[Federal Register Volume 60, Number 178 (Thursday, September 14, 1995)]
[Rules and Regulations]
[Pages 47692-47695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22866]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[SPATS No. IN-123-FOR; State Amendment No. 95-2]
Indiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the Indiana permanent
regulatory program (hereinafter referred to as the ``Indiana program'')
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
Indiana proposes to revise revegetation standards for success for
nonprime farmland for surface and underground coal mining and
reclamation operations under Indiana Code (IC) 13-4.1. The amendment is
intended to improve operational efficiency.
EFFECTIVE DATE: September 14, 1995.
FOR FURTHER INFORMATION CONTACT:
Mr. Roger W. Calhoun, Director, Indianapolis Field Office, Office of
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal
Building, 575 North Pennsylvania Street, Room 301, Indianapolis,
Indiana 46204, Telephone (317) 226-6166.
SUPPLEMENTARY INFORMATION:
I. Background on the Indiana Program.
II. Submission of the 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 Amendment
By letter dated May 3, 1995 (Administrative Record No. IND-1460),
Indiana submitted a proposed amendment to its program pursuant to
SMCRA. Indiana submitted the proposed amendment at its own initiative.
This amendment revises 310 IAC 12-5-64.1 and 310 IAC 12-5-128.1
pertaining to success standards for revegetation on nonprime farmland
for surface and underground coal mining operations under IC 13-4.1.
OSM announced receipt of the proposed amendment in the May 30,
1995, Federal Register (60 FR 28069), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on June 29, 1995.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
310 IAC 12-5-64.1 (Surface) and 12-5-128.1 (Underground) Revegetation
Standards for Success for Nonprime Farmland
Since the revisions being proposed for surface mining at Sec. 12-5-
64.1(c) are
[[Page 47693]]
identical to those being proposed for underground mining at Sec. 12-5-
128.1(c), they will be combined for ease of discussion. These
subsections provide the standards for success which are to be applied
under the approved postmining land uses.
1. Organizational and Reference Changes. Indiana proposes paragraph
notation changes to reflect the organizational changes made throughout
subsections (c). Additionally, Indiana proposes revisions throughout
subsections (c) to correct the reference to the ``Soil Conservation
Service'' to the ``Natural Resources Conservation Service.''
The Director finds the organizational changes and the correction of
the reference do not render the Indiana regulations at 310 IAC 12-5-
64.1/128.1 less effective than the Federal regulations at 30 CFR 816/
817.116.
2. Subsections (c)(3)(B); Pastureland Production Success Standards.
Subsection (c)(3)(B) concern the production success standards for
revegetated pastureland areas. Indiana is proposing to relocate the
provision in existing subsections (c)(4), which requires that if the
current Natural Resources Conservation Service predicted yield by soil
map units is used to determine production of living plants, then the
standard for success shall be a weighted average of the predicted
yields for each unmined soil type which existed on the permit areas at
the time the permit was issued, to subsections (c)(3)(B).
The Director finds this organizational change does not render the
Indiana regulations less effective than the Federal regulations and is
approving this modification.
3. Subsections (c)(3)(C); Pastureland Production Success Standards
Methodology. Indiana is proposing to delete the existing provision in
subsections (c)(3)(C) for determining production of living plants on
pastureland and is proposing to add the following provision.
(C) A target yield determined by the following formula: Target
Yield = NRCS Target Yield x (CCA/10 Year CA) where: NRCS Target
Yield = the average yield per acre, as predicted by the Natural
Resources Conservation Service, for the crop and the soil map units
being evaluated. The most current yield information at the time of
permit issuance shall be used, and shall be contained in the
appropriate sections of the permit application. CCA = the county
average for the crop for the year being evaluated as reported by the
United States Department of Agriculture crop reporting service, the
Indiana Agricultural Statistics Service. 10 Year CA = the ten (10)
Year Indiana Agricultural Statistics Service county average,
consisting of the year being evaluated and the nine (9) preceding
years.
