[Federal Register Volume 59, Number 206 (Wednesday, October 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26464]
[[Page Unknown]]
[Federal Register: October 26, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
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 (AMLR) Plan (hereinafter referred to as the
``Indiana plan'') under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). The amendment is intended to revise the Indiana plan
to allow the State to assume responsibility for administering an
emergency response reclamation program in Indiana on behalf of OSM.
EFFECTIVE DATE: October 26, 1994.
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, IN
46204, Telephone (317) 226-6166.
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 conditionally
approved the Indiana plan. Background information on the Indiana plan,
including the Secretary's findings, the disposition of comments, and
the approval of the Indiana plan can be found in the July 26, 1982,
Federal Register (47 FR 32110). Subsequent actions concerning the
conditions of approval and amendments to the plan can be found at 30
CFR 914.20 and 914.25.
II. Submission of the Proposed Amendment
Section 410 of SMCRA authorizes the Secretary to use funds under
the AMLR program to abate or control emergency situations in which
adverse effects of past coal mining pose an immediate danger to the
public health, safety, or general welfare. On September 29, 1982 (47 FR
42729), OSM invited States to amend their AMLR Plans for the purpose of
undertaking emergency reclamation programs on behalf of OSM. States
would have to demonstrate that they have the statutory authority to
undertake emergencies, the technical capability to design and supervise
the emergency work, and the administrative mechanisms to quickly
respond to emergencies either directly or through contractors.
Under the provisions of 30 CFR 884.15, any State may submit
proposed amendments to its approved AMLR Plan. If the proposed
amendments change the scope or major policies followed by the State in
the conduct of its AMLR program, the Director must follow the
procedures set out in 30 CFR 884.14 in reviewing and approving or
disapproving the proposed amendments.
The proposed assumption of the AMLR emergency program on behalf of
OSM is a major addition to the Indiana AMLR plan. Therefore, to asume
the emergency program, Indiana must revise the Indiana Plan to include
conducting the AML emergency program.
By letter received November 17, 1992 (Administrative Record No.
IND-1171), the Indiana Department of Natural Resources (IDNR), Division
of Reclamation, submitted a proposed Program Amendment to the Indiana
Program. The amendment describes the specific procedures which Indiana
will follow to investigate, reclaim and document emergency reclamation
activities in the State. The amendment also describes the realty and
environmental compliance activities that will support this function of
the State's AMLR program.
OSM published an announcement of proposed rulemaking on the Indiana
amendment and requested public comment on January 14, 1993 (58 FR
4374). The public comment period closed on February 16, 1993.
On March 26, 1993 (58 FR 16379), OSM published a correction of the
address of the Indiana Department of Natural Resources (IDNR) which was
printed in the January 14, 1993, proposed rule document.
On October 29, 1993 (Administrative Record Number IND-1303), OSM
received from Indiana a revised version of the Indiana plan amendment.
The proposed revisions were intended to address OSM's comments on the
original amendment. OSM published an announcement of the proposed
revisions to the initial submittal of the Indiana plan amendment and
reopened the public comment period on December 6, 1993 (58 FR 64212).
The public comment period closed on December 20, 1993.
By letter dated June 27, 1994 (Administrative Record Number IND-
1381) Indiana submitted a second revised version of the Indiana plan
amendment. The proposed revision contains two changes which are
intended to address OSM's comments on the October 29, 1993 revised
version of the Indiana plan amendment.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 884.14 and 884.15, are the Director's findings concerning the
proposed amendment.
Revisions not specifically discussed below concern nonsubstantive
wording changes, or revise cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
The following information is contained in Indiana's formal
submission to OSM pursuant to the guidelines published in the Federal
Register, 47 FR 42729 (September 29, 1982), as to its authority and
procedures for implementing an emergency response reclamation program
based on the provisions in Section 410 of the Surface Mining Control
and Reclamation Act of 1977, Pub. L. 95-87 (SMCRA).
1. The agency designated by the Governor as authorized to receive
grants and administer an emergency program.
2. A legal opinion from the chief legal officer that the designated
agency has the authority under State law to conduct the emergency
program in accordance with the requirements of Section 410 of Title IV
of the Act.
