[Federal Register Volume 61, Number 70 (Wednesday, April 10, 1996)] [Rules and Regulations] [Pages 15891-15895] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-8920] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 914 [SPATS No. IN-133-FOR; Amendment No. 95-11] Indiana Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule; approval of amendment. ----------------------------------------------------------------------- SUMMARY: OSM is approving, with additional requirements, a proposed amendment to the Indiana regulatory program (hereinafter referred to as the ``Indiana program'') under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Indiana proposed revisions to the Indiana Surface Coal Mining and Reclamation Act (ISCMRA) as enacted by the Indiana General Assembly (1995) in House Enrolled Act 1575 (HEA 1575). The proposed amendment concerns lands eligible for remining, responsibilities of the director of Indiana Department of Natural Resources (IDNR), and surface and underground tonnage fees. The amendment is intended to revise the Indiana program to be consistent with SMCRA and to incorporate State initiatives. The proposed revisions concerning lands eligible for remining are intended to provide incentives for the remining and reclamation of previously mined and inadequately reclaimed lands eligible for expenditures under section 402(g)(4) or 404 of SMCRA as provided for by the Energy Policy Act of 1992. EFFECTIVE DATE: April 10, 1996. FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director, Indianapolis Field Office, Office of Surface Mining Reclamation and Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania [[Page 15892]] Street, Room 301, Indianapolis, Indiana 46204-1521, Telephone (317) 226-6700. SUPPLEMENTARY INFORMATION: I. Background on the Indiana Program II. Submission of the Proposed Amendment III. Director's Findings IV. Summary and Disposition of Comments V. Director's Decision VI. Procedural Determinations I. Background on the Indiana Program On July 29, 1982, the Secretary of the Interior conditionally approved the Indiana program. Background information on the Indiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval can be found in the July 26, 1982, Federal Register (47 FR 32107). Subsequent actions concerning the conditions of approval and program amendments can be found at 30 CFR 914.10, 914.15, and 914.16. II. Submission of the Proposed Amendment By letter dated September 11, 1995 (Administrative Record No. IND- 1509), Indiana submitted a proposed amendment to its program pursuant to SMCRA. Indiana submitted the proposed amendment at its own initiative. HEA 1575 amends ISCMRA by adding new sections and revising existing sections to recodified Indiana Code (IC) 14-8 and 14-34. The proposed amendment adds new definitions for lands eligible for remining at IC 14-8-2-144.5 and unanticipated event or condition at IC 14-8-2- 285.5; amends recodified IC 14-34-2-4, Responsibilities of the director of IDNR; adds IC 14-34-4-8.5, Permit finding concerning an unanticipated event or condition on lands eligible for remining; adds IC 14-34-4-10.5, Permit application requirement concerning unanticipated events or conditions; amends recodified IC 14-34-10- 2(b)(23), Revegetation responsibility periods; amends recodified IC 14- 34-13-1, Reclamation fee requirement for surface coal mining operations; amends recodified IC 14-34-13-2, Reclamation fee requirement for underground coal mining operations; and amends recodified IC 14-34-19-2, Lands and water eligible for reclamation or drainage abatement expenditures. The recodification of the current provisions of ISCMRA is proposed in Indiana's Program Amendment No. 95- 10, and it is discussed in a separate final rule. OSM announced receipt of the proposed amendment in the January 22, 1996, Federal Register (61 FR 1549), and in the same document opened the public comment period and provided an opportunity for a public hearing on the adequacy of the proposed amendment. The public comment period closed on February 21, 1996. III. Director's Findings Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the proposed amendment. Revisions not specifically discussed below concern nonsubstantive wording changes, or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment. 1. IC 14-8-2-144.5 Definition of ``Lands Eligible for Remining'' Indiana proposed a definition at IC 14-8-2-144.5 to define the term ``lands eligible for remining'' to mean those lands that are eligible for funding under IC 14-34-19 or section 402(g)(4) of SMCRA. Section 701(34) of SMCRA defines the term ``lands eligible for remining'' to mean those lands that would otherwise be eligible for expenditures under section 404 or 402(g)(4) of SMCRA. Indiana's statute at IC 14-34-19 that is referenced in its definition is the State counterpart provision to section 404 of SMCRA in the Federal definition. Therefore, the Director finds that Indiana's proposed definition of ``lands eligible for remining'' at IC 14-8-2-144.5 is no less stringent than the definition at section 701(34) of SMCRA. 