[Federal Register Volume 69, Number 228 (Monday, November 29, 2004)]
[Rules and Regulations]
[Pages 69280-69287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26196]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[Docket No. IN-141-FOR]
Indiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are approving, with an additional requirement, an amendment to
the Indiana regulatory program (Indiana program) under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Indiana
proposed revisions to and additions of rules about definitions,
identification of interests, topsoil, siltation structures,
impoundments, refuse piles, prime farmland, lands eligible for
remining, permitting, performance bond release, surface and ground
water monitoring, roads, inspection, and civil penalties. Indiana
intends to revise its program to be consistent with the corresponding
Federal regulations, clarify ambiguities, and improve operational
efficiency.
DATES: Effective: November 29, 2004.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field
Division. Telephone: (317) 226-6700. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Indiana Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Indiana Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Indiana program effective July 29, 1982. 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 32071). You
can also find later actions concerning the Indiana program and program
amendments at 30 CFR 914.10, 914.15, 914.16, and 914.17.
II. Submission of the Amendment
By letter dated May 19, 2004 (Administrative Record No. IND-1726),
the Indiana Department of Natural Resources, Division of Reclamation
(Indiana or IDNR) sent us an amendment to its program under SMCRA (30
U.S.C. 1201 et seq.). Indiana sent the amendment in response to a June
17, 1997, letter (Administrative Record No. IND-1575) that we sent to
Indiana in accordance with 30 CFR 732.17(c) and in response to the
required program amendments at 30 CFR 914.16(f), (s), and (hh) through
(mm). The amendment also included changes made at Indiana's own
initiative.
We announced receipt of the proposed amendment in the July 19,
2004, Federal Register (69 FR 42931). 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. We did not hold a
public hearing or meeting because no one requested one. The public
comment
[[Page 69281]]
period ended on August 18, 2004. We received comments from one Federal
agency.
During our review of the amendment, we identified concerns about
inspection of abandoned sites and several editorial-type errors. We
notified Indiana of these concerns by letter dated July 26, 2004,
(Administrative Record No. IND-1732).
By letter dated September 14, 2004 (Administrative Record No. IND-
1733), Indiana responded to our July 26, 2004, letter. Indiana intends
to make changes to its inspection of abandoned sites rule and to
correct the editorial-type errors through the errata and program
amendment processes at a later date. Therefore, we are proceeding with
this final rule Federal Register document.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment with an additional requirement as described
below.
A. Minor Revisions to Indiana's Rules
Indiana proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to the following previously-
approved rules:
312 Indiana Administrative Code (IAC) 25-4-17(a)(1), Surface mining
permit applications--identification of interests; 25-4-115(a)(3),
Permit approval or denial; 25-4-118(8), Permit conditions; 25-6-
17(b)(2)(J), Surface mining-siltation structures; 25-6-23(a)(2),
Surface mining-surface and ground water monitoring; and 25-7-1(a)(1)
and (d)(2), Inspections of sites.
Because these changes are minor, we find that they will not make
Indiana's rules less effective than the corresponding Federal
regulations.
B. Revisions to Indiana's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
Indiana's rules listed in the table below contain language that is
the same as or similar to the corresponding sections of the Federal
regulations.
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Federal Regulation
Topic State Rule 312 IAC 30 CFR
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Definition of lands eligible 25-1-75.5........... 701.5.
for remining.
Definition of unanticipated 25-1-155.5.......... 701.5.
event or condition.
Prime farmland.............. 25-4-102(d)(1), (e), 785.17(c)(1),
(f). (d)(4), (e).
Performance bond release.... 25-5-16(b), (c)..... 800.40(a)(3), (b).
Surface mining and 25-6-17(a)(3), 816.46(b)(3),
underground mining; (d)(2), (d)(3); 25- (c)(2);
hydrologic balance; 6-81(a)(3), (d)(2), 817.46(b)(3),
siltation structures. (d)(3). (c)(2).
Surface mining and 25-6-20(a), (c); 25- 816.49(a), (c);
underground mining; 6-84(a), (c). 817.49(a), (c).
hydrologic balance;
permanent and temporary
impoundments.
Civil penalties; hearing 25-7-20............. 845.19(a).
request.
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Because the above State rules have the same meaning as the
corresponding Federal regulations, we find that they are no less
effective than the Federal regulations. We also find that Indiana's
revisions at 25-6-20(a)(9)(E) and 25-6-84(a)(9)(E) that change the term
``subsection'' to the term ``clause'' in the phrase ``the following
impoundments shall be exempt from the examination requirements of this
subsection'' satisfy the required amendment at 30 CFR 914.16(ii)(3),
and we are removing it.
