[Federal Register Volume 61, Number 70 (Wednesday, April 10, 1996)]
[Rules and Regulations]
[Pages 15891-15895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8920]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[SPATS No. IN-133-FOR; Amendment No. 95-11]
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 additional requirements, a proposed
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 the
Indiana Surface Coal Mining and Reclamation Act (ISCMRA) as enacted by
the Indiana General Assembly (1995) in House Enrolled Act 1575 (HEA
1575). The proposed amendment concerns lands eligible for remining,
responsibilities of the director of Indiana Department of Natural
Resources (IDNR), and surface and underground tonnage fees. The
amendment is intended to revise the Indiana program to be consistent
with SMCRA and to incorporate State initiatives. The proposed revisions
concerning lands eligible for remining are intended to provide
incentives for the remining and reclamation of previously mined and
inadequately reclaimed lands eligible for expenditures under section
402(g)(4) or 404 of SMCRA as provided for by the Energy Policy Act of
1992.
EFFECTIVE DATE: April 10, 1996.
FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director,
Indianapolis Field Office, Office of Surface Mining Reclamation and
Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania
[[Page 15892]]
Street, Room 301, Indianapolis, Indiana 46204-1521, Telephone (317)
226-6700.
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. 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 Proposed Amendment
By letter dated September 11, 1995 (Administrative Record No. IND-
1509), Indiana submitted a proposed amendment to its program pursuant
to SMCRA. Indiana submitted the proposed amendment at its own
initiative. HEA 1575 amends ISCMRA by adding new sections and revising
existing sections to recodified Indiana Code (IC) 14-8 and 14-34. The
proposed amendment adds new definitions for lands eligible for remining
at IC 14-8-2-144.5 and unanticipated event or condition at IC 14-8-2-
285.5; amends recodified IC 14-34-2-4, Responsibilities of the director
of IDNR; adds IC 14-34-4-8.5, Permit finding concerning an
unanticipated event or condition on lands eligible for remining; adds
IC 14-34-4-10.5, Permit application requirement concerning
unanticipated events or conditions; amends recodified IC 14-34-10-
2(b)(23), Revegetation responsibility periods; amends recodified IC 14-
34-13-1, Reclamation fee requirement for surface coal mining
operations; amends recodified IC 14-34-13-2, Reclamation fee
requirement for underground coal mining operations; and amends
recodified IC 14-34-19-2, Lands and water eligible for reclamation or
drainage abatement expenditures. The recodification of the current
provisions of ISCMRA is proposed in Indiana's Program Amendment No. 95-
10, and it is discussed in a separate final rule.
OSM announced receipt of the proposed amendment in the January 22,
1996, Federal Register (61 FR 1549), 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 February 21, 1996.
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.
Revisions not specifically discussed below concern nonsubstantive
wording changes, or revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
1. IC 14-8-2-144.5 Definition of ``Lands Eligible for Remining''
Indiana proposed a definition at IC 14-8-2-144.5 to define the term
``lands eligible for remining'' to mean those lands that are eligible
for funding under IC 14-34-19 or section 402(g)(4) of SMCRA.
Section 701(34) of SMCRA defines the term ``lands eligible for
remining'' to mean those lands that would otherwise be eligible for
expenditures under section 404 or 402(g)(4) of SMCRA. Indiana's statute
at IC 14-34-19 that is referenced in its definition is the State
counterpart provision to section 404 of SMCRA in the Federal
definition. Therefore, the Director finds that Indiana's proposed
definition of ``lands eligible for remining'' at IC 14-8-2-144.5 is no
less stringent than the definition at section 701(34) of SMCRA.
2. IC 14-8-2-285.5 Definition of ``Unanticipated Event or Condition''
Indiana proposed a definition of ``unanticipated event or
condition'' at IC 14-8-2-285.5 that is substantively identical to the
Federal definition at section 701(33) of SMCRA. Therefore, the Director
finds that the proposed definition at IC 14-8-2-285.5 is no less
stringent than SMCRA.
3. IC 14-34-2-4(a)(7) and (b) Responsibilities of the Director of IDNR
Indiana proposed to amend recodified IC 14-34-2-4 [previously IC
13-4.1-2-2(b)] by adding new paragraph (7) to subsection (a) and adding
new subsection (b). At IC 14-34-2-4(a)(7) and (b), Indiana is proposing
to allow the Director of IDNR to submit formal state program amendments
to OSM only after the amendment has been approved by the governor of
Indiana or has become law.
