[Federal Register Volume 64, Number 50 (Tuesday, March 16, 1999)]
[Rules and Regulations]
[Pages 12890-12896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6350]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-144-FOR]


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 certain exceptions, an 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 and additions of statutes 
pertaining to other State and Federal laws and permit revisions. 
Indiana intends to revise its program to incorporate the additional 
flexibility afforded by SMCRA and to provide the guidelines for permit 
revisions, including incidental boundary revisions.

EFFECTIVE DATE: March 16, 1999.

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. Internet: [email protected].

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. You can find background information on 
the Indiana program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the July 26, 
1982, Federal Register (47 FR 32107). You can find later actions 
concerning the conditions of approval and program amendments at 30 CFR 
914.10, 914.15, 914.16, and 914.17.

II. Submission of the Proposed Amendment

    By letter dated May 14, 1998 (Administrative Record No. IND-1606), 
Indiana sent us an amendment to its program under SMCRA. The amendment 
concerns revisions to IC 14-8 and several sections of IC 14-34 made by 
the Indiana House Enrolled Act No. 1074. Indiana sent the amendment at 
its own initiative.
    We announced receipt of the amendment in the May 29, 1998, Federal 
Register (63 FR 29365). In the same document, we opened the public 
comment period and provided an opportunity for a public hearing or 
meeting on the adequacy of the amendment. The public comment period 
closed on June 29, 1998. Because no one requested a public hearing or 
meeting, we did not hold one.
    During our review of the amendment, we identified concerns relating 
to IC 14-34-4-18, Permit Conditions; IC 14-34-5-7, Definition of Permit 
Revision; IC 14-34-5-8.2, Nonsignificant Permit Revisions; and IC 14-
34-5-8.4, Minor Field Revisions. We notified Indiana of these concerns 
by letter dated September 15, 1998 (Administrative Record No. IND-
1621).
    Indiana responded to our concerns by letter dated December 21, 
1998. Included with Indiana's response letter was a letter sent by 
Indiana to the Indiana Coal Council, Inc. (ICC) and a

[[Page 12891]]

letter from the ICC to Indiana (Administrative Record No. IND-1627). We 
will discuss the State's response to our concerns in the Director's 
Findings below.
    In its letter to Indiana, the ICC commented that Indiana House 
Enrolled Act No. 1074 is the law of the State of Indiana and is legally 
binding regardless of OSM's approval or disapproval unless and until 
such time as OSM may undertake action to pre-empt it under 30 CFR 
730.11(a). We disagree with the ICC's comment. Provisions at 30 CFR 
732.17 detail the procedures for approving a State program amendment. 
Paragraph (g) requires a State to submit to OSM any proposed changes to 
the laws or regulations that make up an approved program as an 
amendment. Further, paragraph (g) provides that ``no such change to 
laws or regulations shall take effect for purposes of a State program 
until approved as an amendment.'' Thus, as a matter of law, the various 
provisions of House Enrolled Act No. 1074 cannot be implemented as part 
of Indiana's regulatory program until we approve them. Further, any 
provisions which are disapproved cannot be implemented as part of a 
State regulatory program under SMCRA. Therefore, we are proceeding with 
this final rule under the authority of 30 CFR 732.17(g).

III. Director's Findings

    Set forth below, in accordance with SMCRA and the Federal 
regulations at 30 CFR 732.15 and 732.17, are our findings concerning 
the proposed amendment.

1. IC 14-8-2-117.3, Definition for ``Governmental Entity''

    This section defines ``governmental entity.'' There is no Federal 
counterpart to this definition, and it is not used elsewhere in the 
approved program. Indiana apparently included it because of the use of 
the term in related programs. We approve the definition because it is 
not inconsistent with any requirements of SMCRA and it has no effect on 
the Indiana program.