3. A description of the policies and procedures to be followed by
the designated agency in conducting the reclamation program including:
a. The purpose of the emergency response reclamation activities
to be undertaken by the Indiana Department of Natural Resources,
Division of Reclamation is to enter upon any land where an emergency
exists and on any other land to have access to the land where the
emergency exists and restore, reclaim, abate, control or prevent the
adverse effect of coal mining practices and to do all things
necessary or expedient to protect the public health, safety, or
general welfare. For the purposes of this plan amendment emergency
is defined as a sudden danger or impairment that presents a high
probability of substantial physical harm to the health, safety, or
general welfare of people before the danger can be abated under
normal program operation procedures.
b. The Indiana Department of Natural Resources will assume
authority for all emergency projects within Indiana and will
coordinate work with the Federal Office of Surface Mining
Reclamation and Enforcement (OSM). Coordination with other state or
local agencies will be on a project specific basis. The Department
of Administration will be a key component in the procurement of
goods and services for emergency work. Assistance is also available
from the Indiana Department of Transportation and the Indiana State
Emergency Management Agency.
All investigations and eligibility findings required by Title IV
of SMCRA will be conducted by the Division of Reclamation. This
information on emergency investigations will be provided to OSM.
Once OSM makes a finding of fact that an emergency situation exists,
the state will undertake the specific construction efforts approved
by OSM to abate the declared emergency situation.
c. Land acquisition for emergency projects will follow the
guidelines as stated in Indiana's approved State Plan. The state
will acquire lands in emergency situations where no other practical
means are available to abate an immediate threat to the health,
safety or general welfare of its citizens. Policies, procedures and
authority to acquire lands is clearly detailed in the approved State
Plan in the sections entitled Land Acquisition, Management and
Disposal. Indiana does not consider land acquisition to be a
preferred step in reclamation projects and will therefore proceed
with this option only under unique circumstances.
d. The policies and procedures for emergency reclamation on
private and public lands will be the same as for other AML
reclamation activities and detailed in the approved State Plan at
884.13(c)(5) and (6).
e. The Indiana Department of Natural Resources may enter on any
land where an emergency exists or on adjacent lands for access, in
order to protect the public health, safety or general welfare from
adverse effects of coal mining. It is the policy of the State of
Indiana to respect the rights of private ownership, and the state
will make all reasonable efforts to obtain a written consent from
the owner of record in advance of emergency reclamation. The consent
for right of entry shall be in the form of a signed agreement with
the land owner or the authorized agent.
f. The Indiana Department of Natural Resources will publish a
legal notice in a general circulation newspaper within each county
potentially affected by this emergency program assumption. These
legal notices will provide for a thirty-day comment period and will
include the possibility of conducting public meetings in order to
resolve any issues of general concern. Each notice will include a
statement of availability of this emergency reclamation amendment
package. All comments received on this amendment will be
incorporated by reference to this document and made available to any
interested parties.
4. A description of the administrative and managerial structure to
be used in conducting the emergency reclamation program including:
a. The organizational and management structure to be utilized by
the Division of Reclamation for the emergency program will be the
same as established for the other Title IV AML program operations
and is contained within the approved State Plan. Key positions in
the emergency program operations and their responsibilities are
detailed below.
Inventory Specialist--responsible for initial investigation of
all potential emergency situations. Compiles all pertinent
information at each site to allow for consistent evaluation of the
degree of seriousness and level of response necessary. Conducts
initial coordination with other Division of Reclamation employees as
well as other organizations and/or individuals necessary to insure
proper response, protection and control.
Assistant Director for Restoration Program--makes final
determination for the State on the status of each potential
emergency. Will act as primary contact point for the Division of
Reclamation in relations with the Department of Administration and
the Federal Office of Surface Mining.
Project Manager Supervisor--responsible for insuring that all
emergency abatement contract work is performed by the contractor in
accord with the agreed terms and conditions of the contract. Will
conduct pre-bid meetings with potential contractors if time permits.
Emergency Program Coordinator--The Division of Reclamation
intends to fill this position with a registered professional
engineer who will be capable of coordinating all emergency program
activities as well as providing expert testimony for those program
situations that become subject to litigation. This position will
insure that all requirements of the emergency program are executed
consistently and in accord with all declared policies, plans and
procedures. Additional responsibilities of this position may
include, but will not be limited to: coordination with the
Department of Insurance and the insurance industry on all matters
related to the subsidence insurance program, design engineer for
emergency reclamation, contract and bid officer for securing
emergency reclamation, and field inspector for approval of
reclamation work.
b. The Division of Reclamation does anticipate the need for
additional staff in order to conduct the emergency reclamation
program. The State also reserves the right to add staff in the
future if through practical experience it becomes apparent that need
exists.