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, the Federal regulation at 30 CFR 732.17(g)
requires that proposed changes to laws or regulations that make up the
approved State program be submitted to the Director as an amendment and
that they shall not take effect for purposes of a State program until
approved as an amendment. However, neither SMCRA nor the Federal
regulations contain specific requirements regarding the administrative
or legislative procedures in the State for rulemaking. Therefore, since
the Director of IDNR must still submit formal State program amendments
to OSM, the Director finds the proposed revisions at IC 14-34-2-4(a)(7)
and (b) do not render the Indiana program less stringent than SMCRA or
less effective than the Federal regulations.
4. IC 14-34-4-8.5 Permit Findings
Indiana is proposing that the finding required by IC 14-34-4-
7(a)(6) and prohibition on the issuance of a permit in IC 14-34-4-8 do
not apply to a violation resulting from an unanticipated event or
condition at a surface coal mining operation on lands eligible for
remining under a permit held by the applicant.
The proposed provision at IC 14-34-4-8.5 is consistent with the
provisions in section 510(e) of SMCRA, which establishes an exemption
from the permit blocking provisions of section 510(c) of SMCRA for any
violation resulting from an unanticipated event or condition occurring
on a remining site, with two exceptions. First, Indiana did not propose
a counterpart to SMCRA's limiting language ``after the date of
enactment of this subsection'' that specified when a violation must
have occurred to be eligible for the exemption. The permit block
exemption in section 510(e) of SMCRA applies to violations that
occurred subsequent to October 24, 1992. Second, Indiana did not limit
the authority of IC 14-34-4-8.5 to September 30, 2004. Section 510(e)
of SMCRA specifies that its authority terminates on September 30, 2004.
The Federal implementing regulation at 30 CFR 773.15(b)(4)(i)(C)
qualified this termination requirement by specifying that the
prohibitions do not apply to permits issued before September 30, 2004,
or any renewals thereof.
Since IC 14-34-4-8.5 is consistent with the other provisions and
the intent of section 510(e) of SMCRA, the Director is approving it
with the requirement that Indiana propose implementing regulations that
include the two limiting provisions. Indiana is to propose implementing
regulations consistent
[[Page 15893]]
with the Federal regulation at 30 CFR 773.15(b)(4)(i), as added on
November 27, 1995 (60 FR 58480), that limits the permit block exemption
to those violations that occur after October 24, 1992, and to those
permits issued before September 30, 2004, or any renewals thereof.
5. IC 14-34-4-10.5 Permit Application Requirement for Remining
Operations
The proposed statute at IC 14-34-4-10.5 authorizes Indiana to
require identification of potential problems in a permit application
for lands eligible for remining. Indiana proposed to add subsection (a)
to require that an applicant make a good faith effort to identify
potential problems that may result in an unanticipated event or
condition in the permit application. Subsection (b) specifies that ``an
event or condition that arises despite substantial adherence to the
applicable operation and reclamation plan may be considered
unanticipated if it was not identified in the application for the
governing permit.''
There is no direct counterpart language in section 510(e) of SMCRA.
However, the Federal regulations at 30 CFR 773.15(b)(4), 773.15(c)(13),
and 785.25 were developed to implement the ``unanticipated event or
condition'' provisions of section 510(e) of SMCRA pertaining to permit
applications for lands eligible for remining. Sections
773.15(c)(13)(ii) and 785.25(b)(1) contain language similar to IC 14-
34-4-10.5(a) by requiring the permit application to identify potential
environmental and safety problems related to prior mining activity at
the site. Therefore, the Director finds that the proposed statute at IC
14-34-4-10.5 is not inconsistent with SMCRA. However, the Federal
regulations contain additional requirements not considered in the
Indiana statute, and he is approving it with the requirement that
Indiana amend its program to provide implementing regulations
consistent with the Federal regulations.