2. IC 14-34-4-18, Permit Conditions

    Indiana added new subsection (b) to this section to allow the 
director to condition a permit to require that a permittee obtain or 
maintain in force other licences or permits required for surface coal 
mining and reclamation operations. However, these conditions do not 
authorize or require the director to administer or enforce the 
requirements of any Federal or State law other than this article.
    We interpret this provision to mean that any such condition would 
make the permit dependent upon a permittee obtaining and maintaining in 
force other required licenses or permits and that the director would 
enforce such conditions. We also interpret this provision to mean that 
the director will continue to administer and enforce all requirements 
of the approved program including those incorporated through cross 
references, such as Mine Safety and Health Administration (MSHA) dam 
safety requirements and Environmental Protection Agency (EPA) effluent 
limits. In its letter dated December 21, 1998, Indiana confirmed that 
it would interpret the above provision in a manner consistent with our 
interpretation.
    We approve IC 14-34-5-18(b), as clarified by the above 
interpretation, because it provides additional assurance that the 
regulatory authority will be able to comply with the provisions of 
SMCRA found in section 503(a)(6), which requires the approved State 
Program to establish, for the purpose of avoiding duplication, a 
process for coordinating the review and issuance of permits for surface 
coal mining and reclamation operations with any other Federal or State 
permit process applicable to the proposed operation. Thus, we find IC 
14-34-5-18(b) is no less stringent than section 503(a)(6) of SMCRA.

3. IC 14-34-5-7, Permit Revisions

    a. IC 14-34-5-7(a). Indiana revised subsection (a) to define a 
permit revision as a change in mining or reclamation operations from 
the approved mining and reclamation plans that adversely affects the 
permittee's compliance with the State's statutes and regulations. Such 
permit revisions are subject to review and approval as provided in this 
section and sections 8 through 8.4 of IC 14-34-5.
    The above statute would essentially create two categories of 
changes in mining and reclamation operations: those that affect the 
permittee's ability to comply with the State's statutes and 
regulations; and those that do not affect the permittee's ability to 
comply with the State's statutes and regulations. Only those changes 
that affect the permittee's ability to comply with the State's statutes 
and regulations are required to undergo regulatory review and approval. 
Other changes do not have to undergo regulatory review and approval.
    The above statute has three problems. First, it is inconsistent 
with 30 CFR 773.17(b), which require that a permittee conduct only 
those mining and reclamation operations detailed in the approved mining 
and reclamation plan. The above statute would allow a permittee to make 
a change in mining and reclamation operations without notifying the 
regulatory authority and obtaining its approval. Thus, under IC 14-34-
5-7(a), the permittee may conduct mining and reclamation operations 
that deviate from the approved mining and reclamation plan. Clearly, 
this is inconsistent with 30 CFR 773.17(b).
    Further, the above statute is inconsistent with our interpretation 
of a permit revision. As stated in the preamble of a September 28, 
1983, final rule, ``all revisions must be approved and incorporated 
into the permit since they are changes to that document'' (48 FR 
44377).
    Thus, all changes to the approved mining and reclamation plan are 
permit revisions subject regulatory authority review and approval. IC 
14-34-5-7(a) would limit permit revisions to only those changes in the 
mining and reclamation operations that adversely affects the 
permittee's ability to comply with the State's statutes and 
regulations. Clearly, this is inconsistent with our interpretation of a 
permit revision.
    Finally, the above statute would allow the permittee to determine 
whether a change is a permit revision that adversely affects his or her 
ability to comply with the State's laws and regulations. Thus, only 
after a permittee determines that a proposed change adversely affects 
his or her compliance will he or she submit it to the regulatory 
authority for review and approval. This is inconsistent with section 
511(a)(2) of SMCRA, which requires the regulatory authority to 
determine the scale or extent of a revision request for which all 
permit application information requirements and procedures apply.
    In its December 21, 1998, letter, Indiana responded to our concerns 
about IC 14-34-5-7(a) by stating that it interprets the statutory 
reference to IC 14-34-5-8 through 8.4 to mean that the director or his 
designee is the only person authorized to determine whether a proposed 
change is significant or nonsignificant. The permit applicant does not 
make the determination.
    We agree that the director or his designee is the only person 
authorized to determine whether a proposed change is significant or 
nonsignificant. However, the distinction between significant and 
nonsignificant revisions is not at issue. At issue is who determines 
whether changes in the mining and reclamation operation require 
regulatory review and approval at all. IC 14-34-5-7(a) leaves the

