[Federal Register Volume 59, Number 206 (Wednesday, October 26, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-26464] [[Page Unknown]] [Federal Register: October 26, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 914 Indiana Abandoned Mine Land Reclamation Plan AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule; approval of amendment. ----------------------------------------------------------------------- SUMMARY: OSM is approving a proposed amendment to the Indiana Abandoned Mine Land Reclamation (AMLR) Plan (hereinafter referred to as the ``Indiana plan'') under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The amendment is intended to revise the Indiana plan to allow the State to assume responsibility for administering an emergency response reclamation program in Indiana on behalf of OSM. EFFECTIVE DATE: October 26, 1994. FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, Indianapolis Field Office, Office of Surface Mining Reclamation and Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania Street, Room 301, Indianapolis, IN 46204, Telephone (317) 226-6166. SUPPLEMENTARY INFORMATION: I. Background on the Indiana Plan 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 Plan On July 29, 1982, the Secretary of the Interior conditionally approved the Indiana plan. Background information on the Indiana plan, including the Secretary's findings, the disposition of comments, and the approval of the Indiana plan can be found in the July 26, 1982, Federal Register (47 FR 32110). Subsequent actions concerning the conditions of approval and amendments to the plan can be found at 30 CFR 914.20 and 914.25. II. Submission of the Proposed Amendment Section 410 of SMCRA authorizes the Secretary to use funds under the AMLR program to abate or control emergency situations in which adverse effects of past coal mining pose an immediate danger to the public health, safety, or general welfare. On September 29, 1982 (47 FR 42729), OSM invited States to amend their AMLR Plans for the purpose of undertaking emergency reclamation programs on behalf of OSM. States would have to demonstrate that they have the statutory authority to undertake emergencies, the technical capability to design and supervise the emergency work, and the administrative mechanisms to quickly respond to emergencies either directly or through contractors. Under the provisions of 30 CFR 884.15, any State may submit proposed amendments to its approved AMLR Plan. If the proposed amendments change the scope or major policies followed by the State in the conduct of its AMLR program, the Director must follow the procedures set out in 30 CFR 884.14 in reviewing and approving or disapproving the proposed amendments. The proposed assumption of the AMLR emergency program on behalf of OSM is a major addition to the Indiana AMLR plan. Therefore, to asume the emergency program, Indiana must revise the Indiana Plan to include conducting the AML emergency program. By letter received November 17, 1992 (Administrative Record No. IND-1171), the Indiana Department of Natural Resources (IDNR), Division of Reclamation, submitted a proposed Program Amendment to the Indiana Program. The amendment describes the specific procedures which Indiana will follow to investigate, reclaim and document emergency reclamation activities in the State. The amendment also describes the realty and environmental compliance activities that will support this function of the State's AMLR program. OSM published an announcement of proposed rulemaking on the Indiana amendment and requested public comment on January 14, 1993 (58 FR 4374). The public comment period closed on February 16, 1993. On March 26, 1993 (58 FR 16379), OSM published a correction of the address of the Indiana Department of Natural Resources (IDNR) which was printed in the January 14, 1993, proposed rule document. On October 29, 1993 (Administrative Record Number IND-1303), OSM received from Indiana a revised version of the Indiana plan amendment. The proposed revisions were intended to address OSM's comments on the original amendment. OSM published an announcement of the proposed revisions to the initial submittal of the Indiana plan amendment and reopened the public comment period on December 6, 1993 (58 FR 64212). The public comment period closed on December 20, 1993. By letter dated June 27, 1994 (Administrative Record Number IND- 1381) Indiana submitted a second revised version of the Indiana plan amendment. The proposed revision contains two changes which are intended to address OSM's comments on the October 29, 1993 revised version of the Indiana plan amendment. III. Director's Findings Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15, are the Director's findings concerning the proposed amendment. Revisions not specifically discussed below concern nonsubstantive wording changes, or revise cross-references and paragraph notations to reflect organizational changes resulting from this amendment. The following information is contained in Indiana's formal submission to OSM pursuant to the guidelines published in the Federal Register, 47 FR 42729 (September 29, 1982), as to its authority and procedures for implementing an emergency response reclamation program based on the provisions in Section 410 of the Surface Mining Control and Reclamation Act of 1977, Pub. L. 95-87 (SMCRA). 1. The agency designated by the Governor as authorized to receive grants and administer an emergency program. 