[Federal Register Volume 61, Number 70 (Wednesday, April 10, 1996)]
[Rules and Regulations]
[Pages 15891-15895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8920]



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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-133-FOR; Amendment No. 95-11]


Indiana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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

SUMMARY: OSM is approving, with additional requirements, 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 revisions to the 
Indiana Surface Coal Mining and Reclamation Act (ISCMRA) as enacted by 
the Indiana General Assembly (1995) in House Enrolled Act 1575 (HEA 
1575). The proposed amendment concerns lands eligible for remining, 
responsibilities of the director of Indiana Department of Natural 
Resources (IDNR), and surface and underground tonnage fees. The 
amendment is intended to revise the Indiana program to be consistent 
with SMCRA and to incorporate State initiatives. The proposed revisions 
concerning lands eligible for remining are intended to provide 
incentives for the remining and reclamation of previously mined and 
inadequately reclaimed lands eligible for expenditures under section 
402(g)(4) or 404 of SMCRA as provided for by the Energy Policy Act of 
1992.

EFFECTIVE DATE: April 10, 1996.

FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director, 
Indianapolis Field Office, Office of Surface Mining Reclamation and 
Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania

[[Page 15892]]
Street, Room 301, Indianapolis, Indiana 46204-1521, 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 September 11, 1995 (Administrative Record No. IND-
1509), Indiana submitted a proposed amendment to its program pursuant 
to SMCRA. Indiana submitted the proposed amendment at its own 
initiative. HEA 1575 amends ISCMRA by adding new sections and revising 
existing sections to recodified Indiana Code (IC) 14-8 and 14-34. The 
proposed amendment adds new definitions for lands eligible for remining 
at IC 14-8-2-144.5 and unanticipated event or condition at IC 14-8-2-
285.5; amends recodified IC 14-34-2-4, Responsibilities of the director 
of IDNR; adds IC 14-34-4-8.5, Permit finding concerning an 
unanticipated event or condition on lands eligible for remining; adds 
IC 14-34-4-10.5, Permit application requirement concerning 
unanticipated events or conditions; amends recodified IC 14-34-10-
2(b)(23), Revegetation responsibility periods; amends recodified IC 14-
34-13-1, Reclamation fee requirement for surface coal mining 
operations; amends recodified IC 14-34-13-2, Reclamation fee 
requirement for underground coal mining operations; and amends 
recodified IC 14-34-19-2, Lands and water eligible for reclamation or 
drainage abatement expenditures. The recodification of the current 
provisions of ISCMRA is proposed in Indiana's Program Amendment No. 95-
10, and it is discussed in a separate final rule.
    OSM announced receipt of the proposed amendment in the January 22, 
1996, Federal Register (61 FR 1549), 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 February 21, 1996.

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

1. IC 14-8-2-144.5  Definition of ``Lands Eligible for Remining''

    Indiana proposed a definition at IC 14-8-2-144.5 to define the term 
``lands eligible for remining'' to mean those lands that are eligible 
for funding under IC 14-34-19 or section 402(g)(4) of SMCRA.
    Section 701(34) of SMCRA defines the term ``lands eligible for 
remining'' to mean those lands that would otherwise be eligible for 
expenditures under section 404 or 402(g)(4) of SMCRA. Indiana's statute 
at IC 14-34-19 that is referenced in its definition is the State 
counterpart provision to section 404 of SMCRA in the Federal 
definition. Therefore, the Director finds that Indiana's proposed 
definition of ``lands eligible for remining'' at IC 14-8-2-144.5 is no 
less stringent than the definition at section 701(34) of SMCRA.

2. IC 14-8-2-285.5  Definition of ``Unanticipated Event or Condition''

    Indiana proposed a definition of ``unanticipated event or 
condition'' at IC 14-8-2-285.5 that is substantively identical to the 
Federal definition at section 701(33) of SMCRA. Therefore, the Director 
finds that the proposed definition at IC 14-8-2-285.5 is no less 
stringent than SMCRA.