[[Page 12892]]

determination of whether a change requires review and approval in the 
hands of the permittee. The director or his designee cannot determine 
whether a proposed change is significant or nonsignificant if the 
permittee does not submit it for review. Under IC 14-34-5-7(a), the 
permittee would first determine that a proposed change adversely 
affects his or her compliance, and then submit it to the regulatory 
authority for review and approval. As stated above, this provision is 
inconsistent with section 511(a)(2) of SMCRA, which requires the 
regulatory authority to determine the scale or extent of a revision 
request for which all permit application information requirements and 
procedures apply.
    Even if IC 14-34-5-7(a) is interpreted to mean that the director or 
his designee is the only person authorized to determine if a proposed 
change adversely affected the permittees' ability to comply with the 
State's statutes and regulations, the provision is still inconsistent 
with our interpretation of permit revisions and 30 CFR 773.17(b). All 
changes to the approved mining and reclamation plan, regardless of 
their effect of the permittees' ability to comply with the State's 
statutes and regulations, are permit revisions that must be submitted 
to the regulatory authority for review and approval. Further, the 
permittee can conduct only those changes that are detailed in the 
approved mining and reclamation plan. Therefore, we do not approve IC 
14-34-5-7(a).
    b. IC 14-34-5-7(b). Indiana revised subsection (b) to establish 
three types of permit revisions: significant revisions with notice and 
hearing requirements; non-significant revisions without hearing and 
notice requirements; and minor field revisions. We approve subsection 
(b) because it is consistent with, and no less stringent than, section 
511(a)(2) of SMCRA, which requires the State to establish guidelines as 
to the scale or extent of a revision request for which all permit 
application information requirements and procedures shall apply.
    c. IC 14-34-5-7(c). Indiana added subsection (c) to provide that 
the director or his or her designated representative may approve permit 
revisions. We approve this provision because it is no less stringent 
than section 511(a)(2) of SMCRA, which requires the regulatory 
authority to approve permit revisions.
    d. IC 14-34-5-7(d). Finally, Indiana added subsection (d) to 
provide that the regulatory authority may not approve a permit revision 
unless the director or his or her designated representative finds that 
reclamation can be accomplished, the applicable requirements of IC 14-
34-4-7 are met, and the permit revision complies with all applicable 
requirements of the State's statutes and regulations. We approve this 
provision because it is consistent with, and no less stringent than, 
the Federal provisions at 511(a)(2) of SMCRA, which requires a 
regulatory authority to approve a permit revision only after it finds 
that reclamation can be accomplished under the revised reclamation 
plan.

4. IC 14-34-5-8, Permit Revisions

    In this section, Indiana revised subsection (a) to require the 
regulatory authority to hold hearings and publish public notices for 
significant permit revisions, but not nonsignificant or minor field 
revisions. We approve this statute because it is consistent with, and 
no less stringent than, Section 511(a)(2) of SMCRA, which requires the 
State to establish guidelines as to the scale or extent of a revision 
request for which all permit application information requirements and 
procedures shall apply.

5. IC 14-34-5-8.1, Significant Permit Revisions

    Indiana added this section to establish guidelines for determining 
whether a proposed revision is significant and, therefore, subject to 
Indiana's notice and hearing requirements. The statute provides eight 
specific examples of significant revisions. The examples are similar to 
those contained in the Federal program for Tennessee. We approve this 
statute because it is consistent with, and no less stringent than, 
Section 511(a)(2) of SMCRA, which requires the State to establish 
guidelines as to the scale or extent of a revision request for which 
all permit application information requirements and procedures shall 
apply. However, we advise Indiana that this list cannot be considered 
all inclusive, as there are many other changes not listed at IC 14-34-
5-8.1 that would be considered significant revisions.