2. A legal opinion from the chief legal officer that the designated agency has the authority under State law to conduct the emergency program in accordance with the requirements of Section 410 of Title IV of the Act. 3. A description of the policies and procedures to be followed by the designated agency in conducting the reclamation program including: a. The purpose of the emergency response reclamation activities to be undertaken by the Indiana Department of Natural Resources, Division of Reclamation is to enter upon any land where an emergency exists and on any other land to have access to the land where the emergency exists and restore, reclaim, abate, control or prevent the adverse effect of coal mining practices and to do all things necessary or expedient to protect the public health, safety, or general welfare. For the purposes of this plan amendment emergency is defined as a sudden danger or impairment that presents a high probability of substantial physical harm to the health, safety, or general welfare of people before the danger can be abated under normal program operation procedures. b. The Indiana Department of Natural Resources will assume authority for all emergency projects within Indiana and will coordinate work with the Federal Office of Surface Mining Reclamation and Enforcement (OSM). Coordination with other state or local agencies will be on a project specific basis. The Department of Administration will be a key component in the procurement of goods and services for emergency work. Assistance is also available from the Indiana Department of Transportation and the Indiana State Emergency Management Agency. All investigations and eligibility findings required by Title IV of SMCRA will be conducted by the Division of Reclamation. This information on emergency investigations will be provided to OSM. Once OSM makes a finding of fact that an emergency situation exists, the state will undertake the specific construction efforts approved by OSM to abate the declared emergency situation. c. Land acquisition for emergency projects will follow the guidelines as stated in Indiana's approved State Plan. The state will acquire lands in emergency situations where no other practical means are available to abate an immediate threat to the health, safety or general welfare of its citizens. Policies, procedures and authority to acquire lands is clearly detailed in the approved State Plan in the sections entitled Land Acquisition, Management and Disposal. Indiana does not consider land acquisition to be a preferred step in reclamation projects and will therefore proceed with this option only under unique circumstances. d. The policies and procedures for emergency reclamation on private and public lands will be the same as for other AML reclamation activities and detailed in the approved State Plan at 884.13(c)(5) and (6). e. The Indiana Department of Natural Resources may enter on any land where an emergency exists or on adjacent lands for access, in order to protect the public health, safety or general welfare from adverse effects of coal mining. It is the policy of the State of Indiana to respect the rights of private ownership, and the state will make all reasonable efforts to obtain a written consent from the owner of record in advance of emergency reclamation. The consent for right of entry shall be in the form of a signed agreement with the land owner or the authorized agent. f. The Indiana Department of Natural Resources will publish a legal notice in a general circulation newspaper within each county potentially affected by this emergency program assumption. These legal notices will provide for a thirty-day comment period and will include the possibility of conducting public meetings in order to resolve any issues of general concern. Each notice will include a statement of availability of this emergency reclamation amendment package. All comments received on this amendment will be incorporated by reference to this document and made available to any interested parties. 4. A description of the administrative and managerial structure to be used in conducting the emergency reclamation program including: a. The organizational and management structure to be utilized by the Division of Reclamation for the emergency program will be the same as established for the other Title IV AML program operations and is contained within the approved State Plan. Key positions in the emergency program operations and their responsibilities are detailed below. Inventory Specialist--responsible for initial investigation of all potential emergency situations. Compiles all pertinent information at each site to allow for consistent evaluation of the degree of seriousness and level of response necessary. Conducts initial coordination with other Division of Reclamation employees as well as other organizations and/or individuals necessary to insure proper response, protection and control. Assistant Director for Restoration Program--makes final determination for the State on the status of each potential emergency. Will act as primary contact point for the Division of Reclamation in relations with the Department of Administration and the Federal Office of Surface Mining. Project Manager Supervisor--responsible for insuring that all emergency abatement contract work is performed by the contractor in accord with the agreed terms and conditions of the contract. Will conduct pre-bid meetings with potential contractors if time permits. Emergency Program Coordinator--The Division of Reclamation intends to fill this position with a registered professional engineer who will be capable of coordinating all emergency program activities as well as providing expert testimony for those program situations that become subject to litigation. This position will insure that all requirements of the emergency program are executed consistently and in accord with all declared policies, plans and procedures. Additional responsibilities of this position may include, but will not be limited to: coordination with the Department of Insurance and the insurance industry on all matters related to the subsidence insurance program, design engineer for emergency reclamation, contract and bid officer for securing emergency reclamation, and field inspector for approval of reclamation work. b. The Division of Reclamation does anticipate the need for additional staff in order to conduct the emergency reclamation program. The State also reserves the right to add staff in the future if through practical experience it becomes apparent that need exists. Technical skills currently available at the Division of Reclamation that will be available and utilized in the emergency reclamation program include: field investigation staff, realty professionals, subsidence and structural engineers, hydrologists, soils professionals, construction inspectors, and geologists. Any and all staff of the Division of Reclamation will be used as needed. c.i. Administrative procedures for investigating and reporting emergency