2. IC 14-8-2-285.5 Definition of ``Unanticipated Event or Condition'' Indiana proposed a definition of ``unanticipated event or condition'' at IC 14-8-2-285.5 that is substantively identical to the Federal definition at section 701(33) of SMCRA. Therefore, the Director finds that the proposed definition at IC 14-8-2-285.5 is no less stringent than SMCRA. 3. IC 14-34-2-4(a)(7) and (b) Responsibilities of the Director of IDNR Indiana proposed to amend recodified IC 14-34-2-4 [previously IC 13-4.1-2-2(b)] by adding new paragraph (7) to subsection (a) and adding new subsection (b). At IC 14-34-2-4(a)(7) and (b), Indiana is proposing to allow the Director of IDNR to submit formal state program amendments to OSM only after the amendment has been approved by the governor of Indiana or has become law. Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, the Federal regulation at 30 CFR 732.17(g) requires that proposed changes to laws or regulations that make up the approved State program be submitted to the Director as an amendment and that they shall not take effect for purposes of a State program until approved as an amendment. However, neither SMCRA nor the Federal regulations contain specific requirements regarding the administrative or legislative procedures in the State for rulemaking. Therefore, since the Director of IDNR must still submit formal State program amendments to OSM, the Director finds the proposed revisions at IC 14-34-2-4(a)(7) and (b) do not render the Indiana program less stringent than SMCRA or less effective than the Federal regulations. 4. IC 14-34-4-8.5 Permit Findings Indiana is proposing that the finding required by IC 14-34-4- 7(a)(6) and prohibition on the issuance of a permit in IC 14-34-4-8 do not apply to a violation resulting from an unanticipated event or condition at a surface coal mining operation on lands eligible for remining under a permit held by the applicant. The proposed provision at IC 14-34-4-8.5 is consistent with the provisions in section 510(e) of SMCRA, which establishes an exemption from the permit blocking provisions of section 510(c) of SMCRA for any violation resulting from an unanticipated event or condition occurring on a remining site, with two exceptions. First, Indiana did not propose a counterpart to SMCRA's limiting language ``after the date of enactment of this subsection'' that specified when a violation must have occurred to be eligible for the exemption. The permit block exemption in section 510(e) of SMCRA applies to violations that occurred subsequent to October 24, 1992. Second, Indiana did not limit the authority of IC 14-34-4-8.5 to September 30, 2004. Section 510(e) of SMCRA specifies that its authority terminates on September 30, 2004. The Federal implementing regulation at 30 CFR 773.15(b)(4)(i)(C) qualified this termination requirement by specifying that the prohibitions do not apply to permits issued before September 30, 2004, or any renewals thereof. Since IC 14-34-4-8.5 is consistent with the other provisions and the intent of section 510(e) of SMCRA, the Director is approving it with the requirement that Indiana propose implementing regulations that include the two limiting provisions. Indiana is to propose implementing regulations consistent [[Page 15893]] with the Federal regulation at 30 CFR 773.15(b)(4)(i), as added on November 27, 1995 (60 FR 58480), that limits the permit block exemption to those violations that occur after October 24, 1992, and to those permits issued before September 30, 2004, or any renewals thereof. 