Technical skills currently available at the Division of
Reclamation that will be available and utilized in the emergency
reclamation program include: field investigation staff, realty
professionals, subsidence and structural engineers, hydrologists,
soils professionals, construction inspectors, and geologists. Any
and all staff of the Division of Reclamation will be used as needed.
c.i. Administrative procedures for investigating and reporting
emergency complaints will include on-site visitation by a qualified
staff member to make findings of fact and to document through a
written report and photograph the current status of the complaint. A
complaint information gathering guide will aid in complaint
investigation. Emergency response will entail having a qualified
staff member on-site as soon as is practicable. Urgency of the
response time will be determined by the initial description of the
complaint received.
c.ii. As soon as is practical, eligibility information will be
obtained and reported for each potential emergency. This information
will include written determination of: (1) whether the site was
mined for coal; (2) the dates, types, and operations of any and all
mines at the site, and (3) the existence of any continuing
reclamation responsibility at the site. This information will be
provided to the appropriate legal staff in order to allow them to
make an eligibility determination for emergency reclamation. It is
desirable but not necessary to have all required legal documents
completed prior to initiating emergency reclamation activities.
c.iii. All rights of entry and necessary appraisals will be
executed according to the procedures outlined above and as described
in the approved State Plan. It is desirable but not necessary to
have all required realty documents completed prior to initiating
emergency reclamation activities.
c.iv. Administrative procedures for project supervision will be
the responsibility of the assigned project manager and will fit
within the approved administrative structure of the Division of
Reclamation as outlined in the approved State Plan.
c.v. Final project inspection and preparation and submission of
final project reports will be conducted in conjunction with the OSM
Indianapolis field office. The assigned project manager and the
pertinent grants staff of the division of Reclamation will be
responsible for the preparation of all technical, programmatic and
financial reports and documents. Approval by administrative staff of
the Division of Reclamation of all reports to OSM will be required.
d. The purchasing and procurement systems to be used by the
Department of Natural Resources, Division of Reclamation under the
emergency reclamation program will be those currently used for
securing goods and services under other aspects of the AML program,
with the following special conditions:
1. Emergency reclamation will have priority over all other
requests originating within the Division of Reclamation.
2. Purchase orders for emergency work will be ``hand carried''
through the administrative system to allow approval within the
shortest time frame possible.
3. A list of potential contractors and/or suppliers will be
maintained for ready reference quick contact by the Restoration
Section. This list will be updated as necessary to include all
capable potential contractors.
4. In most cases, work will be allowed to proceed on the basis
of verbal approval and a commitment for written follow-up.
5. The Division of Reclamation has developed, and is using, an
emergency reclamation contracting system that expedites the securing
of abatement work.
e. The accounting system to be used by the Division of
Reclamation for the emergency program projects will be the same as
currently utilized for all other AML reclamation projects. Emergency
program accounting will be on a project basis. All emergency project
obligations, payments and drawdowns will be tracked individually and
separately and will be done in accord with Federal requirements.
f. The Division of Reclamation has expertise in the disciplines
necessary to implement the emergency program. Staff engineers have a
great deal of experience in reclamation designs for all types of
problems anticipated to be encountered in the emergency program.
These may include, but are not limited to: filling and/or sealing
mine openings or subsidence, monitoring, grouting under or
stabilizing ground affected by area subsidence or slides, refuse
fires, roadway failures, and flooding due to clogged streams. The
Emergency Program Coordinator will specialize in correction of
emergency events and will be the lead staff person with support from
the expertise of other Division of Reclamation specialists.
Technical consultation will be available to staff from OSM, U.S.
Bureau of Mines, consultants, and the Indiana Division of
Engineering among others.
Technical capability to supervise emergency work is the same as
the Division of Reclamation's project managers currently use to
perform on-site supervision and inspection of other AML projects.
Procedures for field supervision will evolve as Indiana's experience
in emergency reclamation grows. However, the existing field
operations manual provides an excellent starting point of all
emergency reclamation supervision.