6. IC 14-34-5-8.2, Nonsignificant Permit Revisions

    Indiana added this new section to establish guidelines for 
determining whether a proposed change to a permit is a nonsignificant 
revision. The statute provides five specific examples of nonsignificant 
revisions. Examples in sections 8.2(1), (2), (3), (5)(A), and (5)(B) 
are similar to examples approved in other State programs. Further, they 
are consistent with, and no less stringent than, section 511(a)(2) of 
SMCRA, which requires the State to establish guidelines as to the scale 
or extent of a revision request for which all permit application 
information requirements and procedures shall apply. Therefore, we 
approve sections 8.2(1), (2), (3), (5)(A), and (5)(B).
    a. IC 14-34-5-8.2(4). Section 8.2(4) would allow the director to 
approve postmining land use changes other than residential, commercial 
or industrial, recreational, or developed water resources meeting MSHA 
requirements for a significant impoundment as nonsignificant revisions 
without notice and hearing requirements.
    Section 511(a)(2) of SMCRA requires the State to establish 
guidelines for determining which revision requests are subject to 
notice and hearing requirements. However, it also requires, at a 
minimum, notice and hearing requirements for any significant 
alterations in a reclamation plan. IC 14-34-5-8.2(4) would allow many 
changes that could produce significant alterations in a reclamation 
plan, such as a change from cropland to forest, without notice and 
hearing requirements. Allowing such a change without notice and hearing 
requirements is inconsistent with, and less stringent than, section 
511(a)(2) of SMCRA.
    In its December 21, 1998, letter, Indiana stated that it interprets 
this section to mean that the director of the State regulatory 
authority retains discretion under IC 14-34-5-8.2(5) to determine 
whether land use changes other than those listed in IC 14-34-5-8.1(8) 
could be significant revisions. Indiana further stated that all permit 
revision decisions are appealable under the Indiana Administrative 
Orders and Procedures Act.
    We agree that the director retains discretion as to whether a 
change is significant or nonsignificant. However, director discretion 
does not change the fact that the statute is inconsistent with section 
511(a)(2) of SMCRA, which requires notice and hearing requirements for 
any significant alterations in a reclamation plan. Further, the fact 
that all permit revision decisions are appealable under the Indiana 
Administrative Orders and Procedures Act does not justify the inclusion 
of a provision in this section that is inconsistent with, and less 
stringent than, section 511(a)(2) of SMCRA. Finally, changes in 
postmining land use are the kind of issue that the public should have 
an opportunity to comment on. Therefore, we do not approve section 
8.2(4).
    b. IC 14-34-5-8.2(5)(C). Section 8.2(5)(C) would allow the director 
to

[[Page 12893]]

approve changes in the mining or reclamation plan necessitated by 
unanticipated and unusually adverse weather conditions, other Acts of 
God, strikes, or other causes beyond the reasonable control of the 
permittee as nonsignificant revisions without notice and hearing 
requirements if all of the steps specified by the director to maximize 
environmental protection are taken.
    This provision is similar to the Illinois program provision found 
at 62 IAC 1774.13(b)(2)(F). However, it has one major difference. The 
Illinois program regulation provides that a permit revision is not 
significant if the revision is a temporary change necessitated by 
unanticipated and unusually adverse weather conditions, other acts of 
God, strikes, or other cause beyond the reasonable control of the 
permittee. The Indiana statute as written would allow those changes to 
be permanent. Many of the causes listed in this statute could result in 
major environmental impacts requiring permanent changes to mining and 
reclamation plans. If these changes are permanent in nature, they must 
go to public notice and hearing.
    In its December 21, 1998, letter, Indiana responded to our concerns 
about this provision by stating that it interprets this section to mean 
that the director determines whether a change necessitated by causes 
beyond the reasonable control of the permittee is significant or 
insignificant. Because the causes listed in this section are by their 
nature temporary, the vast majority of permit revisions will be 
insignificant. Indiana pointed out that the provision at IC 14-34-5-8.3 
reiterates that the director must review and approve revisions before 
implementation. Therefore, any permanent changes that the director 
determines to be significant revisions will be subject to public review 
before being approved as permanent.
    We approve IC 14-34-5-8.2(5)(c) with the understanding that Indiana 
will interpret it to mean that temporary changes necessitated by 
unanticipated and unusually adverse weather conditions, other acts of 
God, strikes, or other cause beyond the reasonable control of the 
permittee will be approved as nonsignificant permit revisions. 
Permanent changes will be reviewed by the director, and the director 
will make a determination as to whether the change qualifies as 
significant or nonsignificant. Interpreted in this manner, we find that 
the above statute is consistent with, and no less stringent than, the 
provisions of section 511(a)(2) of SMCRA, which requires the State to 
establish guidelines for determining which revision requests are 
subject to notice and hearing requirements.

