Federal Register, Volume 63 Issue 50 (Monday, March 16, 1998)

[Federal Register Volume 63, Number 50 (Monday, March 16, 1998)]
[Rules and Regulations]
[Pages 12648-12652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6687]

[[Page 12648]]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-139-FOR]

Indiana Abandoned Mine Land Reclamation Plan

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 abandoned
mine land reclamation plan (hereinafter referred to as the ``Indiana
plan'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The proposed amendment consists of revisions to the Indiana
plan pertaining to procedures for ranking and selecting reclamation
projects, coordination with other programs, reclamation of private
land, public participation policies, organization of designated agency,
Applicant/Violator System (AVS) requirements, flora and fauna of
southwestern Indiana, and the emergency response reclamation program.
The amendment is intended to revise the Indiana plan to be consistent
with the corresponding Federal regulations and SMCRA.

EFFECTIVE DATE: March 16, 1998.

FOR FURTHER INFORMATION CONTACT:
Andrew R. Gilmore, Director, Indianapolis Field Office, Office of
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal
Building, 575 North Pennsylvania Street, Room 301, Indianapolis,
Indiana 46204-1521, Telephone (317) 226-6700.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Plan
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 Plan

On July 29, 1982, the Secretary of the Interior approved the
Indiana plan. Background information on the Indiana plan, including the
Secretary's findings, the disposition of comments, and the approval of
the plan can be found in the July 26, 1982, Federal Register (47 FR
32110). Subsequent actions concerning the Indiana plan and amendments
to the plan can be found at 30 CFR 914.20 and 914.25.

II. Submission of the Proposed Amendment

By letter dated July 23, 1997 (Administrative Record No. IND-1579),
Indiana submitted a proposed amendment to its plan pursuant to SMCRA.
Indiana submitted the proposed amendment in response to a September 26,
1994, letter (Administrative Record No. IND-1583) that OSM sent to
Indiana in accordance with 30 CFR 884.15(d) and at its own initiative.
OSM announced receipt of the proposed amendment in the August 8,
1997, Federal Register (62 FR 42713), 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 September 8, 1997.
During its review of the amendment, OSM identified some editorial
errors relating to citation references, agency references, subparagraph
notations, and typographical errors. OSM notified Indiana of these
concerns by letter dated September 16, 1997 (Administrative Record No.
IND-1589). By letter dated February 4, 1998 (Administrative Record No.
IND-1594), Indiana notified OSM that the changes would be made and a
copy of the corrected plan submitted to OSM. Indiana also requested
that OSM proceed with publication of a final rule in the Federal
Register. Because the corrections needed are nonsubstantive in nature,
the Director is proceeding with publication of the final decision on
the proposed amendment.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and the
Federal regulations at 30 CFR 884.14 and 884.15 finds that the proposed
plan amendment meets the requirements of the corresponding Federal
regulations and is in compliance with SMCRA. 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. Miscellaneous Changes

At sections 884.13(c)(4), 884.13(c)(5), and 884.13(c)(6), Indiana
changed statute citation references to reflect re-codification of the
Indiana Surface Coal Mining and Reclamation Act under House Enrolled
Act No. 1047. This re-codification was approved by OSM on April 8, 1996
(61 FR 15378).
The Director finds that the above proposed revisions do not alter
the substance of the previously approved Indiana plan.

