[Federal Register Volume 64, Number 113 (Monday, June 14, 1999)]
[Rules and Regulations]
[Pages 31691-31693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15028]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-145-FOR; State Program Amendment No. 98-1]


Indiana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving an amendment to the Indiana regulatory program (Indiana 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Indiana proposed reference changes in its surface and 
underground mining rules concerning application requirements for 
geology descriptions and public participation. Indiana also proposed to 
add a new provision to its rule pertaining to surface mining 
application requirements for postmining land use information. Indiana 
intends to revise its program to be consistent with the corresponding 
Federal regulations.

EFFECTIVE DATE: June 14, 1999.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director, 
Indianapolis Field Office, Office of Surface Mining, 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 on the 
Indiana program at 30 CFR 914.10, 914.15, 914.16, and 914.17.

II. Submission of the Proposed Amendment

    By letter dated March 8, 1999 (Administrative Record No. IND-1633), 
Indiana sent us an amendment to its program under SMCRA. Indiana sent 
the amendment at its own initiative. Indiana proposed to amend the 
Indiana Administrative Code (IAC) at 310 IAC 12-3 regarding permit 
application requirements for geology descriptions, postmining land 
uses, and public participation.
    We announced receipt of the amendment in the March 25, 1999, 
Federal Register (64 FR 14412). 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 April 26, 1999. Because no one requested a public hearing or 
meeting, we did not hold one.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are our findings concerning the amendment.

1. 310 IAC 12-3-31  Surface Mining Permit Applications; Geology 
Description and 310 IAC 12-3-69 Underground Mining Permit Applications; 
Geology Description

    a. At 310 IAC 12-3-31(a)(3), Indiana replaced a reference to ``IC 
13-4.1'' with a reference to ``IC 14-34.'' This change was necessary 
because Indiana recodified the Indiana Surface Coal Mining and 
Reclamation Act, effective July 1, 1995. Indiana repealed Indiana Code 
(IC) 13-4.1 and recodified its substantive provisions at IC 14-8 and 
14-34. We find that this change will not make Indiana's regulation less 
effective than the counterpart Federal regulation at 30 CFR 
780.22(a)(3).
    b. At 310 IAC 12-3-31(c), 12-3-69(a)(3), and 12-3-69(c)(3), Indiana 
replaced references to ``this rule'' with references to ``this 
article.'' Since Article 12 contains all of the State's rules for coal 
mining and reclamation operations, the references to ``this article'' 
in Indiana's rules are consistent with the references to ``this 
chapter'' in the counterpart Federal regulations at 30 CFR 780.22(c), 
784.22(a)(3), and 784.22(c)(3). Therefore, Indiana's amended 
regulations at 310 IAC 12-3-31(c), 12-3-69(a)(3), and 12-3-69(c)(3) are 
no less effective than the counterpart Federal regulations.
    c. At 310 IAC 12-3-69(d), Indiana replaced a reference to 
``subsection (b)'' with a reference to ``subsections (b)(2) and 
(b)(3).'' As revised, the director may waive in writing only the permit 
application geologic information requirements for subsections (b)(2) 
and (b)(3) if that information is unnecessary because other reliable 
information is available. This is consistent with the requirements of 
the counterpart Federal regulation at 30 CFR 784.22(d). We find that 
Indiana's amended regulation at 310 IAC 12-3-69(d) is no less effective 
than the counterpart Federal regulation.

2. 310 IAC 12-3-48  Surface Mining Permit Applications; Reclamation and 
Operations Plan; Postmining Land Uses

    Indiana proposes to revise this rule by adding a new provision at 
subsection (a)(3) that requires the detailed description of the 
proposed land use in the reclamation plan to include an explanation of 
the consideration given to making all of the proposed surface mining 
activities consistent with surface owner plans and applicable state and 
local land use plans and programs. Indiana's new provision at 310 IAC 
12-3-48(a)(3) is substantively the same as the counterpart Federal 
regulation provision at 30 CFR 780.23(b)(3), and we are approving it.

3. 310 IAC 12-3-106  Permit Applications; Public Participation

    At 310 IAC 12-3-106(a)(8), Indiana proposes to correct a reference 
to its experimental practice regulatory provisions by replacing the 
reference to ``section 94'' with a reference to ``section 94.1.'' 
Indiana repealed section 94 and added section 94.1 effective October 1, 
1993. We find that this correction will make Indiana's regulation no 
less effective than the counterpart Federal regulation at 30 CFR 
773.13(a)(vi).