C. 312 IAC 25-1-8 Definition of Affected Area
1. 312 IAC 25-1-8(a)(1) through (7). Indiana designated the
existing provision as subsection (a) and amended the definition of
``affected area'' to mean ``any land or water surface area that is used
to facilitate, or is physically altered by, surface coal mining and
reclamation operations.'' Subdivisions (a)(1) through (7) specify those
areas of a permit that will be considered affected areas. At
subdivisions (a)(2), (4), and (6), Indiana replaced the terms ``an''
with the term ``any'' to refer to areas that would be considered
``affected areas.'' At subdivision (a)(3), Indiana added the word
``any'' before the word ``adjacent.'' At subdivision (a)(4), Indiana
added the language ``except as provided in this section'' at the end of
the subdivision. Indiana restructured subdivision (a)(5) and changed
the words ``a site'' to ``any area.'' At subdivision (a)(6), Indiana
made minor wording revisions by adding the word ``property'' between
the words ``other'' and ``material''; changing the word ``incidental''
to ``incident''; and adding the word ``and'' after the word ``mining.''
At subdivision (a)(7), Indiana removed the words ``of a mine'' from the
end of the subdivision.
We find that the revised language at subsection (a) is
substantively the same as the counterpart language in the Federal
definition of ``affected area'' at 30 CFR 701.5. Therefore, we are
approving 312 IAC 25-1-8(a).
2. 312 IAC 25-1-8(b) and (c). Indiana added introductory language
at subsection (b) to identify the roads associated with the permit area
that are considered affected areas and added subdivisions (b)(1)
through (4) to identify the criteria for exemption of those roads that
are not considered affected areas. Roads must meet all of the criteria
listed in subdivisions (b)(1) through (4) before being considered for
exemption. Subsection (b) identifies as affected areas those roads used
for the purposes of access to, or for hauling coal to or from, any
surface coal mining and reclamation operation unless they meet the
criteria in subdivisions (b)(1) through (4). Subdivision (b)(1)
specifies that for a road to be exempt, it must be ``designated as a
public road pursuant to the laws of the jurisdiction in which it is
located.'' Subdivision (b)(2) specifies that the road must be
``maintained with public funds, and constructed in a manner similar to
other public roads of the same classification within the
jurisdiction.'' Subdivision (b)(3) provides that the road must have a
``substantial (more than incidental) public use.'' Finally, subdivision
(b)(4) specifies that ``the extent and the effect of mining-related
uses of the road by the permittee must not warrant regulation as part
of the surface coal mining and reclamation operations.'' Indiana added
subsection (c) to require the director of the IDNR (director) to
determine on a case-by-case basis whether a road satisfies the
requirements of subdivision (b)(4) based on the mining related use of
the road and consistent with Indiana's definition of ``surface coal
mining operation.''
The language at subsection (b) and subdivisions (b)(1), (b)(2), and
(b)(3) is substantively the same as language found in the counterpart
Federal definition of ``affected area'' at 30 CFR 701.5. On November
20, 1986 (51 FR 41952), we suspended the definition of ``affected
area'' at 30 CFR 701.5 insofar as it might limit jurisdiction over
roads
[[Page 69282]]
covered by the definition of ``surface coal mining operations.'' Our
revised road rules were published on November 8, 1988 (53 FR 45192). In
finalizing those rules, we 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, we declined to expressly
exclude public roads from the definition of road. In the preamble, we
stated that we are concerned that roads constructed to serve mining
operations should not avoid compliance with performance standards by
being deeded to public entities, but it was not our intent to
automatically extend 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 312 IAC 25-
1-8(b)(4) and (c) clarify when a public road will be regulated and
adequately address the concerns we expressed in the November 8, 1988,
preamble (53 FR 45192) regarding public roads. Therefore, we find 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.'' Based on
this finding, we are approving 312 IAC 25-1-8(b) and (c).
D. Recodification Corrections
Indiana's August 21, 2001, amendment concerned the recodification
of its rules to comply with formatting guidelines set forth by the
Indiana Legislative Services Agency (Administrative Record No. IND-
1712). In recodifying some of its rules, Indiana inadvertently removed
previously-approved language. In its May 19, 2004, amendment, Indiana
made corrections to the following rules, which were recodified
(Administrative Record No. IND-1726).
1. 312 IAC 25-4-17 Surface Mining Permit Applications; Identification
of Interests
Indiana's rule at 312 IAC 25-4-17 specifies the information that
must be included in a surface mining permit application for
identification of interests. In recodifying 312 IAC 25-4-17(d), (e),
and (f), Indiana inadvertently removed language that required an
applicant to submit the specified information with an application.
Therefore, in our approval of Indiana's recodified rule on November 16,
2001 (66 FR 57655), we required Indiana to submit an amendment or
otherwise modify its program to clarify that the information specified
in 312 IAC 25-4-17(d), (e), and (f) must be submitted with the permit
application. We codified this requirement at 30 CFR 914.16(jj). In its
May 19, 2004, amendment, Indiana revised 312 IAC 25-4-17 by adding the
language ``shall be submitted with the application'' to the end of
subsections (d), (e), and (f).
With the addition of the language that requires the information
specified in the subsections to be submitted with the application, we
find that Indiana's rules at 312 IAC 25-4-17(d), (e), and (f) are no
less effective than the counterpart Federal regulations at 30 CFR
778.13(a), (b), and (d), respectively. Therefore, we are approving the
revisions. We further find that Indiana's revisions satisfy the
required amendment at 30 CFR 914.16(jj), and we are removing it.