2. Reclamation Project Ranking and Selection Procedures, 884.13(c)(2)

a. At section 884.13(c)(2), Indiana added a new subcategory to its
Priority II objective concerning abandoned mine land (AML) problems
which adversely impact the public health, safety, or general welfare.
Potential sites may now include any water body adversely affected by
acid drainage derived from coal mine sources which has reduced
recreational or aesthetic value and for which there is local support
for reclamation. Indiana's existing plan at section 884.13(c)(2)
requires Indiana to ensure that priority is given to those eligible
post-1997 sites which are in the immediate vicinity of a residential
area or which have an adverse economic impact upon a community in
accordance with section 402(g)(4)(C) of SMCRA.
Section 403(a)(2) of SMCRA defines a Priority II site as one where
reclamation is needed to protect the public health, safety, and general
welfare from adverse effects of coal mining practices. The Federal
regulation at 30 CFR 884.13(c)(2) requires State reclamation plans to
include the specific criteria, consistent with section 403 of SMCRA,
for ranking and identifying projects to be funded. The Director finds
that the addition of the proposed subcategory for Indiana's Priority II
objective meets the requirement of 30 CFR 884.13(c)(2) and is not
inconsistent with the requirement of section 403(a)(2) of SMCRA.
b. At section 884.13(c)(2), Indiana deleted its former Priority IV
objective concerning AML problems which present a potential for
research and demonstration projects related to mine reclamation and
renumbered former Priority V and VI as priority IV and V, respectively.
The Energy Policy Act of 1992 amends SMCRA on October 24, 1992, by
deleting the fourth priority regarding research and demonstration
projects relating to the development of surface mining reclamation and
water quality control program methods and techniques originally found
in section 403(a) of SMCRA. Therefore, the Director finds that
Indiana's removal of its former Priority IV objective is in compliance
with the amended objectives of section 403(a) of SMCRA.
c. At section 884.13(c)(2), Indiana added a new provision entitled
``Remined Sites.'' Any site that is eligible for AML reclamation fund
expenditures, that is remined or reaffected by mining, remains eligible
for AML reclamation after bond release

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or bond forfeiture. Indiana's existing provision entitled ``Bond
Forfeiture'' provides that eligibility of bond forfeiture sites to
receive AML funding will be determined consistent with all Federal laws
and regulations including sections 401 through 411 of SMCRA.
The Energy Policy Act of 1992 amended SMCRA on October 24, 1992, by
revising section 404 of SMCRA to extend eligibility for AML reclamation
fund expenditures to lands which are eligible for remining. The
revision to section 404 of SMCRA provides that surface coal mining
operations on lands eligible for remining shall not affect the
eligibility of such lands for reclamation and restoration after the
release of the bond or deposit. In the event the bond or deposit is
forfeited, available funds may be used if the amount of such bond or
deposit is not sufficient to provide for adequate reclamation or
abatement. On May 31, 1994, OSM added a new provision at 30 CFR
874.12(h) to implement this requirement. The Director finds that
Indiana's proposed revision for remined sites in conjunction with its
existing provision for bond forfeiture sites is consistent with the
provisions of section 404 of SMCRA and CFR 874.12(h) of the Federal
regulations concerning remining operations.

3. Coordination with Other Programs, 884.13(c)(3)

In its provision entitled ``Natural Resources Conservation
Service--Rural Abandoned Mine Program,'' Indiana: (1) changed
references from ``Soil Conservation Service (SCS)'' to ``Natural
Resources Conservation Service (NRCS)'' and from ``SCS'' to ``NRCS'' to
reflect that Federal agency's name change; (2) changed references from
``AML program grants personnel'' to ``Indiana Restoration Program'' to
reflect changes in the State organization; and (3) removed the language
``Division of Reclamation annual plans will be developed with SCS as
funding is made available.'' In its provision entitled ``Emergency
Policy,'' Indiana removed the existing language and added the following
new language: ``Indiana's implementation of the Emergency Reclamation
Program is defined in the attached Amendment E.R.P.''.
The Director finds that the revisions proposed by Indiana either
correct or clarify existing provisions. Therefore, this section of the
State plan continues to meet the Federal requirements at 30 CFR
884.13(c)(3) to describe coordination of reclamation work among the
State reclamation program, the Rural Abandoned Mine Program, the
reclamation programs of any Indian tribes, and OSM's reclamation
programs.

4. Reclamation of Private Land, 884.13(c)(5)

a. Indiana removed the minimum 30-day time period for allowing the
landowner to prepay the amount of a proposed lien. The revised
provision now requires that prior to the time of actual filing of the
proposed lien, the landowner shall be notified of the amount of the
proposed lien and shall be allowed a reasonable time to prepay that
amount instead of allowing the lien to be filed against the property
involved. The Director finds that Indiana's revised provision is
substantively identical to the counterpart Federal provision at 30 CFR
882.13(b) and meets the requirement of 30 CFR 884.13(c)(5) that a State
reclamation plan include policies and procedures regarding reclamation
on private land under 30 CFR part 882.
b. Indiana added a new provision that allows the landowner, within
60 days of the lien being filed, to petition under local law to
determine the increase in market value of the land as a result of the
reclamation work. The Director finds that this provision is
substantively identical to the counterpart Federal provision at 30 CFR
882.13(c) and meets the requirement of 30 CFR 884.13(c)(5).