The Director is requiring Indiana to amend its regulations at 310
IAC 12-3-112 consistent with 30 CFR 773.15(b)(4), pertaining to review
of violation requirements and with 30 CFR 773.15(c)(13), pertaining to
written findings for permit application approval, as added on November
27, 1995 (60 FR 58480). He is also requiring Indiana to amend its
regulations at 310 IAC 12-3 consistent with 30 CFR 785.25 (a) through
(c), pertaining to permitting requirements for lands eligible for
remining, as added on November 27, 1995 (60 FR 58480).
6. IC 14-34-10-2(b)(23) Revegetation Responsibility Periods
a. IC 14-34-10-2(b)(23)(A). Indiana proposed to amend recodified IC
14-34-10-2(b)(23) [previously IC 13-4.1-8-1(20)] by limiting the
requirement for 5 years of revegetation responsibility to those lands
not eligible for remining by adding the language ``on lands not
eligible for remining'' to the existing provision pertaining to a 5-
year responsibility period. This provision was designated subdivision
(23)(A). Although not specifically stated, the 5-year revegetation
responsibility period requirement in section 515(20)(A) of SMCRA also
pertains to lands not eligible for remining. Therefore, the Director
finds IC 14-34-10-2(b)(23)(A) is no less stringent than section
515(20)(A) of SMCRA.
b. IC 14-34-10-2(b)(23)(B). Indiana proposed to add new subdivision
(23)(B) that allows a 2-year responsibility period for lands eligible
for remining. Section 515(20)(B) of SMCRA and the amended implementing
Federal regulations at 30 CFR 816/817.116(c)(2)(ii) also allow a 2-year
responsibility period for lands eligible for remining. However, section
510(e) of SMCRA specifies that the authority of section 515(b)(20)(B)
shall terminate on September 30, 2004. The Federal implementing
regulations at 30 CFR 816/817.116(c)(2)(ii) qualify this termination
requirement by specifying permits issued before September 30, 2004, or
any renewals thereof. The proposed Indiana statute does not contain
this termination language.
Since IC 14-34-10-2(b)(23)(B) is consistent with the other
provision language and the intent of section 515(b)(20)(B) of SMCRA,
the Director is approving it with the requirement that Indiana propose
implementing regulations that contain the termination language. Indiana
is to amend its regulations at 310 IAC 12-4-7, period of liability, by
proposing provisions consistent with the Federal regulations at 30 CFR
816/817.116(c)(2)(ii), as added on November 27, 1995 (60 FR 58480),
pertaining to the 2-year revegetation period of responsibility for
lands eligible for remining and to the limitation of the provisions to
permits issued before September 30, 2004, or any renewals thereof.
7. IC 14-34-13-1 Reclamation Fee for Surface Coal Mining Operations
and IC 14-34-13-2 Reclamation Fee for Underground Coal Mining
Operations
Indiana proposed to amend recodified IC 14-34-13 [previously IC 13-
4.1-3-2]. Indiana proposed to limit the provision at IC 14-34-13-1 to
surface coal mining operations, to change the reclamation fee for
surface coal mining operations from five and one-half cents per ton of
coal produced to three cents, and to remove the language which required
fees to be paid only until July 1, 1995. Indiana proposed to add a new
provision at IC 14-34-13-2(a) pertaining to reclamation fees for
underground coal mining operations with support facilities located
within Indiana and to change the reclamation fee for these operations
from five and one-half cents per ton of coal produced to two cents.
Indiana also proposed to remove the language which required fees to be
paid only until July 1, 1995, from its existing provision in IC 14-34-
13-2 and to redesignate it as subsection (b). This provision requires
underground coal mining operations that have no support facilities
located within Indiana but produce coal from reserves located within
Indiana to pay a reclamation fee of one cent per ton of coal produced.
The fees from surface and underground coal mining operations are
deposited into the natural resources reclamation division fund for
administration of the Indiana program.
Section 507(a) of SMCRA provides that an application for a surface
coal mining and reclamation permit shall be accompanied by a fee
determined by the regulatory authority. Such fee may be less than, but
shall not exceed the actual or anticipated cost of reviewing,
administering, and enforcing the permit. The regulatory authority may
develop procedures to allow the fee to be paid over the term of the
permit. After a review of the projected income from the proposed fees,
the Director finds that the income will be less than the anticipated
cost of reviewing, administering, and enforcing permits under the
Indiana program. Therefore, the proposed changes in Indiana's
provisions at IC 14-34-13-1 and IC 14-34-13-2 pertaining to permit fee
amounts do not render these previously approved sections less stringent
than section 507(a) of SMCRA.