5. IC 14-34-4-10.5 Permit Application Requirement for Remining Operations The proposed statute at IC 14-34-4-10.5 authorizes Indiana to require identification of potential problems in a permit application for lands eligible for remining. Indiana proposed to add subsection (a) to require that an applicant make a good faith effort to identify potential problems that may result in an unanticipated event or condition in the permit application. Subsection (b) specifies that ``an event or condition that arises despite substantial adherence to the applicable operation and reclamation plan may be considered unanticipated if it was not identified in the application for the governing permit.'' There is no direct counterpart language in section 510(e) of SMCRA. However, the Federal regulations at 30 CFR 773.15(b)(4), 773.15(c)(13), and 785.25 were developed to implement the ``unanticipated event or condition'' provisions of section 510(e) of SMCRA pertaining to permit applications for lands eligible for remining. Sections 773.15(c)(13)(ii) and 785.25(b)(1) contain language similar to IC 14- 34-4-10.5(a) by requiring the permit application to identify potential environmental and safety problems related to prior mining activity at the site. Therefore, the Director finds that the proposed statute at IC 14-34-4-10.5 is not inconsistent with SMCRA. However, the Federal regulations contain additional requirements not considered in the Indiana statute, and he is approving it with the requirement that Indiana amend its program to provide implementing regulations consistent with the Federal regulations. The Director is requiring Indiana to amend its regulations at 310 IAC 12-3-112 consistent with 30 CFR 773.15(b)(4), pertaining to review of violation requirements and with 30 CFR 773.15(c)(13), pertaining to written findings for permit application approval, as added on November 27, 1995 (60 FR 58480). He is also requiring Indiana to amend its regulations at 310 IAC 12-3 consistent with 30 CFR 785.25 (a) through (c), pertaining to permitting requirements for lands eligible for remining, as added on November 27, 1995 (60 FR 58480). 6. IC 14-34-10-2(b)(23) Revegetation Responsibility Periods a. IC 14-34-10-2(b)(23)(A). Indiana proposed to amend recodified IC 14-34-10-2(b)(23) [previously IC 13-4.1-8-1(20)] by limiting the requirement for 5 years of revegetation responsibility to those lands not eligible for remining by adding the language ``on lands not eligible for remining'' to the existing provision pertaining to a 5- year responsibility period. This provision was designated subdivision (23)(A). Although not specifically stated, the 5-year revegetation responsibility period requirement in section 515(20)(A) of SMCRA also pertains to lands not eligible for remining. Therefore, the Director finds IC 14-34-10-2(b)(23)(A) is no less stringent than section 515(20)(A) of SMCRA. b. IC 14-34-10-2(b)(23)(B). Indiana proposed to add new subdivision (23)(B) that allows a 2-year responsibility period for lands eligible for remining. Section 515(20)(B) of SMCRA and the amended implementing Federal regulations at 30 CFR 816/817.116(c)(2)(ii) also allow a 2-year responsibility period for lands eligible for remining. However, section 510(e) of SMCRA specifies that the authority of section 515(b)(20)(B) shall terminate on September 30, 2004. The Federal implementing regulations at 30 CFR 816/817.116(c)(2)(ii) qualify this termination requirement by specifying permits issued before September 30, 2004, or any renewals thereof. The proposed Indiana statute does not contain this termination language. Since IC 14-34-10-2(b)(23)(B) is consistent with the other provision language and the intent of section 515(b)(20)(B) of SMCRA, the Director is approving it with the requirement that Indiana propose implementing regulations that contain the termination language. Indiana is to amend its regulations at 310 IAC 12-4-7, period of liability, by proposing provisions consistent with the Federal regulations at 30 CFR 816/817.116(c)(2)(ii), as added on November 27, 1995 (60 FR 58480), pertaining to the 2-year revegetation period of responsibility for lands eligible for remining and to the limitation of the provisions to permits issued before September 30, 2004, or any renewals thereof. 7. IC 14-34-13-1 Reclamation Fee for Surface Coal Mining Operations and IC 14-34-13-2 Reclamation Fee for Underground Coal Mining Operations Indiana proposed to amend recodified IC 14-34-13 [previously IC 13- 4.1-3-2]. Indiana proposed to limit the provision at IC 14-34-13-1 to surface coal mining operations, to change the reclamation fee for surface coal mining operations from five and one-half cents per ton of coal produced to three cents, and to remove the language which required fees to be paid only until July 1, 1995. Indiana proposed to add a new provision at IC 14-34-13-2(a) pertaining to reclamation fees for underground coal mining operations with support facilities located within Indiana and to change the reclamation fee for these operations from five and one-half cents per