2. 312 IAC 25-4-45 Surface Mining Permit Applications; General
Requirements for Reclamation Plans
Indiana's rule at 312 IAC 25-4-45 specifies the information that
must be included in the reclamation plan for a surface mining permit.
In recodifying 312 IAC 25-4-45(b)(4), Indiana inadvertently removed
``total depth'' as one of the factors that the operator is to analyze
to demonstrate the suitability of topsoil substitutes or supplements.
We consider ``total depth'' to be one of the factors that must be
evaluated to demonstrate the suitability of topsoil substitutes or
supplements. Therefore, in our approval of Indiana's recodified rule on
November 16, 2001 (66 FR 57655), we required Indiana to submit an
amendment or otherwise modify its program to require the demonstration
of the suitability of topsoil substitutes or supplements to also be
based upon analysis of the ``total depth'' of the different kinds of
soils. We codified this requirement at 30 CFR 914.16(ll). In its May
19, 2004, amendment, Indiana restructured 312 IAC 25-4-45(b)(4) and
added ``total depth'' to the list of factors that must be analyzed to
demonstrate the suitability of topsoil substitutes or supplements.
With the addition of ``total depth'' to the list of factors to be
analyzed for the different kinds of soils proposed for topsoil
substitutes or supplements, we find that Indiana's rule at 312 IAC 25-
4-45(b)(4) is no less effective than the counterpart Federal regulation
at 30 CFR 780.18(b)(4). Therefore, we are approving the revision. We
further find that Indiana's revision satisfies the required amendment
at 30 CFR 914.16(ll), and we are removing it.
3. 312 IAC 25-4-113 Public Availability of Permit Application
Information
Indiana's rule at 312 IAC 25-4-113 provides the exceptions to
public availability of permit application information. In recodifying
312 IAC 25-4-113, Indiana inadvertently removed its previously-approved
provision that allowed a person to oppose or seek disclosure of
confidential information. Indiana also inadvertently removed its
previously-approved provision concerning the confidentiality of
information on the nature and location of archaeological resources on
public and Indian land. Therefore, in our approval of Indiana's
recodified rule on November 16, 2001 (66 FR 57655), we required Indiana
to revise 312 IAC 25-4-113 or otherwise modify the Indiana program to
allow a person to oppose or seek disclosure of confidential
information. We also required Indiana to revise 312 IAC 25-4-113 or
otherwise modify the Indiana program to add a provision that classifies
information on the nature and location of archeological resources on
public land and Indian land as qualified confidential information. We
codified these requirements at 30 CFR 914.16(mm)(1) and (2). In its May
19, 2004, amendment, Indiana revised 312 IAC 25-4-113 by adding new
subsection (f) to specify that information on the nature and location
of archaeological resources on public and Indian land is confidential.
Indiana also redesignated existing subsection (f) as subsection (g) and
revised the first sentence to allow a person who opposes or seeks
disclosure of confidential information to submit a request under 312
IAC 25-4-110.
With the addition of new subsection (f) and the revisions to
subsection (g), we find that Indiana's rules at 312 IAC 25-4-113(f) and
(g) are no less effective than the counterpart Federal regulations at
30 CFR 773.6(d)(3) and (d)(3)(iii), and we are approving them. We
further find that Indiana's revisions satisfy the required amendments
at 30 CFR 914.16(mm)(1) and (2), and we are removing them.
E. Permit Applications; Reclamation Plan for Siltation Structures,
Impoundments, Dams, Embankments, and Refuse Piles
On October 20, 1994 (59 FR 53022), we revised the Federal
regulations at 30 CFR 780.25 (Surface Mining) and 784.16 (Underground
Mining) concerning
[[Page 69283]]
reclamation plan requirements for siltation structures, impoundments,
banks, dams, and embankments. On June 17, 1997, we sent Indiana a
letter (Administrative Record No. IND-1575) in accordance with 30 CFR
732.17(c). We notified Indiana that it must amend its rules to be no
less effective than the revised Federal regulations. Also, in our
October 29, 1996 (61 FR 55743), approval of Indiana's September 26,
1994, amendment, as revised on August 16, 1995, we required Indiana to
amend 310 IAC 12-3-49 (Surface Mining) and 310 IAC 12-3-83 (Underground
Mining) [currently 312 IAC 25-4-49 and 312 IAC 25-4-87, respectively]
to add the requirement concerning stability analysis of each structure
as is required by 30 CFR 780.25(f) and 784.16(f). We codified this
requirement at 30 CFR 914.16(ii)(1). In response to our June 17, 1997,
letter and the required amendment at 30 CFR 914.16(ii)(1), Indiana
proposed the following revisions to its rules.