complaints will include on-site visitation by a qualified staff member to make findings of fact and to document through a written report and photograph the current status of the complaint. A complaint information gathering guide will aid in complaint investigation. Emergency response will entail having a qualified staff member on-site as soon as is practicable. Urgency of the response time will be determined by the initial description of the complaint received. c.ii. As soon as is practical, eligibility information will be obtained and reported for each potential emergency. This information will include written determination of: (1) whether the site was mined for coal; (2) the dates, types, and operations of any and all mines at the site, and (3) the existence of any continuing reclamation responsibility at the site. This information will be provided to the appropriate legal staff in order to allow them to make an eligibility determination for emergency reclamation. It is desirable but not necessary to have all required legal documents completed prior to initiating emergency reclamation activities. c.iii. All rights of entry and necessary appraisals will be executed according to the procedures outlined above and as described in the approved State Plan. It is desirable but not necessary to have all required realty documents completed prior to initiating emergency reclamation activities. c.iv. Administrative procedures for project supervision will be the responsibility of the assigned project manager and will fit within the approved administrative structure of the Division of Reclamation as outlined in the approved State Plan. c.v. Final project inspection and preparation and submission of final project reports will be conducted in conjunction with the OSM Indianapolis field office. The assigned project manager and the pertinent grants staff of the division of Reclamation will be responsible for the preparation of all technical, programmatic and financial reports and documents. Approval by administrative staff of the Division of Reclamation of all reports to OSM will be required. d. The purchasing and procurement systems to be used by the Department of Natural Resources, Division of Reclamation under the emergency reclamation program will be those currently used for securing goods and services under other aspects of the AML program, with the following special conditions: 1. Emergency reclamation will have priority over all other requests originating within the Division of Reclamation. 2. Purchase orders for emergency work will be ``hand carried'' through the administrative system to allow approval within the shortest time frame possible. 3. A list of potential contractors and/or suppliers will be maintained for ready reference quick contact by the Restoration Section. This list will be updated as necessary to include all capable potential contractors. 4. In most cases, work will be allowed to proceed on the basis of verbal approval and a commitment for written follow-up. 5. The Division of Reclamation has developed, and is using, an emergency reclamation contracting system that expedites the securing of abatement work. e. The accounting system to be used by the Division of Reclamation for the emergency program projects will be the same as currently utilized for all other AML reclamation projects. Emergency program accounting will be on a project basis. All emergency project obligations, payments and drawdowns will be tracked individually and separately and will be done in accord with Federal requirements. f. The Division of Reclamation has expertise in the disciplines necessary to implement the emergency program. Staff engineers have a great deal of experience in reclamation designs for all types of problems anticipated to be encountered in the emergency program. These may include, but are not limited to: filling and/or sealing mine openings or subsidence, monitoring, grouting under or stabilizing ground affected by area subsidence or slides, refuse fires, roadway failures, and flooding due to clogged streams. The Emergency Program Coordinator will specialize in correction of emergency events and will be the lead staff person with support from the expertise of other Division of Reclamation specialists. Technical consultation will be available to staff from OSM, U.S. Bureau of Mines, consultants, and the Indiana Division of Engineering among others. Technical capability to supervise emergency work is the same as the Division of Reclamation's project managers currently use to perform on-site supervision and inspection of other AML projects. Procedures for field supervision will evolve as Indiana's experience in emergency reclamation grows. However, the existing field operations manual provides an excellent starting point of all emergency reclamation supervision. 5. A general description, derived from available data, of emergency reclamation activities to be conducted, including known or suspected geographical areas within the State, including: a. The OSM has been conducting emergency reclamation for almost twelve years in the State of Indiana. There have been approximately 190 emergency investigations, with 85 declared or given emergency status. The majority of all emergency projects have been related to subsidence (71), while shaft openings (9), slides (4), and refuse fires (1) account for the balance of declared emergencies. The distribution by county of both emergency projects and investigations has been documented. b. Emergencies related to subsidence have been primarily the result of small pit type subsidence. This subsidence is customarily associated with shallow underground mining. The potential for future emergency reclamation due to subsidence is very large and widespread in the Indiana coal fields. 