[[Page 31692]]

4. IC 14-34-8-8  Bond Pool

    In the April 20, 1992, Federal Register (57 FR 14350), we approved 
IC 13-4.1-6.5-8 [currently IC 14-34-8-8] with two additional 
requirements. At 30 CFR 914.16(h)(1), we required Indiana to complete 
an actuarial study of the surface coal mine reclamation bond pool as 
set forth in the OSM and Indiana Department of Natural Resources 
Cooperative Agreement GR 193184 and to initiate action to implement any 
forthcoming recommendations on participant fees and other matters 
affecting the long-term solvency of the pool. At 30 CFR 914.16(h)(2), 
we required Indiana to recalculate the performance bonds for all 
existing bond pool members and, if indicated, require the submission of 
additional Phase I performance bond. In response to these requirements, 
Indiana submitted an Actuarial Study Final Report dated June 1992 
(Administrative Record No. IND-1124) and completed the bond 
recalculations. In 1994, we conducted a review of the Indiana bond 
pool, including bond pool operation, solvency, bond adjustments, and 
bond replacements. On page 11 of the October 14, 1994, annual report 
for Indiana (Administrative Record No. IND-1640), we reported that 
Indiana operated the bond pool consistent with the assumptions used in 
the actuarial study and that the bond pool was solvent. We also found 
that Indiana conducted bond evaluation and made bond adjustments as 
needed. Therefore, we are taking this opportunity to remove the 
requirements codified at 30 CFR 914.16(h)(1) and (h)(2).

IV. Summary and Disposition of Comments

Public Comments

    We requested public comments on the proposed amendment, but did not 
receive any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the Indiana program (Administrative Record No. IND-1638).
    By letter dated April 15, 1999 (Administrative Record No. IND-
1642), the Fish and Wildlife Service (FWS) commented about Indiana's 
proposed new provision at 310 IAC 12-3-48(a)(3). This new provision 
concerns the detailed description of the proposed land use in the 
reclamation plan. It requires the applicant to include an explanation 
of the consideration given to making all of the proposed surface mining 
activities consistent with surface owner plans and applicable state and 
local land use plans and programs.
    The FWS commented that it seems inappropriate for the State to pass 
a regulation requiring changes in its coal regulatory program before 
OSM has reviewed and approved the changes.
    The Indiana Surface Coal Mining and Reclamation Act at Indiana Code 
(IC) 14-34-2-4(b) allows Indiana to submit a formal amendment to OSM 
only after the provisions of the amendment have been approved by the 
governor or have become law. We approved IC 14-34-2-4(b) on April 10, 
1996 (61 FR 15891), after finding that neither SMCRA nor the Federal 
regulations contain specific requirements regarding the administrative 
or legislative procedures in the State for rulemaking. However, the 
Federal regulation at 30 CFR 732.17(g) requires States to submit to OSM 
as an amendment any proposed changes to laws or regulations of an 
approved State program. It also specifies that these laws or 
regulations must not take effect for purposes of a State program until 
approved by OSM.
    In the March 1, 1999, Indiana Register (22 IR 1941), Indiana 
published a final rule notice of the proposed changes to the Indiana 
program being considered by OSM in this final rule. The Indiana final 
rule notice specified that the amendments to 310 IAC 12-3 will not 
become effective until the Indiana Department of Natural Resources 
receives notice of approval from OSM and publishes notice of that 
approval in the Indiana Register. Therefore, even though the Governor 
of Indiana approved the changes to 310 IAC 12-3-48 and the changes were 
published as final in the Indiana Register, they will not become 
effective until approved by OSM.
    The FWS also commented that a balance must be maintained between 
consideration of the wishes of surface land owners and local planning 
entities and the need to adhere to the environmental protection 
requirements of SMCRA and other Federal and State environmental laws 
and regulations. The FWS recommended that in situations where those 
laws and regulations take precedent over local plans and preferences, 
the ``consideration'' should include an explanation of why the conflict 
occurred, along with a brief explanation of the purpose and 
requirements of the relevant laws and regulations.
    As discussed in Finding 2, Indiana's new provision at 310 IAC 12-3-
48(a)(3) is substantively the same as the counterpart Federal 
regulation provision at 30 CFR 780.23(b)(3). However, we did provide 
the above comment and recommendation to Indiana for its consideration 
when implementing the new provision.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a 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 pertain to air or water quality 
standards. Therefore, we did not ask the EPA to agree on the amendment.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. IND-1638). By letter 
dated April 26, 1999, EPA stated that it had no comments to offer (IND-
1646).

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On March 17, 1999, we requested comments on Indiana's 
amendment (Administrative Record No. IND-1638), but neither responded 
to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Indiana on March 8, 1999.
    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 
expedite 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.

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 conducted the reviews required by 
section 3 of Executive Order 12988 (Civil Justice Reform) and 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of

[[Page 31693]]

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 State regulatory programs and program amendments 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

    This rule does not require an environmental impact statement since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on State regulatory program provisions do not constitute 
major Federal actions within the meaning of section 102(2)(C) of the 
National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
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. Therefore, this rule will ensure that existing requirements 
previously published 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: May 26, 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.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
March 8, 1999.................  June 14, 1999....  310 IAC 12-3-
                                                    31(a)(3), (c); 12-3-
                                                    48(a)(3); 12-3-
                                                    69(a)(3), (c)(3),
                                                    (d); 12-3-106(a)(8)
------------------------------------------------------------------------

Sec. 914.16  [Amended]

    3. Section 914.16 is amended by removing and reserving paragraph 
(h).

[FR Doc. 99-15028 Filed 6-11-99; 8:45 am]
BILLING CODE 4310-05-P