3. IC 14-34-2-4(a)(7) and (b)  Responsibilities of the Director of IDNR

    Indiana proposed to amend recodified IC 14-34-2-4 [previously IC 
13-4.1-2-2(b)] by adding new paragraph (7) to subsection (a) and adding 
new subsection (b). At IC 14-34-2-4(a)(7) and (b), Indiana is proposing 
to allow the Director of IDNR to submit formal state program amendments 
to OSM only after the amendment has been approved by the governor of 
Indiana or has become law.
    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, the Federal regulation at 30 CFR 732.17(g) 
requires that proposed changes to laws or regulations that make up the 
approved State program be submitted to the Director as an amendment and 
that they shall not take effect for purposes of a State program until 
approved as an amendment. However, neither SMCRA nor the Federal 
regulations contain specific requirements regarding the administrative 
or legislative procedures in the State for rulemaking. Therefore, since 
the Director of IDNR must still submit formal State program amendments 
to OSM, the Director finds the proposed revisions at IC 14-34-2-4(a)(7) 
and (b) do not render the Indiana program less stringent than SMCRA or 
less effective than the Federal regulations.

4. IC 14-34-4-8.5  Permit Findings

    Indiana is proposing that the finding required by IC 14-34-4-
7(a)(6) and prohibition on the issuance of a permit in IC 14-34-4-8 do 
not apply to a violation resulting from an unanticipated event or 
condition at a surface coal mining operation on lands eligible for 
remining under a permit held by the applicant.
    The proposed provision at IC 14-34-4-8.5 is consistent with the 
provisions in section 510(e) of SMCRA, which establishes an exemption 
from the permit blocking provisions of section 510(c) of SMCRA for any 
violation resulting from an unanticipated event or condition occurring 
on a remining site, with two exceptions. First, Indiana did not propose 
a counterpart to SMCRA's limiting language ``after the date of 
enactment of this subsection'' that specified when a violation must 
have occurred to be eligible for the exemption. The permit block 
exemption in section 510(e) of SMCRA applies to violations that 
occurred subsequent to October 24, 1992. Second, Indiana did not limit 
the authority of IC 14-34-4-8.5 to September 30, 2004. Section 510(e) 
of SMCRA specifies that its authority terminates on September 30, 2004. 
The Federal implementing regulation at 30 CFR 773.15(b)(4)(i)(C) 
qualified this termination requirement by specifying that the 
prohibitions do not apply to permits issued before September 30, 2004, 
or any renewals thereof.
    Since IC 14-34-4-8.5 is consistent with the other provisions and 
the intent of section 510(e) of SMCRA, the Director is approving it 
with the requirement that Indiana propose implementing regulations that 
include the two limiting provisions. Indiana is to propose implementing 
regulations consistent

[[Page 15893]]
with the Federal regulation at 30 CFR 773.15(b)(4)(i), as added on 
November 27, 1995 (60 FR 58480), that limits the permit block exemption 
to those violations that occur after October 24, 1992, and to those 
permits issued before September 30, 2004, or any renewals thereof.

5. IC 14-34-4-10.5  Permit Application Requirement for Remining 
Operations

    The proposed statute at IC 14-34-4-10.5 authorizes Indiana to 
require identification of potential problems in a permit application 
for lands eligible for remining. Indiana proposed to add subsection (a) 
to require that an applicant make a good faith effort to identify 
potential problems that may result in an unanticipated event or 
condition in the permit application. Subsection (b) specifies that ``an 
event or condition that arises despite substantial adherence to the 
applicable operation and reclamation plan may be considered 
unanticipated if it was not identified in the application for the 
governing permit.''
    There is no direct counterpart language in section 510(e) of SMCRA. 
However, the Federal regulations at 30 CFR 773.15(b)(4), 773.15(c)(13), 
and 785.25 were developed to implement the ``unanticipated event or 
condition'' provisions of section 510(e) of SMCRA pertaining to permit 
applications for lands eligible for remining. Sections 
773.15(c)(13)(ii) and 785.25(b)(1) contain language similar to IC 14-
34-4-10.5(a) by requiring the permit application to identify potential 
environmental and safety problems related to prior mining activity at 
the site. Therefore, the Director finds that the proposed statute at IC 
14-34-4-10.5 is not inconsistent with SMCRA. However, the Federal 
regulations contain additional requirements not considered in the 
Indiana statute, and he is approving it with the requirement that 
Indiana amend its program to provide implementing regulations 
consistent with the Federal regulations.
    The Director is requiring Indiana to amend its regulations at 310 
IAC 12-3-112 consistent with 30 CFR 773.15(b)(4), pertaining to review 
of violation requirements and with 30 CFR 773.15(c)(13), pertaining to 
written findings for permit application approval, as added on November 
27, 1995 (60 FR 58480). He is also requiring Indiana to amend its 
regulations at 310 IAC 12-3 consistent with 30 CFR 785.25 (a) through 
(c), pertaining to permitting requirements for lands eligible for 
remining, as added on November 27, 1995 (60 FR 58480).

