Permanent program and abandoned mine land reclamation plan submissions: Indiana,

[Federal Register: November 22, 1999 (Volume 64, Number 224)]

[Rules and Regulations]

[Page 63681-63684]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22no99-23]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-143-FOR; State Program Amendment No. 98-5]

Indiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) is approving an amendment to the Indiana regulatory program (Indiana program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Indiana proposed revisions to rules

[[Page 63682]]

concerning revegetation standards for success for nonprime farmland for surface and underground coal mining and reclamation operations under Indiana Code (IC) 14-34. Indiana intends to revise its program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: November 22, 1999.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director, Indianapolis Field Office, Office of Surface Mining, Minton-Capehart Federal Building, 575 North Pennsylvania Street, Room 301, Indianapolis, Indiana 46204-1521. Telephone (317) 226-6700. Internet: INFOMAIL@indgw.osmre.gov.

SUPPLEMENTARY INFORMATION:

1. 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

1. Background on the Indiana Program

   On July 29, 1982, the Secretary of the Interior conditionally approved the Indiana program. 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 32107). You can find later actions on the Indiana program at 30 CFR 914.10, 914.15, 914.16, and 914.17.

2. Submission of the Proposed Amendment

   By letter dated August 2, 1999 (Administrative Record No. IND- 1664), Indiana sent us an amendment to its program under SMCRA. This amendment replaces State Program Amendment No. 95-2, which we approved in the May 30, 1995, Federal Register (60 FR 28069). Indiana sent the amendment, which amends the Indiana Administrative Code (IAC), at its own initiative.

   We announced receipt of the amendment in the August 16, 1999, Federal Register (64 FR (44448)). 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. The public comment period closed on September 25, 1999. Because no one requested a public hearing or meeting, we did not hold one.

3. Director's Findings

   Following, under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are our findings concerning the amendment.

   1. Withdrawal of Previously Approved Amendment

      Indiana notified us in its letter dated July 24, 1997 (Administrative Record No. IND-1670), that the statutory time frame for approving State Program Amendment No. 95-2 had expired prior to final approval. We approved this amendment, dated May 3, 1995 (Administrative Record No. IND-1460), on September 14, 1995 (60 FR 47692). Since Indiana did not adopt the amendment, we are removing our approval and amending 30 CFR 914.15 to reflect this decision.

   2. 310 IAC 12-5-64.1 (Surface) and 12-5-128.1 (Underground) Revegetation Standards for Success for Nonprime Farmland

      Since the revisions proposed for surface mining at Sec. 12-5- 64.1(c) are identical to those being proposed for underground mining at Sec. 12-5-128.1(c), they will be combined for ease of discussion. These subsections provide the standards for success which are to be applied under the approved postmining land uses. 1. Organizational and Reference Changes

      Indiana proposed paragraph notation changes to reflect the organizational changes made throughout subsections (c). Additionally, Indiana proposed revisions throughout subsections (c) to correct the reference to the ``Soil Conservation Service'' to the ``Natural Resources Conservation Service.''

      We find that the organizational and reference changes do not render the Indiana regulations at 310 IAC 12-5-64.1/128.1 less effective than the Federal regulations at 30 CFR 816.116/817.116. 2. Redesignations

      Indiana proposed to redesignate existing subsections (c)(5), (c)(6), (c)(7), and (c)(8) as subsections (c)(4), (c)(5), (c)(6), and (c)(7), respectively. We find that the proposed redesignations do not render the Indiana regulations at 310 IAC 12-5-64.1/128.1 less effective than the Federal regulations at 30 CFR 816.116/817.116. 3. Relocation of Existing Provisions

      Indiana proposed to delete the provisions at existing subsections (c)(4) and redesignated subsections (c)(6). These provisions require that if current Natural Resources Conservation Service predicted yield by soil map units are used to determine production of living plants, then the standard for success shall be a weighted average of the predicted yields for each unmined soil type which existed on the permit areas at the time the permit was issued. Indiana proposed to relocate these provisions to existing subsections (c)(3)(B) and redesignated subsections (c)(5)(B).