5. Public Participation Policies, 884.13(c)(7)

a. Indiana added a new public participation policy provision which
states that ``the publication `Citizens Guide to Indiana's Abandoned
Mine Land Program' is widely circulated to all interested citizens.''
Indiana revised its provision concerning how the Department of
Reclamation (DoR) responds to public concerns regarding private
property located over abandoned deep mined areas by specifying that the
DoR staff responds ``by investigating complaints, providing technical
information and recommending alternatives for action.'' The existing
provision did not require the DoR staff to provide technical
information.
The Director finds that the proposed revisions serve to enhance
Indiana's public participation policy and meet the requirement of 30
CFR 884.13(7) that a State plan include public participation and
involvement in the preparation of the State reclamation plan and in the
State reclamation program.
b. Indiana removed the existing language pertaining to its
intergovernmental review process pursuant to Executive Order (E.O.)
12372, and added a statement that its direct contact provisions have
replaced the E.O. 12372 requirements. Indiana's existing provisions for
intergovernmental review include direct contact with elected officials
on the Federal, State, county, township, and municipal level. The
contact includes a description of the reclamation work planned for each
site within the official's area of concern, maps that aid all reviewers
in locating proposed sites, and a questionnaire which gives the
recipient the opportunity to participate indirectly in the AML
reclamation program's planning process prior to submission to OSM for
authorization to proceed with each project. Indiana also requires that
detailed descriptions of proposed reclamation sites and construction
activities be distributed to various State and Federal agencies prior
to funding an application in order to allow inter-agency review to
provide guidance in designated specialized fields to more fully meet
the concerns and intent of State and Federal regulations such as the
National Fish and Wildlife Coordination Act and the National Endangered
Species Act.
The Director finds that Indiana's existing direct contact
provisions meet the requirements of E.O. 12372 for intergovernmental
review, and is approving the removal of the E.O. 12372 process
provision.
c. Indiana revised its plan to require that direct contact be made
with elected officials on the Federal, State, county, township, and
municipal and/or town level before it requests authorization from OSM
to proceed with each project. Indiana revised its plan to require that
detailed descriptions of proposed reclamation sites and construction
activities be distributed to various State and Federal agencies prior
to funding an application. Indiana revised its public meeting provision
to provide that meetings be held prior to requesting OSM's
authorization to proceed. Indiana also revised its plan to require that
when a construction site is selected, the Project Manager contacts the
affected land owners. In the existing plan these contacts were required
prior to submission of a grant application. The Director finds that
these revisions reflect revised grant procedures implemented by OSM
that do not require specific project submissions or approvals at the
time of grant application or issuance, and is approving them.
d. Indiana deleted the existing paragraphs specifying its public
meeting policy and format, and added the following revised public
meeting policy:

Public participation and awareness of a proposed reclamation
project may be carried out through public meetings prior to
requesting authorization to proceed. The

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meetings may be held at any location in order to satisfy the
concerns of citizens over a specific proposed site, or any group of
sites. Locations are selected for the meetings based upon special
requests or in response to citizen inquiry. Public notices are
published once per week for two consecutive weeks in a general
circulation newspaper within the county where the proposed site is
located. A thirty day comment period is allowed for response to
these public notices prior to requesting authorization to proceed.

Indiana's previous provision did not allow for a specific thirty
day comment period. The Director finds that the revised public meeting
provision enhances Indiana's public participation policy and meets the
requirement of 30 CFR 884.13(c)(7).

