[Federal Register Volume 72, Number 24 (Tuesday, February 6, 2007)]
[Proposed Rules]
[Pages 5374-5377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1863]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[Docket No. IN-156-FOR]
Indiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are announcing receipt of a proposed amendment to the Indiana
regulatory program (Indiana program) under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). The Indiana Department
of Natural Resources, Division of Reclamation (IDNR, department, or
Indiana) proposes revisions to its rules concerning the definition of
``government-financed construction''; underground mining reclamation
plans for siltation structures, impoundments, dams, embankments, and
refuse piles; performance bond release; surface mining permanent and
temporary impoundments; surface mining primary roads; and inspections
of sites. Indiana intends to revise its program to be consistent with
the corresponding Federal regulations, to clarify ambiguities, and to
improve operational efficiency.
This document gives the times and locations that the Indiana
program and proposed amendments to that program are available for your
inspection, the comment period during which you may submit written
comments on the amendment, and the procedures that we will follow for
the public hearing, if one is requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
e.t., March 8, 2007. If requested, we will hold a public hearing on the
amendment on March 5, 2007. We will accept requests to speak at a
hearing until 4 p.m., e.t. on February 21, 2007.
ADDRESSES: You may submit comments, identified by Docket No. IN-156-
FOR, by any of the following methods:
E-mail: [email protected]. Include Docket No. IN-156-FOR
in the subject line of the message.
Mail/Hand Delivery: Andrew R. Gilmore, Chief, Alton Field
Division--Indianapolis Area Office, Office of Surface Mining
Reclamation and Enforcement, Minton-Capehart Federal Building, 575
North Pennsylvania Street, Room 301, Indianapolis, Indiana 46204.
Fax: (317) 226-6182.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to review copies of the Indiana
program, this amendment, a listing of any scheduled public hearings,
and all written comments received in response to this document, you
must go to the address listed below during normal business hours,
Monday through Friday, excluding holidays. You may receive one free
copy of the amendment by contacting OSM's Indianapolis Area Office:
Andrew R. Gilmore, Chief, Alton Field Division--Indianapolis Area
Office, Office of Surface Mining Reclamation and Enforcement, Minton-
Capehart Federal Building, 575 North Pennsylvania Street, Room 301,
Indianapolis, Indiana 46204, Telephone: (317) 226-6700, E-mail:
[email protected].
In addition, you may review a copy of the amendment during regular
business hours at the following location: Indiana Department of Natural
Resources, Division of Reclamation, R.R. 2, Box 129, Jasonville,
Indiana 47438-9517, Telephone: (812) 665-2207.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field
Division--Indianapolis Area Office. Telephone: (317) 226-6700. E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Indiana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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
[[Page 5375]]
by demonstrating that its 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 of the Indiana program 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. Description of the Proposed Amendment
By letter dated December 11, 2006 (Administrative Record No. IND-
1741), Indiana sent us an amendment to its program under SMCRA (30
U.S.C. 1201 et seq.). Indiana sent the amendment in response to a
required program amendment at 30 CFR 914.16(ff) and to include changes
made at its own initiative. Below is a summary of the changes proposed
by Indiana. The full text of the program amendment is available for you
to read at the locations listed above under ADDRESSES.
A. 312 IAC 25-1-57 ``Government-Financed Construction'' Defined
Indiana proposes to revise its definition of ``government-financed
construction'' to read as follows:
``Government-financed construction'' means construction funded
at fifty percent (50%) or more by funds appropriated from a
government financing agency's budget or obtained from general
revenue bonds. Government financing at less than fifty percent (50%)
may qualify if the construction is undertaken as an approved
reclamation project under Title IV of the Federal Surface Mining
Control and Reclamation Act of 1977 (30 U.S.C. 1201 through 30
U.S.C. 1328) and IC 14-34-19. Construction funded through:
(1) A government financing agency guarantee;
(2) Insurance;
(3) A loan;
(4) Funds obtained through industrial revenue bonds or their
equivalent; or
(5) An in-kind payment;
does not qualify as government-financed construction.
B. 312 IAC 25-4-87 Underground Mining Permit Applications; Reclamation
Plan for Siltation Structures, Impoundments, Dams, Embankments, and
Refuse Piles
1. Indiana proposes to restructure and/or make minor wording
changes to subsections (a)(1)(B); (a)(2)(A) and (C); (c); (e)(1) and
(e)(4); and (f)(1).
2. At subsection (g)(3), Indiana proposes to remove the following
sentence:
If necessary to protect the health or safety of persons or
property or the environment, even though the volume of water
impounded is less than one hundred (100) acre feet, the director may
require an application to be made.
C. 312 IAC 25-5-16 Performance Bond Release; Requirements
1. At subsection (a)(7), Indiana proposes to revise this subsection
to remove the provision that allows persons to request an informal
conference.
2. Indiana proposes to recodify existing subsections (b) through
(f) as subsections (c) through (g), and existing subsection (h) as
subsection (i). Indiana also proposes to remove the language in
existing subsections (g) and (i), which pertains to filing written
objections to proposed bond releases and requesting and holding a
public hearing. A portion of the provisions in existing subsection (g)
is currently found in subsection (a) and portions of the provisions in
existing subsections (g) and (i) are found in newly added subsection
(j).
3. Indiana proposes to add new subsection (b) to allow the director
of IDNR to initiate an application for the release of bond. If a bond
release application is initiated by the director of IDNR, the
department will have to perform the notification and certification
requirements otherwise imposed on the permittee.