7. IC 14-34-5-8.3, Nonsignificant Permit Revisions

    This section provides that before a nonsignificant permit revision 
can be implemented, the director must review and approve it. We approve 
this provision because it is consistent with, and no less stringent 
than, the requirements of section 511(a)(2) of SMCRA, which requires 
the regulatory authority to approve permit revisions.

8. IC 14-34-5-8.4, Minor Field Revisions

    a. IC 14-34-5-8.4(a), (b), and (c)(1). Subsections 8.4(a), (b), and 
(c)(1) establish the guidelines for determining whether a proposed 
change to a permit is a minor field revision. Subsection (a) 
establishes that a minor field revision must not require technical 
review or design analysis and must be capable of being evaluated in the 
field by the director's designated delegate for compliance with the 
regulations of IC 14-34-5-7(d). Subsection (b) provides that field 
inspectors may approve minor field revisions on either an inspection 
report or a form signed in the field. Subsection (c)(1) provides that a 
minor field revision must be properly documented and separately filed.
    We approve the provisions of the above statutes because they are 
similar to those approved in other State Programs and are no less 
stringent than the requirements of section 511(a)(2) of SMCRA, which 
requires the State to establish guidelines as to the scale or extent of 
a revision request for which all permit application information 
requirements and procedures shall apply.
    b. IC 14-34-5-8.4(c)(2). Subsection (c)(2) provides twelve specific 
examples of minor field revisions. Because IC 14-34-5-8.4(a) defines a 
minor field revision as a change that does not require technical review 
or design analysis and is capable of being evaluated in the field by a 
designated delegate of the director, we approve the examples at 
subsection (c)(2)(A) through (J) and (L) because they are consistent 
with, and no less stringent than, section 511(a)(2), which requires the 
State to establish guidelines for determining which revision requests 
are subject to notice and hearing requirements.
    However, we do not approve the provision at subsection (c)(2)(K) 
regarding temporary cessation of mining because it is not considered a 
permit revision under Federal regulations. Because temporary cessation 
of mining often has a significant effect on the mining and reclamation 
process and progress, specific Federal regulations were developed at 30 
CFR 816.131 and 817.131. We find that cessation of mining cannot be 
considered under the permit revision regulations and therefore cannot 
be considered as either a minor field revision or a non-significant 
revision. Therefore, we do not approve the provision at IC 14-34-5-
8.4(c)(2)(K).

9. IC 14-34-5-8.5, Permit Area Extensions

    Indiana's added this section to provide that a permittee must apply 
for a new permit for an extension of the area covered by a permit, 
except for an incidental boundary revision. We approve the addition of 
this section because it is substantively identical to the Federal 
provisions at 511(a)(3) of SMCRA.

10. IC 14-34-5-8.6, Incidental Boundary Revisions

    Indiana added this section to establish the scale and extent of 
incidental boundary revisions, provide guidance on the standards that 
must be met on any areas approved through the incidental boundary 
revision process, and describe the application and approval procedures. 
We approve the addition of this section because it is consistent with, 
and no less stringent than, section 511(a)(2) of SMCRA, which requires 
the State to establish guidelines as to the scale or extent of a 
revision request for which all permit application information 
requirements and procedures shall apply.

