconsistent with the 
requirements of the Federal regulations at 30 CFR 785.17(c).
    3. 310 IAC 12-0.5-99  Randomly Located. Indiana proposed to define 
``randomly located'' as the selection of a location that is 
statistically independent of all previous and future location 
selections.
    The term ``randomly located'' is used by Indiana in its 
revegetation standard regulations to denote the selection of sampling 
locations. OSM's regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
allow each State to establish its own testing procedures within certain 
general guidelines. At a minimum, OSM would require that any testing 
procedure selected by the State be based on valid statistical methods. 
The proposed definition requires that all locations selected must be 
statistically independent of all others. Any method used to actually 
locate positions in the field would have to meet the definition. 
Therefore, the Director finds the definition is consistent with and no 
less effective than 30 CFR 816.116(a)(1) and 817.116(a)(1).
    4. 310 IAC 12-0.5-123  Support Facility. Indiana proposed a 
definition of ``support facility'' that contains the following 
provisions. Subsection (a) relates a support facility to the activities 
identified in 310 IAC 12-0.5-125(1), which defines surface coal mining 
operations, and the area upon which the facility is located. Subsection 
(b) specifies that ``resulting from or incidental to'' connotes an 
element of proximity to the activity. Subsection (c) provides a list of 
support facilities which includes mine buildings, bath houses, coal 
loading and storage facilities, coal crushing and sizing facilities, 
equipment and storage facilities, fan buildings, hoist buildings, 
sheds, shops, and other buildings, facilities used to treat and store 
water for mine consumption, and specific transportation facilities.
    On November 22, 1988, OSM removed its definition of ``support 
facilities'' from 30 CFR 701.5 (53 FR 47378). Indiana has chosen to 
provide additional clarification and guidance to its mine operators by 
adding one to its program. The Director acknowledges that the proposed 
definition will supplement Indiana's regulations at 310 IAC 12-5-71 
pertaining to support facilities and utility installations. OSM noted 
in the November 22, 1988, Federal Register that some State programs 
contain a definition of support facilities, and the Director did not 
require these States to remove them.

    While only two approved State programs contain a definition of 
support facilities, rarely have objections been raised to OSMRE 
concerning the administration of State programs on this issue.

    Based on the above discussion, the Director finds the proposed 
definition at 310 IAC 12-0.5-123 is not inconsistent with the 
requirements of SMCRA and the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. No public comments were 
received and because no one requested an opportunity to speak at a 
public hearing, no hearing was held.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Indiana program. In a letter 
dated June 19, 1995 (Administrative Record No. IND-1490), the U.S. 
Bureau of Mines commented that the definition of acid drainage may not 
include that drainage that would emanate from the surface effects of 
underground mines, either active or abandoned, or from coal processing 
or loading facilities. The definition as proposed is the same as the 
Federal definition in 30 CFR 701.5. Both the Federal and Indiana 
definitions utilize the term ``surface coal mining and reclamation 
operation'' which under both programs include surface mines and 
facilities and the surface effects of underground mines. Therefore the 
concerns raised by the U.S. Bureau of Mines are adequately addressed by 
the Indiana program. The proposed Indiana definition of acid drainage 
will not exempt drainage from any facility or operation regulated under 
SMCRA.

[[Page 53513]]


Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed 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.).
    On May 18, 1995, OSM solicited EPA's concurrence with the proposed 
amendment (Administrative Record No. IND-1482). On June 15, 1995, EPA 
gave its written concurrence, without comment on all of the definitions 
except high level management (Administrative Record No. IND-1489). EPA 
expressed concern with the possible impacts of the language within the 
definition which refers to ``drainage wet areas.'' When OSM explained 
that the definition was used in reference to the management of unmined 
lands for which only information was required under the Indiana 
Program, EPA issued a concurrence for the definition (Administrative 
Record No. IND-1507).

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and ACHP. No comments were received 
from either agency.

V. Director's Decision

    Based on the above findings, the Director is approving the proposed 
amendment as submitted by Indiana on May 11, 1995.
    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. The Federal regulations at 30 CFR 732.17(g) prohibit any 
unilateral changes to approved State programs. In the oversight of the 
Indiana program, the Director will recognize only the statutes, 
regulations, and other materials approved by OSM, 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(20(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. 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 corresponding Federal regulations.

List of Subjects in 30 CFR 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 3, 1995.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating 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. Section 914.15 is amended by adding paragraph (lll) to read as 
follows:


Sec. 914.15  Approval of regulatory program amendments.

* * * * *
    (111) The following rules, as submitted to OSM on May 11, 1995, are 
approved effective October 16, 1995.

310 IAC 12-0.5-2--Definition of acid drainage.
310 IAC 12-0.5-15--Definition of augmented seeding, fertilization, or 
irrigation.
310 IAC 12-0.5-57--Definition of high level management.
310 IAC 12-0.5-95--Definition of public building.
310 IAC 12-0.5-99--Definition of randomly located.
310 IAC 12-0.5-123--Definition of support facility.

[FR Doc. 95-25555 Filed 10-13-95; 8:45 am]
BILLING CODE 4310-05-M