1. 312 IAC 25-4-49(a) and 25-4-87(a). Indiana revised the first
sentence of subsection (a) by requiring an application to include ``a
general plan and a detailed design plan'' instead of ``a plan'' for
each proposed structure within the proposed permit area. Indiana also
added ``refuse pile'' to the list of coal processing waste structures
for which a general plan and a detailed design plan were needed.
The counterpart Federal regulations at 30 CFR 780.25(a) and
784.16(a) also require that a permit application include ``a general
plan and detailed design plan'' for each proposed structure. Although
the Federal regulations do not include the term ``coal processing
refuse pile,'' Indiana's use of the term is equivalent to the Federal
term ``coal processing waste bank.'' Therefore, we find that 312 IAC
25-4-49(a) and 25-4-87(a), as revised, are no less effective than the
counterpart Federal regulations, and we are approving the revisions.
2. 312 IAC 25-4-49(c) and 25-4-87(c). Indiana revised 312 IAC 25-4-
49(c) by requiring that permanent and temporary impoundments be
designed to comply with the requirements of 312 IAC 25-6-20 and the
requirements of the Mine Safety and Health Administration at 30 CFR
77.216-1 and 30 CFR 77.216-2. Indiana revised 312 IAC 25-4-87(c) by
requiring that permanent and temporary impoundments be designed to
comply with the requirements of 312 IAC 25-6-84 and the requirements of
the Mine Safety and Health Administration at 30 CFR 77.216-1 and 30 CFR
77.216-2.
The Federal regulations at 30 CFR 780.25(c) and 784.16(c) contain
substantively the same requirements. Therefore, we find that 312 IAC
25-4-49(c) and 25-4-87(c), as revised, are no less effective than the
counterpart Federal regulations, and we are approving the revisions.
3. 312 IAC 25-4-49(d) and 25-4-87(d). Indiana added a new
subsection (d) to 312 IAC 25-4-49 that requires refuse piles to be
designed to comply with 312 IAC 25-6-36 through 312 IAC 25-6-39.
Indiana added a new subsection (d) to 312 IAC 25-4-87 that requires
refuse piles to be designed to comply with 312 IAC 25-6-98 through 312
IAC 25-6-102. For both rules, Indiana redesignated existing subsection
(d) as subsection (e).
The Federal regulations at 30 CFR 780.25(d) and 784.16(d) contain
substantively the same requirements. Therefore, we find that Indiana's
new rules at 312 IAC 25-4-49(d) and 25-4-87(d) are no less effective
than the counterpart Federal regulations, and we are approving them.
4. 312 IAC 25-4-49(f) and 25-4-87(f). In response to the required
amendment at 30 CFR 914.16(ii)(1), Indiana added new subsection (f).
For structures that meet the Class B or C criteria for dams in
Technical Release 60 (TR-60) or that meet the size and other criteria
of 30 CFR 77.216(a), each reclamation plan under subsections (b), (c),
and (e) must include a stability analysis of the structure. The
stability analysis must include strength parameters, pore pressures,
and long term seepage conditions. The plan must also include a
description of each engineering design assumption and calculation.
We find that Indiana's rules at 312 IAC 25-4-49(f) and 25-4-87(f)
contain requirements that are substantively the same as the counterpart
Federal regulation requirements at 30 CFR 780.25(f) and 784.16(f).
Therefore, we are approving them. We further find that Indiana's rules
at 312 IAC 25-4-49(f) and 25-4-87(f) satisfy the required amendment at
30 CFR 914.16(ii)(1), and we are removing it.
5. 312 IAC 25-4-49(g) and 25-4-87(g). Indiana's rule at subsection
(g) requires that applications for specified types of proposed
permanent structures that impound water and meet specified criteria
must be submitted to the Department of Natural Resources, Division of
Water for approval before construction of the structure begins. Indiana
redesignated existing subsection (e) as subsection (g) and added
introductory language to clarify the types of structures for which
applications must be submitted. These structures include proposed
permanent siltation structures, water impoundments, coal processing
waste dams, or embankments. Indiana also removed the last sentence from
subdivision (g)(3).
There are no Federal counterparts to Indiana's rules at 312 IAC 25-
4-49(g) and 25-4-87(g). However, we find that the revisions made to
these previously-approved rules will not make the Indiana rules less
effective than the Federal regulations or SMCRA.
F. Lands Eligible for Remining
On September 11, 1995, Indiana submitted an amendment concerning
statutory requirements for lands eligible for remining (Administrative
Record No. IND-1509). After reviewing the amendment, we determined that
Indiana's amendment did not include all of the necessary requirements
of section 510(e) of SMCRA and the implementing Federal regulations for
lands eligible for remining. Therefore, in our approval of Indiana's
amendment on April 10, 1996 (61 FR 15891), we required Indiana to amend
its program to provide implementing regulations for the statutory
requirements. We codified this requirement at 30 CFR 914.16(hh). In
response to this requirement, Indiana proposed the following revisions
to its rules.