      Indiana also proposed to delete the provisions at redesignated subsections (c)(6) which require that once the method for establishing the standards has been selected, it may not be modified without the approval of the director of IDNR. Indiana proposed to relocate these provisions to redesignated subsections (c)(5)(E).

      We find that Indiana's relocation of these provisions does not render the Indiana regulations less effective than the Federal regulations and are approving the modifications. 4. Subsections (c)(3)(C), Pastureland Production Success Standards Methodology

      Indiana proposed to delete the language in existing subsections (c)(3)(C) for determining production of living plants on pastureland and replace it with the following:

      (C) A target yield determined by the following formula: Target Yield = NRCS Target Yield x (CCA/10 Year CA) where: NRCS Target Yield = the average yield per acre, as predicted by the Natural Resources Conservation Service, for the crop and the soil map units being evaluated. The most current yield information at the time of permit issuance shall be used, and shall be contained in the appropriate sections of the permit application. CCA = the county average for the crop for the year being evaluated as reported by the United States Department of Agriculture crop reporting service, the Indiana Agricultural Statistics Service. 10 Year CA = the ten (10) Year Indiana Agricultural Statistics Service county average, consisting of the year being evaluated and the nine (9) preceding years.

      The Federal regulations at 30 CFR 816/817.116(a)(2) require standards for success to include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover, production, or stocking. As discussed in the May 29, 1992, Federal Register (57 FR 22655), Indiana's average county yield data contains data of yields from previously mined lands. In letters dated February 26, 1992 (Administrative Record No. IND-1036 and IND-1037), OSM asked Indiana to clarify the use of this data. In letters dated March 20, 1992 (Administrative Record No. IND-1051 and IND-1052), Indiana stated that the amount of previously mined acreage

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      being farmed is so limited that the inclusion of these yields essentially has no impact upon the overall yields calculated for the county average. Indiana also stated that it used the average county yield data as a weather correction factor applied to predicted soil mapping unit yields.

      In the May 29, 1992, Federal Register (57 FR 22655, finding No. 1.c.), we found that the use of the Indiana average county yield data as the sole standard for determining success of revegetation would be less effective than the Federal regulations at 30 CFR 816/ 817.116(a)(2). However, we found that the use of Indiana's average county yield data as a correction factor would not be inconsistent with the Federal regulations.

      The currently proposed methodology is an acceptable way to calculate production standards for non-prime farmland pastureland. This method adjusts the weighted production standard based on soil type by using a factor derived by the county average and an average of the historical county average. The weighted production standard is already approved in the Indiana program and the adjustment of this standard by county average data is reasonable. Thus, we find that the proposed method for calculating success standards on nonprime farmland pasture at 310 IAC 12-5-64.1/128.1(c)(3)(C) is no less effective than the Federal requirements for success standards at 30 CFR 816/817.116(a)(2). 5. Subsections (c)(3)(D) and (c)(5)(D), Other Success Standards

      Indiana proposed to add subsections (c)(3)(D) and (c)(5)(D) to allow other methods approved by the director of the Indiana Department of Natural Resources (IDNR) to be used in determining success of production of living plants on revegetated nonprime farmland pasture land. This language has the same meaning as the language Indiana deleted at subsections (c)(3)(C) and (c)(5)(C). We previously approved the provisions at (c)(3)(C) and (c)(5)(C) on May 29, 1992 (57 FR 22655), with the understanding that Indiana will request our approval of other methods before using them in the Indiana program. By letters dated March 20, 1992 (Administrative Record No. IND-1051 and IND-1052), Indiana stated the IDNR will request OSM's approval for other standards prior to their use in the Indiana program if they vary significantly from the approved standards. Because the addition of the provisions at subsections (c)(3)(D) and (c)(5)(D) does not substantially change the approved Indiana program, we are approving them. 6. Subsections (c)(5)(C), Cropland Production Success Standards Methodology

      At redesignated subsections (c)(5)(C), Indiana proposed to delete the existing language for determining production of living plants on cropland and replace it with the following:

      (C) A target yield determined by the following formula: Target Yield = CCA x (NRCSP/NRCSC) where: CCA = the county average for the crop for the year being evaluated as reported by the United States Department of Agriculture crop reporting service, the Indiana Agricultural Statistics Service. NRCSP = the weighted average of the current Natural Resources Conservation Service predicted yield for each croppable, unmined soil which existed on the permit at the time the permit was issued. NRCSC = the weighted average of the current Natural Resources Conservation Service predicted yield for each croppable, unmined soil which is shown to exist in the county on the most current county soil survey. A croppable soil is any soil which the Natural Resources Conservation Service has defined as being in capability class I, II, III, or IV.