6. Organization of the Designated Agency, 884.13(d)(1)

Indiana proposed several revisions to this section to reflect its
current organization for conducting the reclamation program including
the following:
Indiana deleted the paragraph on the ``Geological Survey Division''
to reflect the survey being separated from the Department of Natural
Resources into an institute of the Indiana University. The
organizational chart of the Department of Natural Resources was revised
to reflect the current organization. The Division of Reclamation
organizational chart and organization references throughout the plan
were revised to reflect the current organization. Indiana revised the
current organizational structure for management of the Indiana
abandoned mined lands reclamation program by changing the name of the
AML Section to Restoration Program. The Restoration Program was re-
aligned into three functions designated Technical Services, Project
Design, and Project Management directly under the Restoration Program
Coordinator. A new position for Emergency Coordinator was added and the
Field Operations Coordinator position was moved directly under the
Restoration Program Coordinator. The Program Planning function was
changed to the Technical Services Manager function. The Environmental
Specialist, Inventory Specialist, and Financial Officer position were
changed to Technical Manager positions. The surveyor positions were
realigned from under the Chief Engineer to under the Construction
Supervisor. An Applicant/Violator System (AVS) Coordinator position was
added under the Regulatory Program function.
The Director finds that the proposed revisions meet the Federal
requirement at 30 CFR 884.13(d)(1) that a State reclamation plan
include a description of the organization of the designated agency and
its relationship to other State organizations or officials that will
participate in or augment the agency's reclamation capacity.

7. Personnel Staffing Policies, 884.13(d)(2)

Indiana changed its reference to ``DoR and the AML Section'' to
``DoR and the Restoration Program'' in order to reflect the current
organizational structure.
The Director finds that this proposed revision meets the Federal
requirement at 30 CFR 884.13(d)(1).

8. Purchasing and Procurement, 884.13(d)(3)--Applicant/Violator System
(AVS) Requirements

Indiana added a new provision, entitled ``Indiana AML Applicant/
Violator System (AVS) Program,'' to address requirements and procedures
for AVS checks on potential AML contractors. This new provision was
required by OSM in a letter sent to Indiana dated September 26, 1994,
pursuant to 30 CFR 884.15(d). The Federal regulations at 30 CFR 874.16
and 875.20 provide that to receive AML funds, every successful bidder
for an AML contract must be eligible under 30 CFR 773.15(b)(1), at the
time of contract award, to receive a permit or conditional permit to
conduct surface coal mining operations. Bidder eligibility must be
confirmed by OSM's automated Applicant/Violator System for each
contract to be awarded. Indiana developed a procedure within the State
contracting process to satisfy these requirements. All successful
bidders on AML federally funded projects must comply with 30 CFR
874.16, 875.20, and 773.15(b)(1). Specifically, all successful low
bidders being awarded federally funded AML contracts over $25,000 and
all subcontractors that will be performing over $25,000 of a contract
shall be cleared through the AVS. An AVS Entity Check Form will be
included with each of these bid packages. All contractors submitting a
bid will be required to fill out this form and submit it with their
bids. The contractor is also to submit this form for any applicable
known subcontractors. An AVS Contractor Certification Form will be
included with each bid package. The contractor certifies on this form
that he will comply with the AVS requirements. An AVS Contractor Waiver
Form will also be included with each bid package. This form may be
completed by the bidder and applicable subcontractors if that company
and its owners and controllers have never owned or controlled a surface
coal mining permit. After confirmation through the AVS that the company
and its owners and controllers are not linked to any surface coal
mining permit with any outstanding violations, future AVS clearance
checks would not be necessary unless the ownership or control of the
contractor or subcontractor changes. The low bidder and applicable
subcontractors will be checked through the AVS system by the Division
of Reclamation AVS Coordinator as soon as possible following bid
opening and prior to issuing the Bid Report. If a contractor or
subcontractor has an unresolvable AVS problem, a decision will be made
whether to rebid the project or go to the next low bidder. In order to
prevent excessive delays, a contractor will normally be allowed only
seven days to clear an AVS ``deny'' decision. Emergency program
contractors will also be required to meet Indiana's AVS clearance
requirements. A check after-the-fact will be performed if the Emergency
Response Coordinator determines there is an overriding need to proceed
prior to being able to make an AVS check. The results of this after-
the-fact check could be a basis for future contract denials.
The Director finds that Indiana's requirements for confirming
bidder eligibility by OSM's automated Applicant/Violator System are
consistent with the Federal requirements at 30 CFR 874.16 and 875.20.