1. 312 IAC 25-4-105.5 Special Categories of Mining; Lands Eligible for
Remining
At 312 IAC 25-4-105.5, Indiana added the permitting requirements
for lands eligible for remining. An application for a permit must
contain an identification of potential environmental and safety
problems related to prior mining activity at the site that could be
reasonably anticipated to occur. The identification is based on an
investigation that includes visual observations, record reviews of past
mining, and environmental sampling tailored to the site conditions. An
application must also contain descriptions of the mitigative measures
that will be taken to ensure the applicable reclamation requirements of
the regulatory program can be met. Indiana also provided that the
requirements of 312 IAC 25-4-105.5 do not apply after September 30,
2004.
Indiana's September 11, 1995, proposed statute at IC 14-34-4-10.5
did not contain the proviso that the permitting requirements for lands
eligible for remining will not apply after September 30, 2004. This
proviso is required by section 510(e) of SMCRA and the implementing
Federal regulation at 30 CFR 785.25. See 60 FR 58480, November 27,
1995. In our April 10, 1996, approval of Indiana's statute,
[[Page 69284]]
we required Indiana to amend its program by adding a counterpart to 30
CFR 785.25 to implement IC 14-34-4-10.5. Indiana added this counterpart
at 312 IAC 25-4-105.5 for lands eligible for remining. Indiana's
proposed rule contains requirements that are substantively the same as
the counterpart Federal regulation, including the proviso that the
requirements do not apply after September 30, 2004. The effective date
of our decision in this final rule is after the September 30, 2004,
expiration date for these requirements. However, Indiana established
the September 30, 2004, date in its rule to clarify that its statute at
IC 14-34-4-10.5 and its implementing rule at 312 IAC 25-4-105.5 only
apply to permits issued before September 30, 2004. Therefore, we find
that 312 IAC 25-4-105.5 is no less effective than the counterpart
Federal regulation, and we are approving it.
2. 312 IAC 25-4-114 Review of Permit Applications
At 312 IAC 25-4-114, Indiana added new subsection (d) to require
that the prohibitions on the issuance of a permit at subsection (b) 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 violation must have
occurred after October 24, 1992, and be a result of an unanticipated
event or condition on a permit. The permit must have been issued before
September 30, 2004, including subsequent renewals, and held by the
person making application for a new permit. For a permit issued under
312 IAC 25-4-105.5, concerning lands eligible for remining, an event or
condition is presumed to be unanticipated if the event or condition
arose after permit issuance, was related to prior mining, and was not
identified in the permit.
Indiana's rule at 312 IAC 25-4-114(d) contains substantively the
same requirements as the counterpart Federal regulation at 30 CFR
773.13 concerning unanticipated events or conditions at remining sites.
Therefore, we find that 312 IAC 25-4-114(d) is no less effective than
the counterpart Federal regulation, and we are approving it.
3. 312 IAC 25-4-115 Permit Approval or Denial--Written Findings
At 312 IAC 25-4-115(a)(13), Indiana added a requirement that the
director make a written finding for permits to be issued for lands
eligible for remining. For these permits, the director must find that
the permit applications contain: (1) Lands eligible for remining; (2)
an identification of any potential environmental and safety problems
related to prior mining activity; and (3) mitigation plans to address
potential environmental and safety problems.
Indiana's rule at 312 IAC 25-4-115(a)(13) is substantively the same
as the counterpart Federal regulation at 30 CFR 773.15(m), concerning
written findings for permits to be issued for lands eligible for
remining. Therefore, we find that Indiana's rule at 312 IAC 25-4-
115(a)(13) is no less effective than the counterpart Federal
regulation, and we are approving it.
4. 312 IAC 25-5-7 Period of Liability
At 312 IAC 25-5-7(b), Indiana added a provision that allows lands
eligible for remining included in permits issued before September 30,
2004, or any renewals thereof, to have a liability period of two years.
To the extent that success standards are established by 312 IAC 25-6-
59(c)(1) or 25-6-120(c)(1), the lands must equal or exceed the
standards during the growing season of the last year of the
responsibility period.
Indiana's new provision at 312 IAC 25-5-7(b) is substantively the
same as the counterpart Federal regulation at 30 CFR 816.116(c)(2)(ii),
concerning the period of liability for lands eligible for remining.
Therefore, we find that the new provision at 312 IAC 25-5-7(b) is no
less effective than the counterpart Federal regulation, and we are
approving it.
5. Based on the above findings, Indiana's revisions at 312 IAC 25-
4-105.5, 25-4-114, 25-4-115, and 25-5-7(b) satisfy the required
amendment at 30 CFR 914.16(hh), and we are removing it.