ton of coal produced to two cents. Indiana also proposed to remove the language which required fees to be paid only until July 1, 1995, from its existing provision in IC 14-34- 13-2 and to redesignate it as subsection (b). This provision requires underground coal mining operations that have no support facilities located within Indiana but produce coal from reserves located within Indiana to pay a reclamation fee of one cent per ton of coal produced. The fees from surface and underground coal mining operations are deposited into the natural resources reclamation division fund for administration of the Indiana program. Section 507(a) of SMCRA provides that an application for a surface coal mining and reclamation permit shall be accompanied by a fee determined by the regulatory authority. Such fee may be less than, but shall not exceed the actual or anticipated cost of reviewing, administering, and enforcing the permit. The regulatory authority may develop procedures to allow the fee to be paid over the term of the permit. After a review of the projected income from the proposed fees, the Director finds that the income will be less than the anticipated cost of reviewing, administering, and enforcing permits under the Indiana program. Therefore, the proposed changes in Indiana's provisions at IC 14-34-13-1 and IC 14-34-13-2 pertaining to permit fee amounts do not render these previously approved sections less stringent than section 507(a) of SMCRA. 8. IC 14-34-19-2 Eligibility of Lands for Reclamation and Restoration Under the Abandoned Mine Land Program Indiana proposed to amend recodified IC 14-34-19-2 [previously IC 13-4.1-15-2] by designating the existing language as subsection (a) and by adding new subsection (b). New subsection (b) specifies that ``surface coal mining operations on lands eligible for remining do not affect the eligibility of the lands for reclamation and restoration under this chapter after the [[Page 15894]] release of the bond or deposit for the operation under IC 14-34-6.'' The language in the new provision at IC 14-34-19-2(b) is substantively identical to the Federal counterpart provision in section 404 of SMCRA. Therefore, the Director finds the proposed revisions to IC 14-34-19-2 do not render it less stringent than section 404 of SMCRA, and he is approving them. IV. Summary and Disposition of Comments Public Comments The Director solicited public comments and provided an opportunity for a public hearing on the proposed amendment. No public comments were received, and because no one requested an opportunity to speak at a public hearing, no hearing was held. Federal Agency Comments Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited comments on the proposed amendment from various Federal agencies with an actual or potential interest in the Indiana program (Administrative Record No. IND-1514). No comments were received. Environmental Protection Agency (EPA) Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the written concurrence of the EPA with respect to those provisions of the proposed program amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Indiana proposed to make in this amendment pertain to air or water quality standards. Therefore, OSM did not request EPA's concurrence. Pursuant to 732.17(h)(11)(i), OSM solicited comments on the proposed amendment from EPA (Administrative Record No. IND-1514). EPA did not respond. State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP) Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit comments on proposed amendments which may have an effect on historic properties from the SHPO and ACHP. OSM solicited comments on the proposed amendment from the SHPO and ACHP (Administrative Record No. IND-1514). Neither SHPO nor ACHP responded to OSM's request. V. Director's Decision Based on the above findings, the Director approves, with additional requirements, the proposed amendment as submitted by Indiana on September 11, 1995. The Director approves, as discussed in: finding No. 1, IC 14-8-2- 144.5, concerning a definition of ``lands eligible for remining''; finding No. 2, IC 14-8-2-285.5, concerning a definition of ``unanticipated event or condition''; finding No. 3, IC 14-34-2-4(a)(7) and (b), concerning responsibilities of the director of IDNR; finding No. 6.a., IC 14-34-10-2(b)(23)(A), concerning a 5-year revegetation responsibility period; finding No. IC 14-34-13-1 and 2, concerning reclamation fees for surface and underground coal mining operations; and finding No. 8, IC 14-34-19-2, concerning eligibility of lands for reclamation