11. Revisions to Other State Statutes

    Indiana included the following statute revisions in the amendment: 
IC 14-22-10-2; IC 14-22-10-2.5; and IC 14-27-7-4. We did not review 
these statute revisions because they concern other State laws and not 
Indiana's approved program.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the proposed amendment. By telefax 
dated June 26, 1998 (Administrative No. IND-1617), the Indiana Coal 
Council, Inc. (ICC) commented that it supports all the program 
amendments proposed for IC 14-34. They also provided specific comments 
in support of IC 14-34-5-7(a), which defines a permit revision as a 
``change in mining or reclamation operations from the approved plans 
that would adversely affect the permittee's compliance with this 
article.'' ICC

[[Page 12894]]

commented that SMCRA does not specifically define a permit revision or 
state that all mining or reclamation changes are revisions subject to 
regulatory authority approval. Furthermore, they contend that the 
Indiana program already has an approved regulation, 310 IAC 12-3-
121(a), that does not require regulatory authority approval of all 
permit revisions. Thus, ICC believes that the statutory language found 
at IC 14-34-5-7(a) will not interfere with the proper implementation of 
the Indiana program because it excludes from the definition of permit 
revision only those changes that do not effect the permittee's 
compliance with SMCRA. They point out that such changes would have to 
be fairly insignificant and that no practical purpose would be served 
by subjecting them to the permit review and approval process. ICC 
contends that it would be ``arbitrary and capricious for OSM to 
disapprove this program amendment based on a perceived inconsistency 
with OSM's interpretation of what SMCRA `envisions' if OSM is unable to 
identify a specific provision of SMCRA with which the amendment 
conflicts.''
    We agree that SMCRA does not specifically define a permit revision. 
However, as stated in Finding No. 3a, we have established that all 
revisions must be approved and incorporated into the permit since they 
are changes to that document (48 FR 44377). The finding in this 
document is consistent with our September 28, 1983, final rule. 
Furthermore, while 310 IAC 12-3-121(a) requires permit revisions for 
significant changes in original mining or reclamation plans, it also 
specifically states that such changes are not limited to those changes 
which could result in the operator's inability to comply with the 
performance standards outlined in 310 IAC 12-5-1 through 310 IAC 12-5-
158. Thus, IC 14-34-5-7(a) is inconsistent with the State program 
regulations at 310 IAC 12-3-121(a). Finally, it is entirely possible 
that a change to a reclamation plan would not adversely affect a 
permittee's ability to comply with the provisions of Article 34 of the 
Indiana Code or SMCRA, but still represent a significant change to the 
mining or reclamation plan. Thus, the definition found at IC 14-34-5-
7(a) conflicts with Section 511(a)(2) of SMCRA, which requires that any 
significant alterations of a reclamation plan be subject to, at a 
minimum, notice and hearing requirements. As discussed in Finding No. 
3a, we are not approving IC 14-34-5-7(a).
    ICC commented that the category of permit revisions defined at IC 
14-34-5-8.4, minor field revisions, has been employed for some time in 
the approved Kentucky state program. ICC pointed out that while Indiana 
Department of Natural Resources (IDNR) staff and the IDNR Commission 
have approved variants of the language located at IC 14-34-5-8.4, they 
were never finalized because of questions raised by the Indiana 
Attorney General about the need for a statutory change. ICC commented 
that defining minor field revisions and providing for their approval 
minimizes administrative burdens on the permittee and the regulatory 
authority. ICC strongly supports the idea of minor field revisions and 
the specific language found at IC 14-34-5-8.4, ``which was arrived at 
after lengthy discussions between regulators and industry to identify 
categories of revisions most suitable for field approval.'' The ICC 
believes that the minor field revisions approval process established at 
IC 14-34-5-8.4 is consistent with IDNR's efforts to centralize 
responsibility for permit areas in the field inspector.
    ICC also commented that the language at IC 14-34-5-8.4(a) clearly 
limits the approval of minor field revisions to those that meet the 
conditions set forth in IC 14-34-5-8.4(a)(1) and (2). Thus, ICC 
contends that the fact that some of the categories of revisions 
identified at IC 14-34-5-8.4(c) may require technical review or design 
analysis is no basis for disapproval of the statute. ICC pointed out 
that pond design and drainage control measures do not usually require 
technical review or design analysis in Indiana. ICC stated that 
``circumstances in the field require minor changes in the configuration 
of sediment ponds which are so obviously inconsequential that a cursory 
examination suffices to show that the modified design is as effective 
as the original design. * * * If IDNR inspectors are not competent 
enough to evaluate such changes in the field, then they would not be 
able to judge whether ponds conformed to approved designs in general.'' 
ICC commented that Kentucky program regulations provide for approval of 
some pond relocations and some drainage control measures as minor field 
revisions. Finally, ICC contends that any concern that IC 14-34-5-
8.4(a) would be abused in practice is no basis for disapproval of the 
statute, as OSM conducts continuous oversight of approved State 
programs and has adequate resources for remedying defective state 
programs.
    As stated in Finding No. 8b, we are approving the examples at 
subsection (c)(2)(A) through (J) and (L) because the provisions of IC 
14-34-5-8.4(a) clearly define a permit revision as a change that does 
not require technical review or design analysis and is capable of being 
evaluated in the field by a designated delegate of the director. 
However, we are not approving the example at IC 14-34-5-8.4(c)(2)(K) 
concerning cessation of mining. As stated in Finding No. 8b, Federal 
regulations do not consider cessation of mining a permit revision.
    ICC commented that incidental boundary revisions as defined at IC 
14-34-5-8.6 are not a separate category of permit revisions, but rather 
fall into one of the three categories defined at IC 14-34-5-7(b). ICC 
commented that every incidental boundary revision will be either a 
nonsignificant revision or a minor field revision since one of the 
criteria for an incidental boundary revision is that the revision may 
not be a major revision. ICC stated that in practice, they do not 
anticipate incidental boundary revisions will ever qualify as a minor 
field revision. Therefore, incidental boundary revisions will be 
approved under the criteria for nonsignificant revisions. ICC commented 
that this corresponds to the current practice in Indiana. Thus, the 
statutory provision should be approved as submitted.
    We realize it would be difficult to anticipate every change needed 
by a mining and reclamation operator and to categorize it as 
significant, insignificant, or a field revision. Even the same type of 
change can vary in size or scope to the degree that a single category 
would not be applicable. Further, we agree that in most cases an 
incidental boundary revision would qualify as an insignificant 
revision. However, we maintain that because the addition of area 
through an incidental boundary revision requires permit document 
modification, and may include areas with significant environmental 
resources, such changes cannot be approved as a minor field revision.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Indiana program. By letter dated June 19, 
1998 (Administrative Record No. IND-1615), the U.S. Fish and Wildlife 
Service (FWS) responded that the meaning of IC 14-34-4-18(b) is unclear 
and that they would like an analysis of how the wording would change 
the IDNR's role in the Copperbelly Watersnake Conservation Agreement.
    Interpreted in the manner stated in Finding No. 2, IC 14-34-4-18(b) 
will provide additional assurance that the regulatory authority will be 
able to comply with the provisions of SMCRA