      The Federal regulations at 30 CFR 816/817.116(a)(2) require that standards for success shall include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover, production, or stocking. The above discussion in finding No. B.4, pertaining to Indiana's average county yield data containing data of yields from previously mined lands is also relevant to this proposed revision. As discussed in finding No. B.4, we had previously found that the use of Indiana's average county yield data as a correction factor was not inconsistent with the Federal regulations.

      Indiana's currently proposed methodology would modify the county average by a factor that uses the NRCS predicted standard for permitted unmined soils and an NRCS predicted standard that excludes mined land. Therefore, we are approving the provisions proposed at 310 IAC 12-5- 64.1/128.1(c)(5)(C).

4. Summary and Disposition of Comments

   Public Comments

   OSM requested public comments on the proposed amendment, but did not receive any.

   Federal Agency Comments

   Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Indiana program (Administrative Record No. IND-1665). By letter dated September 20, 1999, the Mine Safety and Health Administration (MSHA) responded to our request by stating that the proposed amendment does not conflict with MSHA regulations or policies (Administrative Record No. IND-1675).

   Environmental Protection Agency (EPA)

   Under 30 CFR 732.17(h)(11)(ii), we are required to get a written agreement from the 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 the EPA to agree on the amendment.

   Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. IND-1665). The 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 August 9, 1999, we requested comments on Indiana's amendment (Administrative Record No. IND-1665), but neither responded to our request.

5. Director's Decision

   Based on the above findings, we approve the amendment as sent to us by Indiana on August 2, 1999. We approve the rules that Indiana proposed with the provision that they be published 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 are making this final rule effective immediately to expedite the State program amendment process and to encourage Indiana to bring its program into conformity with the Federal standards. SMCRA requires consistency of State and Federal standards.

   For reasons discussed in finding III.A., we are also amending 30 CFR Part 914 by removing the approval of an amendment that Indiana submitted on May 3, 1995.

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6. Procedural Determinations

   Executive Order 12866

   The Office of Management and Budget (OMB) exempts this rule from review under Executive Order 12866 (Regulatory Planning and Review).

   Executive Order 12988

   The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 (Civil Justice Reform) and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each 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 State regulatory programs and program amendments 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

   This rule does not require an environmental impact statement since section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

   Paperwork Reduction Act

   This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

   Regulatory Flexibility Act

   The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal which is the subject of this rule is based upon corresponding Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Therefore, this rule will ensure that existing requirements previously published by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the corresponding Federal regulations.

   Unfunded Mandates

   OSM has determined and certifies under the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of $100 million or more in any given year on local, state, or tribal governments or private entities.

   List of Subjects in 30 CFR Part 914

   Intergovernmental relations, Surface mining, Underground mining.

   Dated: November 4, 1999. Charles E. Sandberg, Acting Regional Director, Mid-Continent Regional Coordinating Center.

   For the reasons set out in the preamble, 30 CFR Part 914 is amended as set forth below:

   PART 914--INDIANA

   1. The authority citation for Part 914 continues to read as follows:

      Authority: 30 U.S.C. 1201 et seq.

   2. Section 914.15 is amended in the table by removing the entire entry having the date ``May 3, 1995'' in the ``Original amendment submission date'' column, and 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

      Date of final publication

      Citation/description

      *

      *

      *

      *

      *

      * * August 2, 1999.......................... November 22, 1999.................... 310 IAC 12-5-64.1(c) and 128.1(c).

      [FR Doc. 99-30358Filed11-19-99; 8:45 am]

      BILLING CODE 4310-05-P