G. 312 IAC 25-4-118 Permit Conditions
On August 21, 2001 (Administrative Record No. IND-1712), Indiana's
recodified rules included a rule at 312 IAC 25-4-118 that we had not
previously-approved. This rule specified the conditions under which a
permit is issued. In our approval of Indiana's rule on November 16,
2001 (66 FR 57655), we required Indiana to revise 312 IAC 25-4-118(4)
or otherwise modify its program to require permittees to allow
authorized representatives of the Secretary of the Interior to have
right of entry to surface coal mining and reclamation operations for
purposes of inspections, monitoring, and enforcement and to be
accompanied by private persons under specified conditions. We codified
this requirement at 30 CFR 914.16(kk). In its May 19, 2004, amendment,
Indiana revised 312 IAC 25-4-118(4) by changing the phrase ``authorized
representatives of the director'' to ``authorized representatives of
the director and the Secretary of the Interior.'' With this revision,
the permittee must allow the authorized representatives of the director
and the Secretary of the Interior, rather than just the director, to
have the right of entry to a mine site for the purpose of conducting
inspections and to be accompanied by private persons when the
inspection is in response to an alleged violation.
Based on the above discussion, we find that Indiana's rule at 312
IAC 25-4-118(4) is no less effective than the counterpart Federal
regulation at 30 CFR 773.17(d), and we are approving it. We further
find that Indiana's revision satisfies the required amendment at 30 CFR
914.16(kk), and we are removing it.
H. 312 IAC 25-6-23 Surface Mining; Hydrologic Balance; Surface and
Ground Water Monitoring
On March 26, 1992, as clarified on November 5, 1992, February 1,
1993, and May 19, 1993, Indiana submitted an amendment that included
revisions to 310 IAC 12-5-27(a) [currently 312 IAC 25-6-23(a)]. In our
August 16, 1993, approval of the revisions (58 FR 43248), we required
Indiana to amend 310 IAC 12-5-27(a)(4) [currently 312 IAC 25-6-
23(a)(4)] or otherwise amend the Indiana program to be no less
effective than 30 CFR 816.41(c)(2), which references and requires
compliance with 30 CFR 773.17(e). We codified the required amendment at
30 CFR 914.16(s). In response to this requirement, Indiana proposed to
add 312 IAC 25-6-23(a)(4)(C) to require that if the analysis of a
ground water sample indicates noncompliance with a permit condition,
the permittee must minimize any adverse impact to the environment or
public health and safety resulting from the noncompliance, including:
(1) Accelerated or additional monitoring to determine the nature and
extent of the noncompliance and the results of the noncompliance; (2)
immediate implementation of measures necessary to mitigate the
noncompliance; and (3) as soon as practicable issue warning to any
person whose health and safety is in imminent danger due to the
noncompliance.
The counterpart Federal regulation at 30 CFR 816.41(c)(2)
references the Federal regulation at 30 CFR 773.17(e), rather than
restating its requirements. However, we find that Indiana's addition of
the substantive requirements of 30 CFR 773.17(e) at 312 IAC 25-6-
[[Page 69285]]
23(a)(4)(C), rather than referencing its counterpart to 30 CFR
773.17(e), is no less effective than the counterpart Federal regulation
at 30 CFR 816.41(c)(2). Therefore, we are approving 312 IAC 25-6-
23(a)(4)(C) and removing the required amendment at 30 CFR 914.16(s).
I. 312 IAC 25-6-25 Hydrologic Balance; Water Rights and Replacement
In our August 2, 1991 (56 FR 37013), approval of Indiana's
amendment concerning water rights and replacement, we required Indiana
to amend 310 IAC 12-5-29 (currently 312 IAC 25-6-25) or otherwise amend
the Indiana program to clearly require the replacement of water
supplies that are affected by contamination, diminution, or
interruption proximately resulting from surface mining activities which
do not involve a legitimate water use by a person conducting these
surface mining activities. We codified this requirement at 30 CFR
914.16(f). In response to this requirement, Indiana revised 312 IAC 25-
6-25 by removing the language ``pursuant to a lawful order of an agency
or court under IC 14-25-4 or another state water rights law'' from the
first sentence. Indiana also removed the existing second sentence,
which stated that water replacement rights are not determined by the
Indiana program. Indiana added a provision that requires the use of
baseline hydrologic information to determine the extent of the impact
of mining on ground water and surface water, as well as other relevant
information.
Indiana's proposed revisions make 312 IAC 25-6-25 substantively
identical to the counterpart Federal regulation at 30 CFR 816.41(h).
Therefore, we find that 312 IAC 25-6-25 is no less effective than the
counterpart Federal regulation, and we are approving the revisions. We
further find that Indiana's revisions satisfy the required amendment at
30 CFR 914.16(f), and we are removing it.
J. 312 IAC 25-6-66 (Surface Mining) and 312 IAC 25-6-130 (Underground
Mining); Primary Roads
1. On September 26, 1994 (Administrative Record No. IND-1401), as
revised on August 16, 1995 (Administrative Record No. IND-1506),
Indiana submitted an amendment that included revisions to 310 IAC 12-5-
69.5(2) and 12-5-137.5(2) [currently 312 IAC 25-6-66(2) and 25-6-
130(2)] concerning primary roads. On October 29, 1996, we approved
Indiana's revisions except to the extent that the provisions allowed
the use of a maximum slope of 3h:1v without providing engineering
design standards that ensure compliance with the minimum static safety
factor of 1.3 (61 FR 55743). We required Indiana to remove the language
that we did not approve and notify us when the removal was complete or
propose engineering design standards for a slope of 3h:1v that ensures
compliance with the 1.3 minimum static safety factor requirements. In
response to this requirement, Indiana revised 312 IAC 25-6-66 and 25-6-
130 by removing the language that allowed the use of a maximum slope of
3h:1v. We find that with the removal of this language, 312 IAC 25-6-
66(2) and 25-6-130(2) are no less effective than the counterpart
Federal regulations at 30 CFR 816.151(b) and 817.151(b) for primary
roads, and we are approving them.