The Federal regulations at 30 CFR 816/817.116(a)(2) require that
standards for success shall include criteria representative of unmined
lands in the area being reclaimed to evaluate the appropriate
vegetation parameters of ground cover, production, or stocking. As
discussed in the May 29, 1992, Federal Register (57 FR 22655),
Indiana's average county yield data contains data of yields form
previously mined lands. In letters dated February 26, 1992
(Administrative Record No. IND-1036 and IND-1037), OSM asked Indiana to
clarify the use of this data. In letters dated March 20, 1992
(Administrative Record No. IND-1051 and IND-1052), Indiana stated that
the amount of previously mined acreage being farmed is so limited that
the inclusion of these yields essentially has no impact upon the
overall yields calculated for the county average. Indiana also stated
that it used the average county yield data as a weather correction
factor applied to predicted soil mapping unit yields.
In the May 29, 1992, Federal Register (57 FR 22655, finding No.
1.c.), the Director found that the use of the Indiana average county
yield data as the sole standard for determining success of revegetation
would be less effective than the Federal regulations at 30 CFR 816/
817.116.(a)(2). However, the Director found that the use of Indiana's
average county yield data as a correction factor would not be
inconsistent with the Federal regulations.
The currently proposed methodology is an acceptable way to
calculate production standards for non-prime farmland pastureland. This
method adjusts the weighted production standard based on soil type by
using a factor derived by the county average and an average of the
historical county average. The weighted production standard is already
approved in the Indiana program and the adjustment of this standard by
county average data is reasonable. Thus the Director finds that the
proposed method for calculating success standards on nonprime farmland
pasture at 310 IAC 12-5-64.1/128.1(c)(3)(C) is no less effective than
the Federal requirements for success standards at 30 CFR 816/
817.116(a)(2).
4. Subsection (c)(3)(D)/(c)(5)(D); Other Success Standards. Indiana
is proposing to revise the language in the provisions moved from
subsections (c)(3)(C) and (c)(5)(C) to new subsections (c)(3)(D) and
(c)(5)(D), respectively. These provisions allow other success standards
approved by the director of the Indiana Department of Natural Resources
(IDNR) to be used in determining success of production of living plants
on revegetated nonprime farmland pasture land and cropland areas. The
provisions in (c)(3)(C) and (c)(5)(C) were previously approved by OSM
on May 29, 1992 (57 FR 22655). The proposals would change the words
``Other success standards'' to ``Other methods.'' The ``methods''
referred to are methods to determine success standards. Therefore, the
modifications to the relocated provisions at (c)(3)(D) and (c)(5)(D)
are not substantial changes from what was previously approved at
(c)(3)(C) and (c)(5)(C).
The Federal regulations at 30 CFR 816/817.116(a)(1) require that
standards for success and statistically valid sampling techniques for
measuring success shall be selected by the regulatory authority and
included in an approved regulatory program. In letters dated March 20,
1992 (Administrative Record Nos. IND-1051 and IND-1052), Indiana stated
that the IDNR will request approval by OSM for other standards prior to
their use in the Indiana program if they vary significantly from the
approved standards.
Based on the above discussion, the Director is approving the
provisions at 310 IAC 12-5-64.1/128.1(c)(3)(D) and 12-5-64.1/
128.1(c)(5)(D).
5. Redesignations. Existing subsections (c)(5) are redesignated
subsections (c)(4) without any changes to the provisions. These
subsections concern stocking levels and success standards for
vegetation on areas to be developed as shelter belts or for fish and
wildlife habitat, recreation or forestry land use.
Existing subsections (c)(6) are redesignated subsections (c)(5)
with changes. The changes to redesignated (c)(5) are discussed in
finding No. 4 and finding No. 6. These subsections concern the success
standards for production on revegetated cropland areas.
Existing subsections (c)(7) are redesignated subsections (c)(6).
Indiana is proposing to relocate the provision in existing subsections
(c)(7), which requires that if the current Natural Resources
Conservation Service predicted yield by soil map units is used to
determine production of living plants then the standard for success
shall be a weighted average of the predicted yields for each unmined
soil type which existed on the permit areas at the time the permit was
issued, to redesignated subsections (c)(5)(B). Indiana is also
proposing to redesignate from existing subsections (c)(7) to
[[Page 47694]]
subsections (c)(5)(E) the provision which requires that once the method
for establishing the standards has been selected, it may not be
modified without the approval of the director of IDNR.
