[Federal Register Volume 63, Number 188 (Tuesday, September 29, 1998)]
[Rules and Regulations]
[Pages 51827-51829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25979]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[SPATS No. IN-131-FOR; State Program Amendment No. 95-13]
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 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 regulations pertaining to the definition of
``affected area,'' submittal of underground mining operation plans, and
the standards for prime farmland restoration by surface and underground
coal mining operations. The amendment is intended to revise the Indiana
program to be consistent with the corresponding Federal regulations.
EFFECTIVE DATE: September 29, 1998.
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: agilmore@osmre.gov.
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 March 6, 1998 (Administrative Record No. IND-1597),
Indiana submitted a proposed amendment to its program pursuant to
SMCRA. Indiana submitted the proposed amendment in response to the
required program amendment at 30 CFR 914.16(n), 914.16(p), and
914.16(gg) and at its own initiative.
OSM announced receipt of the proposed amendment in the April 6,
1998, Federal Register (63 FR 16725), and in the same document opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the proposed amendment. The
public comment period closed on May 6, 1998. Because no one requested a
public hearing or meeting, none was held.
During its review of the amendment, OSM identified a concern
relating to a technical error at 310 IAC 12-3-78(a)(2), underground
mining and postmining land use. Also, at 310 IAC 12-0.5-6, definition
of ``affected area,'' OSM identified a concern relating to the
exemption criteria in subsection (b). OSM notified Indiana of these
concerns by letter dated July 1, 1998 (Administrative Record No. IND-
1616).
By letter dated July 17, 1998 (Administrative Record No. IND-1618),
Indiana responded to OSM's concerns by stating that the editorial error
at 310 IAC 12-3-78(a)(2) would be corrected as an errata. Indiana also
provided clarification that all the criteria at 310 IAC 12-0.5-6(b)
will be used to determine if a road is exempt from the definition of
``affected area.'' Because no substantive revisions were made to the
amendment, OSM did not reopen the public comment period.
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. 310 IAC 12-0.5-6(a). Indiana amended 310 IAC 12-0.5-6(a) by
replacing the terms ``an'' and ``a'' with the term ``any'' to refer to
sites and areas which would be considered ``affected areas.'' This is
consistent with the use of the term ``any'' in the counterpart Federal
definition of ``affected area'' at 30 CFR 701.5. The Director finds
that the revisions satisfy the requirement placed on the Indiana
program at 30 CFR 914.16(n) and that Indiana's revised language at 310
IAC 12-0.5-6(a) is no less effective than language found at 30 CFR
701.5. Therefore, the Director is approving the revisions and removing
the required amendment.
2. 310 IAC 12-0.5-6(b) and (c). Indiana added language at 310 IAC
12-0.5-6(b) identifying the criteria for exemption of roads included in
the affected area. Subsection (b)(1) requires that the road be
``designated as a public road pursuant to the laws of the jurisdiction
in which it is located.'' Subsection (b)(2) requires that the road be
``maintained with public funds, and constructed in a manner similar to
other public roads of the same classification within the
jurisdiction.'' Subsection (b)(3) requires that the road has
``substantial (more than incidental) public use.'' Subsection (b)(4)
requires that ``the extent and the effect of mining-related uses of the
road by the permittee does not warrant regulation as part of the
surface coal mining and reclamation operation.'' Subsection (c)
requires the director to determine on a case-by-case basis whether a
road satisfies the requirements at 310 IAC 12-0.5-6(b) based on the
mining related use of the road and consistent with Indiana's definition
of ``surface coal mining operations.''
The language at subsections (b)(1), (b)(2), and (b)(3) is
substantively the same as language found in the Federal definition at
30 CFR 701.5. OSM suspended its definition of ``affected area'' at 30
CFR 701.5 insofar as it might limit jurisdiction over roads covered by
the definition of ``surface coal mining operations'' (51 FR 41952,
November 20, 1986). OSM's revised road rules were published on November
8, 1988, 53 FR 45192. In finalizing those rules, OSM declined to add a
reference to ``affected area'' to the definition of road on the basis
that the definition of ``affected area'' as partially suspended no
longer provides additional guidance as to which roads are included in
the definition of surface coal mining operations. At the same time, OSM
declined to expressly exclude public roads from the definition of road.
The preamble stated that OSM is concerned that roads constructed to
serve mining operations not avoid compliance with performance standards
by being deeded to public entities, but it was not OSM's intent to
automatically extend
[[Page 51828]]
jurisdiction into the existing public road network. Instead,
jurisdiction decisions are to be made by the regulatory authorities on
a case-by-case basis. Indiana intends to continue to use the definition
of ``affected area'' in determining which roads are subject to
jurisdiction. The provisions at 310 IAC 12-0.5-6(b)(4) and (c) clarify
when a public road will be regulated and adequately addresses the
concerns OSM expressed in the November 8, 1988, preamble (53 FR 45192)
regarding public roads. The Director finds that Indiana's definition of
``affected area'' is no less effective than the Federal regulations
concerning jurisdiction over public roads and is consistent with the
Federal definition of ``affected area.'' Therefore, the Director is
approving 310 IAC 12-0.5-6(b) and (c).