[[Page 12895]]

found in Section 503(a)(7) which requires the approved State program to 
establish for the purpose of avoiding duplication, a process for 
coordinating the review and issuance of permits for surface coal mining 
and reclamation operations with any other Federal or State permit 
process applicable to the proposed operation. This requirement will not 
have any affect on the IDNR's role in the Copperbelly Watersnake 
Conservation Agreement.
    The FWS commented that the language at IC 14-34-5-8.2(5) does not 
identify who makes the determination that additional fish and wildlife 
impacts will occur. Further, the FWS commented that the wording at IC 
14-34-5-8.1(8) and IC 14-34-5-8.2(4) does not clearly identify the 
threshold for determining whether a revision resulting in loss post-
mining wildlife habitat is significant or not. The FWS recommends that 
the final rule should not result in fewer opportunities for the FWS to 
review post-mining land use changes.
    IC 14-34-5-7(c) states that any permit revision may be approved by 
the director or the director's designated representative. Thus, the 
director or the director's designated representative would be 
responsible for determining whether the permit revision qualifies as a 
significant, nonsignificant, or minor field revision under the 
guidelines provided at IC 14-34-5-8.1 through IC 14-34-5-8.4.
    All post-mining changes found at IC 14-34-5-8.1(8) are considered 
significant and can only be approved after the notice and hearing 
requirements of the state law have been fulfilled. We did not approve 
the language at IC 14-34-5-8.2(4). Further, we have advised the state 
that the list found at IC 14-34-5-8.1 cannot be considered all 
inclusive.
    Finally, the FWS stated that in all appropriate sections, the rule 
should specifically state that a proposed change is not insignificant 
or incidental if it will result in new or additional impacts on 
endangered species or wetlands.
    IC 14-34-5-8.1(5) provides that a proposed revision of a permit is 
significant if the changes result in an adverse impact on fish, 
wildlife, and related environmental values beyond that previously 
considered. Related environmental values include impacts on endangered 
species or wetlands. IC 14-34-5-8.1(5) requires that a permit revision 
be designated as significant if this condition exists. The inclusion of 
a specific statement in other related sections would be redundant and 
excessive.