Existing subsections (c)(8) are redesignated subsections (c)(7)
without change. These subsections concern revegetation success where
barren areas exist within an area under evaluation.
The Director finds the proposed redesignations do not render the
Indiana regulations less effective than the Federal regulations.
6. Subsections (c)(5); Cropland Production Success Standards
Methodology. Indiana is proposing to delete the provision in existing
subsections (c)(6)(C) for determining production of living plants on
cropland and is proposing to add the following provision to
redesignated subsections (c)(5)(C).
(C) A target yield determined by the following formula: Target
Yield = CCA x (NRCSP/NRCSC) where: CCA = the county average for
the crop for the year being evaluated as reported by the United
States Department of Agriculture crop reporting service, the Indiana
Agricultural Statistics Service. NRCSP = the weighted average of the
current Natural Resources Conservation Service predicted yield for
each croppable, unmined soil which existed on the permit at the time
the permit was issued. NRCSC = the weighted average of the current
Natural Resources Conservation Service predicted yield for each
croppable, unmined soil which is shown to exist in the county on the
most current county soil survey. A croppable soil is any soil which
the Natural Resources Conservation Service has defined as being in
capability class I, II, III, or IV.
The Federal regulations at 30 CFR 816/817.116(a)(2) require that
standards for success shall include criteria representative of unmined
lands in the area being reclaimed to evaluate the appropriate
vegetation parameters of ground cover, production, or stocking. The
above discussion in finding No. 3, pertaining to Indiana's average
county yield data containing data of yields from previously mined lands
is also relevant to this proposed revision. As discussed in finding No.
3, the Director had previously found that the use of Indiana's average
county yield data as a correction factor was not inconsistent with the
Federal regulations.
Indiana's currently proposed methodology would modify the county
average by a factor that uses the NRCS predicted standard for permitted
unmined soils and a NRCS predicted standard that excludes mined land.
Therefore, the Director is approving the provisions proposed at 310 IAC
12-5-64.1/128.1(c)(5)(C).
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. No comments
were received from these agencies.
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.). The
Director has determined that this amendment contains no provisions in
these categories and that EPA's concurrence is not required.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA. On June 15, 1995 (Administrative Record
No. IND-1489), EPA responded that it concurred on the proposed
amendment without comment.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP. No comments were received.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Indiana on May 3, 1995.
The Director approves, as discussed in: finding No. 3, the
provisions at 310 IAC 12-5-64.1/128.1(c)(3)(C), concerning a
methodology for determining the success of production of living plants
on nonprime pasture land areas; finding No. 4, the provisions at 310
IAC 12-5-64.1/128.1(c)(3)(D) and 12-5-64.1/128.1(c)(5)(D), concerning
the director of IDNR's approval of other success standards to be used
in determining success of production of living plants on revegetated
nonprime farmland pasture land and cropland areas; finding No. 6, 310
IAC 12-5-64.1/128.1(c)(5)(C), concerning a methodology for determining
the success of production of living plants on nonprime cropland areas.
The Federal regulations at 30 CFR Part 914, codifying decisions
concerning the Indiana program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
unilateral changes to approved State programs. In the oversight of the
Indiana program, the Director will recognize only the statutes,
regulations and other materials approved by OSM, together with any
consistent implementing policies, directives and other materials, and
will require the enforcement by Indiana of only such provisions.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and
[[Page 47695]]
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 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: September 7, 1995.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 914--INDIANA
1. The authority citation for Part 914 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 914.15 is amended by adding paragraph (kkk) to read as
follows:
Sec. 914.15 Approval of regulatory program amendments.
* * * * *
(kkk) The following rules, as submitted to OSM on May 3, 1995, are
approved effective September 14, 1995:
310 IAC 12-5-64.1(c) and 310 IAC 12-5-128.1(c) concerning standards
for success for nonprime farmland for surface and underground coal
mining reclamation operations.
[FR Doc. 95-22866 Filed 9-13-95; 8:45 am]
BILLING CODE 4310-05-M