and restoration under the abandoned mine land program. With the requirement that Indiana further revise its rules, the Director approves, as discussed in: finding No. 4, IC 14-34-4-8.5, concerning violations resulting from an unanticipated event or condition occurring on a remining site; finding No. 5, IC 14-34-4-10.5, concerning identification of potential problems in a permit application for lands eligible for remining; and finding No. 6.b, IC 14-34-10- 2(b)(24), concerning a 2-year revegetation responsibility period for lands eligible for remining. In accordance with 30 CFR 732.17(f)(1), the Director is also taking this opportunity to clarify in the requirement amendment section at 30 CFR 914.16 that, within 60 days of the publication of this final rule, Indiana must either submit a proposed written amendment, or a description of an amendment to be proposed that meets the requirements of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is consistent with Indiana's established administrative or legislative procedures. The Federal regulations at 30 CFR Part 914, codifying decisions concerning the Indiana program, are being amended to implement this decision. This final rule is being made effectively immediately to expedite the State program amendment process and to encourage States to bring their programs into conformity with the Federal standards without undue delay. Consistency of State and Federal standards is required by SMCRA. Effect of Director's Decision Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) provide that an amendment shall not take effect for purposes of a State program until approved by OSM. In the oversight of the Indiana program, the Director will recognize only the statutes, regulations and other materials approved by OSM, together with any consistent implementing policies, directives and other materials, and will require the enforcement by Indiana of only such provisions. VI. Procedural Determinations Executive Order 12866 This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review). Executive Order 12778 The Department of the Interior has conducted the reviews required by section 2 of Executive Order 12778 (Civil Justice Reform) and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met. National Environmental Policy Act No environmental impact statement is required for this rule since section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the [[Page 15895]] Paperwork Reduction Act (44 U.S.C. 3507 et seq.). Regulatory Flexibility Act The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal which is the subject of this rule is based upon corresponding Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the corresponding Federal regulations. List of Subjects in 30 CFR Part 914 Intergovernmental relations, Surface mining, Underground mining. Dated: April 3, 1996. Brent Wahlquist, Regional Director, Mid-Continent Regional Coordinating Center. For the reasons set out in the preamble, Title 30, Chapter VII, Subchapter T of the Code of Federal Regulations is amended as set forth below: PART 914--INDIANA 1. The authority citation for Part 914 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. 2. Section 914.15 is amended by adding paragraph (ppp) to read as follows: Sec. 914.15 Approval of regulatory program amendments. * * * * * (ppp) The amendment submitted by Indiana to OSM by letter dated September 11, 1995, is approved effective April 10, 1996. 3. Section 914.16 is revised to add paragraph (hh) to read as follows: Sec. 914.16 Required program amendments. * * * * * (hh) By June 10, 1996, Indiana shall submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption of proposed revisions to the Indiana program to provide implementing regulations for IC 14-34-4-8.5, concerning violations resulting from an unanticipated event or condition occurring on a remining site; IC 14-34-4-10.5, concerning identification of potential problems in a permit application for lands eligible for remining; and IC 14-34-10-2(b)(24), concerning a 2-year revegetation responsibility period for lands eligible for remining. Specifically, Indiana shall amend 310 IAC 12-3-112 by adding a counterpart to 30 CFR 773.15(b)(4) and 30 CFR 773.15(c)(13), as added on November 27, 1995 (60 FR 58480); shall amend 310 IAC 12-3 by adding a counterpart to 30 CFR 785.25, as added on November 27, 1995 (60 FR 58480); and shall amend 310 IAC 12-4-7 by adding counterpart to 30 CFR 816/817.116(c)(2)(ii), as added on November 27, 1995 (60 FR 58480). [FR Doc. 96-8920 Filed 4-9-96; 8:45 am] BILLING CODE 4310-05-M