[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