Environmental Protection Agency (EPA)

    Provisions at 30 CFR 732.17(h)(11)(ii) require us to get written 
agreement from the EPA for those provisions of the program amendment 
that relate to air or water quality standards issued 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 concern air or water quality 
standards. Therefore, we did not request the EPA to agree on the 
amendment.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
proposed amendment from the EPA (Administrative Record No. 1609). The 
EPA did not respond to our request.

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

    Provisions at 30 CFR 732.17(h)(4) require us to ask the SHPO and 
ACHP for comments on amendments which may have an effect on historic 
properties. On May 21, 1998, we requested comments on Indiana's 
amendment (Administrative Record No. 1609), but neither responded to 
our request.

V. Director's Decision

    Based on the above findings, we approve the proposed amendment as 
sent to us by Indiana on May 14, 1998, with the following exceptions:
    We do not approve, as stated in Finding No. 3a, IC 14-34-5-7(a), 
concerning permit revisions; as stated in Finding No. 6a, IC 14-34-5-
8.2(4), concerning postmining land use changes; and as stated in 
Finding No. 8b, IC 14-34-5-8.4(c)(2)(K), concerning minor field 
revisions.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 914, which codify decisions concerning the Indiana 
program. We are making this final rule effective immediately to speed 
the State program amendment process and to encourage Indiana to bring 
its program into conformity with the Federal standards. SMCRA requires 
consistency of State and Federal standards.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the Secretary approves its State 
program. Similarly, 30 CFR 732.17(a) requires the State regulatory 
authority to submit any alterations of an approved State program to OSM 
for review as a program amendment. The Federal regulations at 30 CFR 
732.17(g) prohibit any changes to State programs that OSM does not 
approve. In the oversight of the Indiana program, we will recognize 
only the statutes, regulations and other materials the Secretary and we 
approve, together with any consistent implementing policies, directives 
and other materials. We will require the enforcement by Indiana of only 
such provisions.

VI. Procedural Determinations

Executive Order 12866

    The Office of Management and Budget (OMB) exempts this rule from 
review 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 regulatory programs and program amendments since each 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

[[Page 12896]]

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.

Unfunded Mandates

    OSM has determined and certifies under 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: February 24, 1999.
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 914.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 914.15  Approval of Indiana regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
May 15, 1998.........................  March 16, 1999.........  IC14-8-2-117.3, 14-34-4-18, 14-34-5-7(b) through
                                                                 (d), -8, -8.1, -8.2(1) through (3), -8.2(5)(A)
                                                                 through (5)(C), -8.3, -8.4(a) through (c)(1),-
                                                                 8.4(c)(2)(A) through (J) and (L), -8.5,-8.6.
----------------------------------------------------------------------------------------------------------------

    3. Section 914.17 is added to read as follows:


Sec. 914.17  State regulatory program provisions and amendments 
disapproved.

    (a) The amendment at Indiana Code 14-34-5-7(a) submitted on May 14, 
1998, concerning permit revisions is hereby disapproved effective March 
16, 1999.
    (b) The amendment at Indiana Code 14-34-5-8.2(4) submitted by 
Indiana on May 14, 1998, concerning postmining land use changes is 
hereby disapproved effective March 16, 1999.
    (c) The amendment at Indiana Code 14-34-5-8.4(c)(2)(K) submitted by 
Indiana on May 14, 1998, concerning minor field revisions of temporary 
cessation of mining is hereby disapproved effective March 16, 1999.

[FR Doc. 99-6350 Filed 3-15-99; 8:45 am]
BILLING CODE 4310-05-P