6. IC 14-34-10-2(b)(23)  Revegetation Responsibility Periods

    a. IC 14-34-10-2(b)(23)(A). Indiana proposed to amend recodified IC 
14-34-10-2(b)(23) [previously IC 13-4.1-8-1(20)] by limiting the 
requirement for 5 years of revegetation responsibility to those lands 
not eligible for remining by adding the language ``on lands not 
eligible for remining'' to the existing provision pertaining to a 5-
year responsibility period. This provision was designated subdivision 
(23)(A). Although not specifically stated, the 5-year revegetation 
responsibility period requirement in section 515(20)(A) of SMCRA also 
pertains to lands not eligible for remining. Therefore, the Director 
finds IC 14-34-10-2(b)(23)(A) is no less stringent than section 
515(20)(A) of SMCRA.
    b. IC 14-34-10-2(b)(23)(B). Indiana proposed to add new subdivision 
(23)(B) that allows a 2-year responsibility period for lands eligible 
for remining. Section 515(20)(B) of SMCRA and the amended implementing 
Federal regulations at 30 CFR 816/817.116(c)(2)(ii) also allow a 2-year 
responsibility period for lands eligible for remining. However, section 
510(e) of SMCRA specifies that the authority of section 515(b)(20)(B) 
shall terminate on September 30, 2004. The Federal implementing 
regulations at 30 CFR 816/817.116(c)(2)(ii) qualify this termination 
requirement by specifying permits issued before September 30, 2004, or 
any renewals thereof. The proposed Indiana statute does not contain 
this termination language.
    Since IC 14-34-10-2(b)(23)(B) is consistent with the other 
provision language and the intent of section 515(b)(20)(B) of SMCRA, 
the Director is approving it with the requirement that Indiana propose 
implementing regulations that contain the termination language. Indiana 
is to amend its regulations at 310 IAC 12-4-7, period of liability, by 
proposing provisions consistent with the Federal regulations at 30 CFR 
816/817.116(c)(2)(ii), as added on November 27, 1995 (60 FR 58480), 
pertaining to the 2-year revegetation period of responsibility for 
lands eligible for remining and to the limitation of the provisions to 
permits issued before September 30, 2004, or any renewals thereof.

7. IC 14-34-13-1  Reclamation Fee for Surface Coal Mining Operations 
and IC 14-34-13-2 Reclamation Fee for Underground Coal Mining 
Operations

    Indiana proposed to amend recodified IC 14-34-13 [previously IC 13-
4.1-3-2]. Indiana proposed to limit the provision at IC 14-34-13-1 to 
surface coal mining operations, to change the reclamation fee for 
surface coal mining operations from five and one-half cents per ton of 
coal produced to three cents, and to remove the language which required 
fees to be paid only until July 1, 1995. Indiana proposed to add a new 
provision at IC 14-34-13-2(a) pertaining to reclamation fees for 
underground coal mining operations with support facilities located 
within Indiana and to change the reclamation fee for these operations 
from five and one-half cents per ton of coal produced to two cents. 
Indiana also proposed to remove the language which required fees to be 
paid only until July 1, 1995, from its existing provision in IC 14-34-
13-2 and to redesignate it as subsection (b). This provision requires 
underground coal mining operations that have no support facilities 
located within Indiana but produce coal from reserves located within 
Indiana to pay a reclamation fee of one cent per ton of coal produced. 
The fees from surface and underground coal mining operations are 
deposited into the natural resources reclamation division fund for 
administration of the Indiana program.
    Section 507(a) of SMCRA provides that an application for a surface 
coal mining and reclamation permit shall be accompanied by a fee 
determined by the regulatory authority. Such fee may be less than, but 
shall not exceed the actual or anticipated cost of reviewing, 
administering, and enforcing the permit. The regulatory authority may 
develop procedures to allow the fee to be paid over the term of the 
permit. After a review of the projected income from the proposed fees, 
the Director finds that the income will be less than the anticipated 
cost of reviewing, administering, and enforcing permits under the 
Indiana program. Therefore, the proposed changes in Indiana's 
provisions at IC 14-34-13-1 and IC 14-34-13-2 pertaining to permit fee 
amounts do not render these previously approved sections less stringent 
than section 507(a) of SMCRA.