9. Flora and Fauna of Southwestern Indiana, 844.13(f)(3)

Indiana revised this section to require the wildlife biologist to
evaluate sites to determine the presence of wetlands, endangered
species, or other environmental concerns. Indiana's existing plan
required the wildlife biologist to evaluate Priority II sites to
determine the presence of wetlands only. Indiana's provision concerning
a significant features review was revised to clarify interaction with
other Divisions in identifying important natural features and to
clarify policy on potential conflicts with endangered species or unique
natural features. A location map and proposed scope of work for each
reclamation site is routed to the Division of Nature Preserves (DNP)
for review. The DNP searches the Indiana Natural Heritage Program
database for each site to determine whether there are any important
natural features recorded at or near the proposed project. The
Restoration Program attempts to resolve any potential conflicts with
endangered species or unique natural features by designing the project
to avoid the

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critical habitat or natural feature. Projects that cannot be designed
for avoidance will be coordinated with the DNP and the Division of Fish
and Wildlife to develop a plan to minimize disturbance and mitigate any
losses. Indiana also made various revisions to the reclamation review
checklist which is completed by the Division of Nature Preserves for
the Division of Reclamation. These revisions include adding the
consideration of impacts to State Nature Preserves, State Forests,
State Reservoirs, and State endangered or threatened species.
The Director finds that Indiana's proposed revisions meet the
Federal requirements of 30 CFR 884.13(f)(3) that a State reclamation
plan include a general description of the conditions prevailing in the
different geographic areas of the State where reclamation is planned
relating to endangered and threatened plant, fish, and wildlife and
their habitat.

10. Amendment E.R.P. (Emergency Reclamation Program)

Indiana revised its emergency response reclamation program
provisions to clarify that the policies and procedures for emergency
reclamation on private and public lands will be the same as for other
AML reclamation activities that are detailed in the approved State
plan. The description of the Emergency Program Coordinator position was
changed to reflect that the position has been established.
The Director finds that the revisions to the Indiana plan relating
to its emergency response reclamation program meet the requirements of
30 CFR 884.13 (c) and (d) and are in compliance with SMCRA and the
Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

OSM 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 884.14(a)(2) and 884.15(a), the Director
solicited comments on the proposed amendment from various other Federal
agencies with an actual or potential interest in the Indiana plan by
letter dated August 4, 1997 (Administrative Record No. IND-1585.) By
letter dated August 20, 1997 (Administrative Record No. IND-1586), the
U.S. Fish and Wildlife Service responded that the proposed program
amendment would have no significant effect on wetlands and would not
affect any Federally endangered species, that other project impacts
would be minor in nature, and that the U.S. Fish and Wildlife Service
had no objections to the proposed amendment.

V. Director's Decision

Based on the above findings, the Director approves the proposed
plan amendment as submitted by Indiana on July 23, 1997.
The Federal regulations at 30 CFR Part 914, codifying decisions
concerning the Indiana plan, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State plan amendment process and to encourage States to
bring their plans into conformity with the Federal standard without
undue delay. Consistency of State and Federal standards is required by
SMCRA.

VI. Procedural Determinations

Executive Order 12866

This proposed rule is exempted from review by the Office of
Management and Budget (OMB) 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 and Tribal abandoned mine land reclamation plans and revisions
thereof since each such plan is drafted and promulgated by a specific
State or Tribe, not by OSM. Decisions on proposed abandoned mine land
reclamation plans and revisions thereof submitted by a State or Tribe
are based on a determination of whether the submittal meets the
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Part
884.

National Environmental Policy Act

No environmental impact statement is required for this rule since
agency decisions on proposed State and Tribal abandoned mine land
reclamation plans and revisions thereof are categorically excluded from
compliance with the National Environmental Policy Act (42 U.S.C. 4332)
by the Manual of the Department of the Interior (516 DM 6, appendix 8,
paragraph 8.4B(29)).

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 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. In making the
determination as to whether this rule would have a significant economic
impact, the Department relied upon the data and assumptions in the
analyses for the corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies pursuant to 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: March 5, 1998.
Brent Wahlquist,
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 914.25 is amended in the table in paragraph (a) by
adding a new entry in chronological order by ``Date of final
publication'' to read as follows:

Sec. 914.25 Approval of Indiana abandoned mine land reclamation plan
amendments.

(a) * * *

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Original amendment submission date Date of final publication Citation/description
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* * * * * * *
July 23, 1997.......................... March 16, 1998........... Indiana plan Secs. 884.13(c)(2) through (7), (d)(1) through (3), (f)(2), (3);
emergency response reclamation program.
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[FR Doc. 98-6687 Filed 3-13-98; 8:45 am]
BILLING CODE 4310-05-M