2. In its May 19, 2004, amendment, Indiana also proposed
engineering design standards at 312 IAC 25-6-130(2)(A) through (H) for
underground mining primary roads. The design standards allow the use of
a maximum slope of 2h:1v as an alternative to the 1.3 static safety
factor requirement for primary road embankments.
The Federal regulations at 30 CFR 780.37(c) and 784.24(c) allow
regulatory authorities to establish engineering design standards for
primary roads in lieu of engineering tests to establish compliance with
the minimum static safety factor of 1.3 for primary road embankments.
In its September 26, 1994, amendment, Indiana had proposed
substantively identical design standards for surface mining primary
roads. We conducted a technical review of Indiana's surface mining
design standards, found them to be acceptable, and approved them on
October 29, 1996. Therefore, we find that Indiana's proposed design
standards for underground mining primary roads meet the requirement at
30 CFR 784.24(c), and we are approving them.
K. 312 IAC 25-7-1 Inspections of Sites
On November 28, 1994 (59 FR 60876), we revised the Federal
regulations at 30 CFR 840.11 concerning inspection procedures. On June
17, 1997, we sent Indiana a letter (Administrative Record No. IND-1575)
in accordance with 30 CFR 732.17(c). We notified Indiana that it must
amend its rules to be no less effective than the revised Federal
regulations. In response to this requirement, Indiana proposed
revisions to its rule at 312 IAC 25-7-1. Indiana removed existing
subdivision (a)(2) and redesignated existing subdivisions (a)(3) and
(4) as subdivisions (a)(2) and (3). Indiana also redesignated existing
subsection (f) as subsection (h) and added new subsections (f) and (g).
1. New subsection (f) provides that in lieu of the inspection
frequency established in subsection (a), the regulatory authority must
inspect each abandoned site on a set frequency commensurate with the
public health and safety and environmental considerations present at
each specific site, but in no case will the inspection frequency be set
at less than one complete inspection per calendar year. Subdivisions
(f)(1) through (3) provide the procedures that the regulatory authority
must follow to establish an alternative inspection frequency for
abandoned sites.
The requirements of Indiana's new rule at 312 IAC 25-7-1(f) are
substantively identical to the counterpart Federal regulation at 30 CFR
840.11(h)(1). Therefore, we find that 312 IAC 25-7-1(f) is no less
effective than the counterpart Federal regulation, and we are approving
it.
2. New subdivision (g)(1) provides the procedures for publishing a
public notice and offering the public an opportunity to comment on the
alternative inspection frequency for an abandoned site. New subdivision
(g)(2) provides information on the content of a public notice.
The requirements of Indiana's new rule at 312 IAC 25-7-1(g) are
substantively identical to the counterpart Federal regulation at 30 CFR
840.11(h)(2). Therefore, we find that 312 IAC 25-7-1(g) is no less
effective than the counterpart Federal regulation, and we are approving
it.
3. In our June 17, 1997, letter, we notified Indiana that we had
revised 30 CFR 840.11(g)(4) to allow a site to be classified as
abandoned only in cases where a permit has either expired or been
revoked. Previously, 30 CFR 840.11(g)(4) allowed a site to be
classified as abandoned on the basis that the permit has expired or
been revoked or permit revocation proceedings have been initiated and
are being pursued diligently. Indiana did not revise its rule at 312
IAC 25-7-1 to reflect this new requirement of the revised Federal
regulation. Therefore, we are requiring Indiana to revise 312 IAC 25-7-
1(h)(2)(D)(i) to allow a site to be classified as abandoned only in
cases where a permit has expired or been revoked. We are codifying this
requirement at 30 CFR 914.16.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment, but did not receive
any.
[[Page 69286]]
Federal Agency Comments
On June 10, 2004, under 30 CFR 732.17(h)(11)(i) and section 503(b)
of SMCRA, we requested comments on the amendment from various Federal
agencies with an actual or potential interest in the Indiana program
(Administrative Record No. IND-1729).
The U.S. Fish and Wildlife Service (FWS) responded on July 12, 2004
(Administrative Record No. IND-1731), that the amendment contains some
items of interest to the FWS related to language concerning prime
farmland soils. FWS commented that for conservation of wildlife
resources, it is important that pre-mining forest on prime farmland
soils can continue to be restored as forest. FWS then stated that it
understood from discussions with the IDNR staff that the proposed
changes will not adversely affect forest restoration; therefore, it had
no specific comments on the amendment.