8. IC 14-34-19-2  Eligibility of Lands for Reclamation and Restoration 
Under the Abandoned Mine Land Program

    Indiana proposed to amend recodified IC 14-34-19-2 [previously IC 
13-4.1-15-2] by designating the existing language as subsection (a) and 
by adding new subsection (b). New subsection (b) specifies that 
``surface coal mining operations on lands eligible for remining do not 
affect the eligibility of the lands for reclamation and restoration 
under this chapter after the

[[Page 15894]]
release of the bond or deposit for the operation under IC 14-34-6.''
    The language in the new provision at IC 14-34-19-2(b) is 
substantively identical to the Federal counterpart provision in section 
404 of SMCRA. Therefore, the Director finds the proposed revisions to 
IC 14-34-19-2 do not render it less stringent than section 404 of 
SMCRA, and he is approving them.

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 (Administrative 
Record No. IND-1514). No comments were received.

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.). 
None of the revisions that Indiana proposed to make in this amendment 
pertain to air or water quality standards. Therefore, OSM did not 
request EPA's concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (Administrative Record No. IND-1514). EPA 
did not respond.

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

    Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit 
comments on proposed amendments which may have an effect on historic 
properties from the SHPO and ACHP. OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (Administrative Record No. 
IND-1514). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves, with additional 
requirements, the proposed amendment as submitted by Indiana on 
September 11, 1995.
    The Director approves, as discussed in: finding No. 1, IC 14-8-2-
144.5, concerning a definition of ``lands eligible for remining''; 
finding No. 2, IC 14-8-2-285.5, concerning a definition of 
``unanticipated event or condition''; finding No. 3, IC 14-34-2-4(a)(7) 
and (b), concerning responsibilities of the director of IDNR; finding 
No. 6.a., IC 14-34-10-2(b)(23)(A), concerning a 5-year revegetation 
responsibility period; finding No. IC 14-34-13-1 and 2, concerning 
reclamation fees for surface and underground coal mining operations; 
and finding No. 8, IC 14-34-19-2, concerning eligibility of lands for 
reclamation and restoration under the abandoned mine land program.
    With the requirement that Indiana further revise its rules, the 
Director approves, as discussed in: finding No. 4, IC 14-34-4-8.5, 
concerning violations resulting from an unanticipated event or 
condition occurring on a remining site; finding No. 5, IC 14-34-4-10.5, 
concerning identification of potential problems in a permit application 
for lands eligible for remining; and finding No. 6.b, IC 14-34-10-
2(b)(24), concerning a 2-year revegetation responsibility period for 
lands eligible for remining.
    In accordance with 30 CFR 732.17(f)(1), the Director is also taking 
this opportunity to clarify in the requirement amendment section at 30 
CFR 914.16 that, within 60 days of the publication of this final rule, 
Indiana must either submit a proposed written amendment, or a 
description of an amendment to be proposed that meets the requirements 
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is 
consistent with Indiana's established administrative or legislative 
procedures.
    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 effectively 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) provide that an 
amendment shall not take effect for purposes of a State program until 
approved by OSM. 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(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

[[Page 15895]]
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 Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 3, 1996.
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 (ppp) to read as 
follows:


Sec. 914.15  Approval of regulatory program amendments.

* * * * *
    (ppp) The amendment submitted by Indiana to OSM by letter dated 
September 11, 1995, is approved effective April 10, 1996.
    3. Section 914.16 is revised to add paragraph (hh) to read as 
follows:


Sec. 914.16  Required program amendments.

* * * * *
    (hh) By June 10, 1996, Indiana shall submit either a proposed 
amendment or a description of an amendment to be proposed, together 
with a timetable for adoption of proposed revisions to the Indiana 
program to provide implementing regulations for IC 14-34-4-8.5, 
concerning violations resulting from an unanticipated event or 
condition occurring on a remining site; IC 14-34-4-10.5, concerning 
identification of potential problems in a permit application for lands 
eligible for remining; and IC 14-34-10-2(b)(24), concerning a 2-year 
revegetation responsibility period for lands eligible for remining. 
Specifically, Indiana shall amend 310 IAC 12-3-112 by adding a 
counterpart to 30 CFR 773.15(b)(4) and 30 CFR 773.15(c)(13), as added 
on November 27, 1995 (60 FR 58480); shall amend 310 IAC 12-3 by adding 
a counterpart to 30 CFR 785.25, as added on November 27, 1995 (60 FR 
58480); and shall amend 310 IAC 12-4-7 by adding counterpart to 30 CFR 
816/817.116(c)(2)(ii), as added on November 27, 1995 (60 FR 58480).

[FR Doc. 96-8920 Filed 4-9-96; 8:45 am]
BILLING CODE 4310-05-M