4. At new subsection (d)(4) [existing subsection (c)(4)], Indiana
proposes to change the last sentence to read as follows:
The department shall notify, in writing, the permittee and any
other interested person of a decision whether to release all or part
of the performance bond or deposit within sixty (60) days after
receipt of the request if no public hearing or informal conference
is held under subsection (i) or (j) or if an informal conference is
held under subsection (i) or public hearing is held under subsection
(j) within thirty (30) days after the informal conference or public
hearing is completed.
5. Indiana proposes to add new subsection (h) to read as follows:
(h) A determination by the director under the provisions of this
article or IC 14-34 is subject to review. An affected person may
obtain administrative review under IC 4-21.5 and 312 IAC 3-1. The
division of hearings of the commission shall, as soon as
practicable, conduct any appropriate proceeding.
6. Indiana proposes to revise new subsection (i) [existing
subsection (h)] to read as follows:
(i) Upon receipt of written objection or a request for public
hearing under subsection (a), the department, at the discretion of
the director, may set a dispute under this section for an informal
conference to resolve the objection. Conduct of an informal
conference does not alter or prejudice the rights and
responsibilities under this section of any of the following:
(1) A permittee.
(2) A person who files objections.
(3) The department.
(4) Another interested person.
8. Indiana proposes to add new subsection (j) to read as follows:
(j) If objections filed under subsection (a) are not resolved
through an informal conference, the department shall hold a public
hearing within a reasonable time following the receipt of the
request. The public hearing shall be conducted as follows:
(1) The date, time, and location of the public hearing shall be
sent to the permittee and other parties to the hearing and
advertised by the department in a newspaper of general circulation
in the county where the surface coal mining and reclamation
operation proposed for bond release is located one (1) time each
week for two (2) consecutive weeks.
(2) The requirements of IC 4-21.5-3 shall not apply to the
conduct of the public hearing. The public hearing shall be conducted
by a representative of the director, who may accept oral or written
statements and any other relevant information from any party to the
public hearing. An electronic or stenographic record shall be made
unless waived by all parties. The record shall be maintained and
shall be accessible to the parties of the public hearing until final
release of the applicant's performance bond or other equivalent
guarantee under this article.
(3) The department shall furnish all parties of the public
hearing with the following:
(A) The written findings of the director based on the public
hearing.
(B) The reasons for the finding.
(4) If all parties requesting the public hearing withdraw their
request before the conference is held, the public hearing may be
canceled.
D. 312 IAC 25-6-20 Surface Mining; Hydrologic Balance; Permanent and
Temporary Impoundments
1. Indiana proposes to restructure and/or make minor wording
changes to subsections (a)(1); (a)(3)(A), (B), and (C); (a)(5); (a)(6);
(a)(7)(B)(iii); (a)(9)(A) and (D); (b)(3); (b)(8)(B); (c)(1) and (2);
(d); and (e).
2. Indiana proposes to remove the language ``and located where
failure would not be expected to cause loss of
[[Page 5376]]
life or serious property damage'' from subsection (a)(3)(B). By
removing this language, all impoundments not meeting the Class B or C
criteria for dams in the Natural Resource Conservation Service (NRCS)
publication Technical Release No. 60 (TR 60) or size or other criteria
of 30 CFR 77.216(a) [except for coal mine waste impounding structures]
must have a minimum static safety factor of 1.3 for a normal pool with
steady state seepage saturation conditions.
3. Indiana also proposes to redesignate subsection (a)(9)(E)(ii) as
new subsection (a)(9)(E)(iii), and to add the following new language at
subsection (a)(9)(E)(ii):
(ii) Impoundments that are entirely contained within an incised
structure such that the incised structure would completely contain
the waters of the impoundment should failure occur and failure would
not create a potential threat to public health and safety or
threaten significant environmental harm.
E. 312 IAC 25-6-66 Surface Mining; Primary Roads
1. At subdivision (2), Indiana proposes to revise the introductory
paragraph to read as follows:
(2) Each primary road embankment shall have a minimum static
safety factor of one and three-tenths (1.3) or be designed in
compliance with the following design standards:
2. Indiana proposes to restructure and/or make minor wording
changes to subdivisions (2)(A), (C), and (H); and (4)(B)(i).
F. 312 IAC 25-7-1 Inspections of Sites
1. Indiana proposes to restructure and/or make minor wording
changes to subsections (f)(3)(E) and (F); (g)(2); (h)(1)(D)(ii); and
(h)(3)(A).
2. At subsection (h)(1)(D)(i), Indiana proposes to remove the
language ``or permit revocation proceedings have been initiated and are
being pursued diligently.'' By removing this language, the definition
of ``abandoned site'' (if the site has previously been permitted or
bonded) no longer includes a site where permit revocation proceedings
have been initiated and are being pursued diligently.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the State program.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your written comments should be specific, pertain only to
the issues proposed in this rulemaking, and include explanations in
support of your recommendations. We will not consider or respond to
your comments when developing the final rule if they are received after
the close of the comment period (see DATES). We will make every attempt
to log all comments into the administrative record, but comments
delivered to an address other than the Indianapolis Area Office may not
be logged in.
Electronic Comments
Please submit Internet comments as an ASCII or Word file avoiding
the use of special characters and any form of encryption. Please also
include ``Attn: Docket No. IN-156-FOR'' and your name and return
address in your Internet message. If you do not receive a confirmation
that we have received your Internet message, contact the Indianapolis
Area Office at (317) 226-6700.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public review in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.t. on
February 21, 2007. If you are disabled and need special accommodations
to attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. 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 this rulemaking has no takings implications.
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
[[Page 5377]]
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.
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 regulation did not impose an
unfunded mandate. For the portion of the State provisions that are 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: December 22, 2006.
Charles E. Sandberg,
Regional Director, Mid-Continent Region.
[FR Doc. E7-1863 Filed 2-5-07; 8:45 am]
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