We agree that the proposed changes to Indiana's prime farmland rule
will not adversely affect forest restoration.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from 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 pertain to air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment.
On June 10, 2004, under 30 CFR 732.17(h)(11)(i), we requested
comments on the amendment from EPA (Administrative Record No. IND-
1729). EPA did not respond to our request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On June 10, 2004, we requested comments on Indiana's
amendment (Administrative Record No. IND-1729), but neither responded
to our request.
V. OSM's Decision
Based on the above findings, we approve with an additional
requirement the amendment Indiana sent us on May 19, 2004. As discussed
in Finding III.K.3, we are requiring Indiana to revise its rule at 312
IAC 25-7-1(h)(2)(D)(i) to allow a site to be classified as abandoned
only in cases where a permit has expired or been revoked.
We approve the rules proposed by Indiana with the provision that
they be fully promulgated in identical form to the rules submitted to
and reviewed by OSM and the public.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 914, which codify decisions concerning the Indiana
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this rule effective immediately will expedite that
process. SMCRA requires consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
The provisions in the rule based on counterpart Federal regulations
do not have takings implications. This determination is based on the
analysis performed for the counterpart Federal regulations. The
revisions made at the initiative of the State that do not have Federal
counterparts have also been reviewed and a determination made that they
do not have takings implications. This determination is based on the
fact that the provisions are administrative and procedural in nature
and are not expected to have a substantive effect on the regulated
industry.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that 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 because
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
the Federal regulations at 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.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
This determination is based on the fact that the Indiana program does
not regulate coal exploration and surface coal mining and reclamation
operations on Indian lands. Therefore, the Indiana program has no
effect on Federally-recognized Indian tribes.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
[[Page 69287]]
National Environmental Policy Act
This rule does not require an environmental impact statement
because 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 certifies that a portion of the
provisions in 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.) because they are based upon counterpart
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. In making
the determination as to whether this part of the rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations. The Department of
the Interior also certifies that the provisions in this rule that are
not based upon counterpart Federal regulations 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.). This
determination is based upon the fact that the provisions are
administrative and procedural in nature and are not expected to have a
substantive effect on the regulated industry.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that a portion
of the State provisions are based upon counterpart Federal regulations
for which an analysis was prepared and a determination made that the
Federal regulation was not considered a major rule. For the portion of
the State provisions that is not based upon counterpart Federal
regulations, this determination is based upon the fact that the State
provisions are administrative and procedural in nature and are not
expected to have a substantive effect on the regulated industry.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that a portion of
the State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an analysis was prepared and
a determination made that the Federal regulations did not impose an
unfunded mandate. For the portion of the State provisions that is not
based upon counterpart Federal regulations, this determination is based
upon the fact that the State provisions are administrative and
procedural in nature and are not expected to have a substantive effect
on the regulated industry.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 14, 2004.
Charles E. Sandberg,
Regional Director, Mid-Continent Regional Coordinating Center.
0
For the reasons set out in the preamble, 30 CFR part 914 is amended as
set forth below:
PART 914--INDIANA
0
1. The authority citation for part 914 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
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.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
May 19, 2004.................. November 29, 2004 312 IAC 25-1-8; 25-1-
75.5; 25-1-155.5; 25-
4-17(a)(1), (d),
(e), and (f); 25-4-
45(b)(4); 25-4-
49(a), (c), (d),
(f), and (g); 25-4-
87(a), (c), (d),
(f), and (g); 25-4-
102(d)(1), (e), and
(f); 25-4-105.5; 25-
4-113(f) and (g); 25-
4-114(d); 25-4-
115(a)(3) and (13);
25-4-118(4) and (8);
25-5-7(b); 25-5-
16(b) and (c); 25-6-
17(a)(3), (b)(2),
(d)(2), and (d)(3);
25-6-20(a) and (c);
25-6-23(a)(2) and
(4)(C); 25-6-25; 25-
6-66(2); 25-6-
81(a)(3), (d)(2) and
(3); 25-6-84(a) and
(c); 25-6-130(2); 25-
7-1(a), (d)(2), (f),
and (g); 25-7-20.
------------------------------------------------------------------------
0
3. Section 914.16 is amended by removing and reserving paragraphs (f),
(s), (hh), (ii), (jj), (kk), (ll), and (mm) and by adding paragraph
(ff) to read as follows:
Sec. 914.16 Required program amendments.
* * * * *
(ff) By February 28, 2005. Indiana must submit either an amendment
or a description of an amendment to be proposed, together with a
timetable for adoption of proposed revisions to 312 IAC 25-7-
1(h)(2)(D)(i) to allow a site to be classified as abandoned only in
cases where a permit has expired or been revoked.
Sec. 914.25 [Amended]
0
4. Section 914.25 is amended by:
0
a. Removing the designation ``(a)'' from paragraph (a); and
0
b. Removing paragraph (b).
[FR Doc. 04-26196 Filed 11-26-04; 8:45 am]
BILLING CODE 4310-05-P