6. Narrative description which supports the State's position that the procedures, personnel and other proposed aspects of its program give evidence of its abilities to promptly and effectively mitigate the full range of anticipated emergency conditions: The objectives of the Indiana abandoned mine land program are to fulfill the general reclamation objectives set out in Section 403 of P.L. 95-87. The highest priorities of the program are the protection of public health, safety and general welfare from dangers resulting from the adverse effects of past coal mining. The emergency response program described in this document provides an additional means whereby the State of Indiana will be able to protect its citizens from these adverse effects consistent with the intent of Section 410 of P.L. 95- 87. Indiana has the procedures, personnel, and administrative functions within the Department of Natural Resources to capably and effectively manage the emergency program as described in the previous sections, and is willing and able to work with OSM to insure its success. An additional objective of the State of Indiana in assuming the administration of the emergency program from OSM is to provide continued protection to the citizens of this state. The State of Indiana must secure cooperation from OSM in providing prompt emergency declaration as well as complete and adequate grant funding to carry out the work. In accordance with section 405 of SMCRA, OSM finds that Indiana submitted an amendment to its AMLR plan, subsequently revised and clarified, and it has been determined, pursuant to 30 CFR 884.15, that: 1. The State provided adequate notice and opportunity for public comment in the development of the amendment and the record does not reflect major unresolved controversies. 2. Views of other Federal agencies having an interest in the plan have been solicited and considered. 3. The State has the legal authority, policies and administrative structure necessary to implement the amendment. 4. The proposed plan amendment meets all requirements of the OSM AMLR program provisions. 5. The State has an approved Surface Mining Regulatory Program. 6. The amendment is in compliance with all applicable State and Federal laws and regulations. The Director finds therefore, that the proposed Indiana plan amendment allowing the State to assume responsibility for an emergency response reclamation program on behalf of OSM is no less stringent than SMCRA and no less effective than the Federal regulations and can be approved. IV. Summary and Disposition of Comments Public Comments The Director solicited public comments and provided an opportunity for a public hearing on the proposed amendment. No public comments were received, and because no one requested an opportunity to speak at a public hearing, no hearing was held. Federal Agency Comments Pursuant to 30 CFR 884.14(a)(2) and 884.15(a), the Director solicited comments on the proposed amendment from various other Federal agencies with an actual or potential interest in the Indiana plan. In response to the original submittal (November 17, 1992), the U.S. Department of Agriculture (USDA), Forest Service responded and stated that it had no comments. In response to the December 6, 1993, reopening of the public comment period, the USDA, Soil Conservation Service (SCS) responded and stated that they did not see where the proposed language would impact the Rural Abandoned Mine Program administered by the SCS. The U.S. Bureau of Mines responded and stated that it has no comment. Environmental Protection Agency (EPA) Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain the written concurrence of the Administrator of the EPA with respect to any provisions of a State 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.). The Director has determined that this amendment contains no provisions in these categories and that EPA's concurrence is not required. Pursuant to 732.17(h)(11)(i), OSM solicited comments on the proposed amendment from EPA (Administrative Record No. IND-1303). EPA did not respond to OSM's request. V. Director's Decision Based on the above findings, the Director approves the proposed AMLR plan amendment as submitted by Indiana on November 17, 1992, and revised on October 29, 1993, and on June 27, 1994. The Federal regulations at 30 CFR 914.25, codifying decisions concerning the Indiana plan, are being amended to implement this decision. This final rule is being made effective October 26, 1994. VI. Procedural Determinations Executive Order 12866 This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review). Executive Order 12778 The Department of the Interior has conducted the reviews required by section 2 of Executive Order 12778 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 and Tribal abandoned mine land reclamation plans and revisions thereof since each such plan is drafted and adopted by a specific State or Tribe, not by OSM. Decisions on proposed State and Tribal abandoned mine land reclamation plans and revisions thereof submitted by a State or Tribe are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the Federal regulations at 30 CFR Parts 884 and 888. National Environmental Policy Act No environmental impact statement is required for this rule since agency decisions on proposed State and Tribal abandoned mine land reclamation plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior [516 DM 6, appendix 8, paragraph 8.4B(29)]. Paperwork Reduction Act This rule does not contain information collection requirements that require approval by the Office of Management and Budget 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 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. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions in the analyses for the corresponding Federal regulations. List of Subjects in 30 CFR Part 914 Intergovernmental relations, Surface mining, Underground mining. Dated: October 19, 1994. Ed Kay, Deputy Director. For the reasons set out in the preamble, Title 30, Chapter VII, Subchapter T of the Code of Federal Regulations is amended as set forth below: PART 914--INDIANA 1. The authority citation for Part 914 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. 2. In Section 914.25, paragraph (c) is added to read as follows: Sec. 914.25 Amendments to approved Indiana abandoned mine land reclamation plan. * * * * * (c) The Indiana plan amendment allowing the State to assume responsibility for an emergency response reclamation program on behalf of OSM, as submitted on November 17, 1992, and revised on October 29, 1993, and June 27, 1994, is approved effective October 26, 1994. [FR Doc. 94-26464 Filed 10-25-94; 8:45 am] BILLING CODE 4310-05-M