3. 310 IAC 12-3-78(a). Indiana amended 310 IAC 12-3-78(a) to
require underground permit applications to ``contain a description of
the mining operations proposed to be conducted within the proposed
permit area and the proposed life of the mine area where such
information is necessary to demonstrate that reclamation required by
IC-14-34 can be accomplished by the applicant.'' Subdivisions (1) and
(2) of 310 IAC 12-3-78(a) outline the minimum elements of the required
description. The Director finds that the language at 310 IAC 12-3-78(a)
is substantively the same as that found at 30 CFR 784.11. Therefore,
the Director approves the amendment.
4. 310 IAC 12-3-78(b). Indiana added language at 310 IAC 12-3-78(b)
requiring applicants for underground coal mining and reclamation
permits to submit descriptions, plans, and drawings for all support
facilities within the proposed permit area. The Director finds that
Indiana's language at 301 IAC 12-0.5-6(a) is substantively the same as
the Federal language found at 30 CFR 784.30. Therefore, the Director
approves the amendment.
5. 310 IAC 12-5-98(d)(1). Indiana added language at 310 IAC 12-5-
98(d)(1) that requires the soil profile be determined by the U.S. Soil
Conservation Service. The Director finds that the revision satisfies
the requirement placed on the Indiana program at 30 CFR 914.16(p), and
that Indiana's revised language at 301 IAC 12-5-98(d)(1) is no less
effective than the Federal language at 30 CFR 785.15(c)(1)(ii).
Therefore, the Director is approving the revision and removing the
required amendment.
6. 310 IAC 12-5-145.5. Indiana added a provision at 310 IAC 12-5-
145.5 to require the director to use ``any prime farmland soil-
reconstruction specifications promulgated as rules by the United States
Soil Conservation Service for Indiana'' in order to carry out his or
her responsibilities under 310 IAC 12-3-98 and 310 IAC 12-4. The
Director finds that this provision satisfies the requirement placed on
the Indiana program at 30 CFR 914.16(gg) and that Indiana's requirement
at 301 IAC 12-5-145.5 is no less effective than the Federal language at
30 CFR 823.4. Therefore, the Director is approving Indiana's rule and
removing the required amendment.
IV. Summary and Disposition of Comments
Public Comments
OSM solicited public comments on the proposed amendment. By letter
dated April 30, 1998 (Administrative Record No. IND-1605), the Indiana
Coal Council (ICC) responded that while the Federal regulation at 30
CFR 823.4 does not state that the regulatory authority may use any
promulgated United States Soil Conservation Service prime farmland
soil-reconstruction specifications as rules, the language at 310 IAC
12-5-145.5 is still not substantively different from the Federal rule.
ICC points out that a U.S. District Court for the District of Columbia
ruled that the SCS soil reconstruction specifications required by SMCRA
qualify as rules and therefore must be subject to public review.
Further, the Court noted that OSM agreed and advised SCS to publish its
proposed standards for public review. ``Therefore the effect of the
additional language in the proposed Indiana rule is simply to conform
the substance of the rule to the Federal rule as interpreted by the
Office of Surface Mining and the courts.'' ICC believes the amendment
should be approved.
OSM agrees that the language at 310 IAC 12-5-145.5 conforms to the
judicial and agency interpretation of 30 CFR 823.4. Furthermore, the
language used at 310 IAC 12-5-145.5 is identical to the language
required at 30 CFR 914.16(gg). The Director is approving the revision.
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. By letter dated
April 17, 1998 (Administrative Record No. IND-1604), the U.S. Fish and
Wildlife Service responded that it has no comments on IN-131-FOR.
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 the EPA's concurrence.
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from the EPA (Administrative Record No. 1600). The
EPA did not respond to OSM's request.
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.
1600). Neither the SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves the amendment as
submitted by Indiana on March 6, 1998.
The Director approves the regulations as proposed by Indiana with
the provision that they be fully promulgated in identical form to the
regulations submitted to and reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 914, codifying decisions
concerning the Indiana program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
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 12988
The Department of the Interior has conducted the reviews required
by
[[Page 51829]]
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 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 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.
Unfunded Mandates
OSM has determined and certifies pursuant to 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: September 14, 1998.
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.
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Original amendment submission Date of final
date publication Citation/description
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* * * *
* * *
March 6, 1998................. September 29, 310 IAC 12-0.5-6(a)
1998. through (c); 12-3-
78(a) and (b); 12-5-
98(a), (c) and (d);
and 12-5-145.5.
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3. Section 914.16 is amended by removing and reserving paragraphs
(n), (p), and (gg).
[FR Doc. 98-25979 Filed 9-28-98; 8:45 am]
BILLING CODE 4310-05-P