5. A general description, derived from available data, of emergency
reclamation activities to be conducted, including known or suspected
geographical areas within the State, including:
a. The OSM has been conducting emergency reclamation for almost
twelve years in the State of Indiana. There have been approximately
190 emergency investigations, with 85 declared or given emergency
status. The majority of all emergency projects have been related to
subsidence (71), while shaft openings (9), slides (4), and refuse
fires (1) account for the balance of declared emergencies. The
distribution by county of both emergency projects and investigations
has been documented.
b. Emergencies related to subsidence have been primarily the
result of small pit type subsidence. This subsidence is customarily
associated with shallow underground mining. The potential for future
emergency reclamation due to subsidence is very large and widespread
in the Indiana coal fields.
6. Narrative description which supports the State's position that
the procedures, personnel and other proposed aspects of its program
give evidence of its abilities to promptly and effectively mitigate the
full range of anticipated emergency conditions:
The objectives of the Indiana abandoned mine land program are to
fulfill the general reclamation objectives set out in Section 403 of
P.L. 95-87. The highest priorities of the program are the protection of
public health, safety and general welfare from dangers resulting from
the adverse effects of past coal mining. The emergency response program
described in this document provides an additional means whereby the
State of Indiana will be able to protect its citizens from these
adverse effects consistent with the intent of Section 410 of P.L. 95-
87. Indiana has the procedures, personnel, and administrative functions
within the Department of Natural Resources to capably and effectively
manage the emergency program as described in the previous sections, and
is willing and able to work with OSM to insure its success.
An additional objective of the State of Indiana in assuming the
administration of the emergency program from OSM is to provide
continued protection to the citizens of this state. The State of
Indiana must secure cooperation from OSM in providing prompt emergency
declaration as well as complete and adequate grant funding to carry out
the work.
In accordance with section 405 of SMCRA, OSM finds that Indiana
submitted an amendment to its AMLR plan, subsequently revised and
clarified, and it has been determined, pursuant to 30 CFR 884.15, that:
1. The State provided adequate notice and opportunity for public
comment in the development of the amendment and the record does not
reflect major unresolved controversies.
2. Views of other Federal agencies having an interest in the plan
have been solicited and considered.
3. The State has the legal authority, policies and administrative
structure necessary to implement the amendment.
4. The proposed plan amendment meets all requirements of the OSM
AMLR program provisions.
5. The State has an approved Surface Mining Regulatory Program.
6. The amendment is in compliance with all applicable State and
Federal laws and regulations.
The Director finds therefore, that the proposed Indiana plan
amendment allowing the State to assume responsibility for an emergency
response reclamation program on behalf of OSM is no less stringent than
SMCRA and no less effective than the Federal regulations and can be
approved.
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 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.
In response to the original submittal (November 17, 1992), the U.S.
Department of Agriculture (USDA), Forest Service responded and stated
that it had no comments.
In response to the December 6, 1993, reopening of the public
comment period, the USDA, Soil Conservation Service (SCS) responded and
stated that they did not see where the proposed language would impact
the Rural Abandoned Mine Program administered by the SCS. The U.S.
Bureau of Mines responded and stated that it has no comment.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the EPA with respect to
any provisions of a State 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 (Administrative Record No. IND-1303). EPA
did not respond to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves the proposed
AMLR plan amendment as submitted by Indiana on November 17, 1992, and
revised on October 29, 1993, and on June 27, 1994.
The Federal regulations at 30 CFR 914.25, codifying decisions
concerning the Indiana plan, are being amended to implement this
decision. This final rule is being made effective October 26, 1994.
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 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 adopted by a specific State or Tribe, not by OSM.
Decisions on proposed State and Tribal 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 the Federal regulations at
30 CFR Parts 884 and 888.
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 the Office of Management and Budget 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.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 19, 1994.
Ed Kay,
Deputy Director.
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. In Section 914.25, paragraph (c) is added to read as follows:
Sec. 914.25 Amendments to approved Indiana abandoned mine land
reclamation plan.
* * * * *
(c) The Indiana plan amendment allowing the State to assume
responsibility for an emergency response reclamation program on behalf
of OSM, as submitted on November 17, 1992, and revised on October 29,
1993, and June 27, 1994, is approved effective October 26, 1994.
[FR Doc. 94-26464 Filed 10-25-94; 8:45 am]
BILLING CODE 4310-05-M