8. IC 14-34-19-2 Eligibility of Lands for Reclamation and Restoration
Under the Abandoned Mine Land Program
Indiana proposed to amend recodified IC 14-34-19-2 [previously IC
13-4.1-15-2] by designating the existing language as subsection (a) and
by adding new subsection (b). New subsection (b) specifies that
``surface coal mining operations on lands eligible for remining do not
affect the eligibility of the lands for reclamation and restoration
under this chapter after the
[[Page 15894]]
release of the bond or deposit for the operation under IC 14-34-6.''
The language in the new provision at IC 14-34-19-2(b) is
substantively identical to the Federal counterpart provision in section
404 of SMCRA. Therefore, the Director finds the proposed revisions to
IC 14-34-19-2 do not render it less stringent than section 404 of
SMCRA, and he is approving them.
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 (Administrative
Record No. IND-1514). No comments were received.
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.).
None of the revisions that Indiana proposed to make in this amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. IND-1514). EPA
did not respond.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record No.
IND-1514). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with additional
requirements, the proposed amendment as submitted by Indiana on
September 11, 1995.
The Director approves, as discussed in: finding No. 1, IC 14-8-2-
144.5, concerning a definition of ``lands eligible for remining'';
finding No. 2, IC 14-8-2-285.5, concerning a definition of
``unanticipated event or condition''; finding No. 3, IC 14-34-2-4(a)(7)
and (b), concerning responsibilities of the director of IDNR; finding
No. 6.a., IC 14-34-10-2(b)(23)(A), concerning a 5-year revegetation
responsibility period; finding No. IC 14-34-13-1 and 2, concerning
reclamation fees for surface and underground coal mining operations;
and finding No. 8, IC 14-34-19-2, concerning eligibility of lands for
reclamation and restoration under the abandoned mine land program.
With the requirement that Indiana further revise its rules, the
Director approves, as discussed in: finding No. 4, IC 14-34-4-8.5,
concerning violations resulting from an unanticipated event or
condition occurring on a remining site; finding No. 5, IC 14-34-4-10.5,
concerning identification of potential problems in a permit application
for lands eligible for remining; and finding No. 6.b, IC 14-34-10-
2(b)(24), concerning a 2-year revegetation responsibility period for
lands eligible for remining.
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the requirement amendment section at 30
CFR 914.16 that, within 60 days of the publication of this final rule,
Indiana must either submit a proposed written amendment, or a
description of an amendment to be proposed that meets the requirements
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is
consistent with Indiana's established administrative or legislative
procedures.
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 effectively 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) provide that an
amendment shall not take effect for purposes of a State program until
approved by OSM. 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 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
[[Page 15895]]
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: April 3, 1996.
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 (ppp) to read as
follows:
Sec. 914.15 Approval of regulatory program amendments.
* * * * *
(ppp) The amendment submitted by Indiana to OSM by letter dated
September 11, 1995, is approved effective April 10, 1996.
3. Section 914.16 is revised to add paragraph (hh) to read as
follows:
Sec. 914.16 Required program amendments.
* * * * *
(hh) By June 10, 1996, Indiana shall submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption of proposed revisions to the Indiana
program to provide implementing regulations for IC 14-34-4-8.5,
concerning violations resulting from an unanticipated event or
condition occurring on a remining site; IC 14-34-4-10.5, concerning
identification of potential problems in a permit application for lands
eligible for remining; and IC 14-34-10-2(b)(24), concerning a 2-year
revegetation responsibility period for lands eligible for remining.
Specifically, Indiana shall amend 310 IAC 12-3-112 by adding a
counterpart to 30 CFR 773.15(b)(4) and 30 CFR 773.15(c)(13), as added
on November 27, 1995 (60 FR 58480); shall amend 310 IAC 12-3 by adding
a counterpart to 30 CFR 785.25, as added on November 27, 1995 (60 FR
58480); and shall amend 310 IAC 12-4-7 by adding counterpart to 30 CFR
816/817.116(c)(2)(ii), as added on November 27, 1995 (60 FR 58480).
[FR Doc. 96-8920 Filed 4-9-96; 8:45 am]
BILLING CODE 4310-05-M
