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 its statutes that would allow the use of money from its post-1977 abandoned mine reclamation fund, under specified circumstances, to replace domestic water supplies disrupted or affected by surface coal mining and reclamation operations. Indiana intends to revise its program in order to provide additional protection to society and the environment from the adverse effects of surface coal mining operations.

EFFECTIVE DATE:

May 26, 2000.

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:

I. Background on the Indiana Program

II. Submission of the 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. 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.

II. Submission of the Amendment

By letter dated February 25, 2000 (Administrative Record No. IND-1686), the Indiana Department of Natural Resources (department) sent us an amendment to its program under SMCRA and the Federal regulations at 30 CFR 732.17(b). The department sent the amendment at its own initiative. The amendment concerns revisions to the Indiana Surface Coal Mining and Reclamation Act at Indiana Code (IC) 14-34-6-15. The revisions made to IC 14-34-6-15 will allow the department to use money from its post-1977 abandoned mine reclamation fund to replace domestic water supplies disrupted or affected by surface coal mining and reclamation operations.

We announced receipt of the amendment in the March 9, 2000, Federal Register (65 FR 12492). 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 April 10, 2000. Because no one requested a public hearing or meeting, we did not hold one.

III. Director's Findings

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

IC 14-34-6-15 Abandoned Mine Reclamation Fund

Indiana revised IC 14-34-6-15(b) and (c) to read as follows:

(b) The post-1977 abandoned mine reclamation fund is established. The fund consists of bond forfeiture money collected under section 16 of this chapter and the civil penalties described in IC 14-34-16-9. The fund may be used as follows:

(1) To effect the restoration of land not otherwise eligible for federal funding on which there has been surface mining activity after August 3, 1977.

(2) To replace domestic water supplies disrupted or affected by a surface coal mining and reclamation operation, including the disposal of coal combustion waste (as defined in IC 13-19-3-3), where the surface coal mining and reclamation operation has been completed and is no longer subject to IC 14-34.

The money held for this purpose may not exceed an amount established by the department that is sufficient to enable the director to cover the anticipated cost of restoration.

(c) At least five hundred thousand dollars ($500,000) in the fund is dedicated as collateral for the bond pool under IC 14-34-8 and may not be used for the restoration of land or replacement of water described in subsection (b).

Indiana's post-1977 abandoned mine reclamation fund (fund) consists of both bond forfeiture and civil penalty monies. However, only the monies collected for civil penalties may be used for the purposes specified in IC 14-34-6-15(b). Under IC 14-34-6-16(f), the bond forfeiture monies are to be used solely for the purpose of reclaiming the forfeiture sites to which the bonds apply. Under IC 14-34-6-16(d), any excess forfeited bond money must be returned to the person from whom the amount was received. Under IC 14-34-6-15(b)(1), the civil penalty money in the fund may be used to restore land affected by surface mining activity after August 3, 1977, if the land is not eligible for Federal funding. Under the new provision at IC 14-34-6-15(b)(2), the civil penalty money in the fund may be used to replace domestic water supplies disrupted or affected by a surface coal mining and reclamation operation, if the operation is completed and is no longer subject to the requirements of the Indiana program under IC 14-34. Indiana revised its exception provision at IC 14-34-6-15(c) to clarify that the $500,000 that is dedicated as collateral for the Indiana bond pool may not be used for replacement of water. The Federal regulation at 30 CFR 845.21(a) authorizes the expenditure of money collected from the assessment of civil penalties under section 518 of SMCRA for reclamation of lands adversely affected by coal mining practices after August 3, 1977. The Federal regulation is silent regarding the use of Federal civil penalty money to replace domestic water supplies. However, section 518(i) of SMCRA does not place conditions on the use of money collected by the States from the assessment of civil penalties. Nor is there a requirement in SMCRA or the Federal regulations that State programs include rules comparable to 30 CFR 845.21. Therefore, we find that Indiana's revised statutory requirements at IC 14-34-6-15(b) and (c) are not inconsistent with the requirements of section 518(i) of SMCRA or the Federal regulations at 30 CFR 845.21. We are approving the proposed revisions to IC 14-34-6-15.

IV. Summary and Disposition of Comments

Federal Agency Comments

On March 2, 2000, under section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Indiana program (Administrative Record No. IND-1688). We did not receive any comments.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the written concurrence of 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 for its concurrence.

On March 2, 2000, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. IND-1688). 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 for amendments that may have an effect on historic properties. On March 2, 2000, we requested comments on Indiana's amendment (Administrative Record No. IND-1688), but neither responded to our request.

Public Comments

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

V. Director's Decision

Based on the above findings, we approve the amendment as sent to us by Indiana on February 25, 2000.

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.

VI. Procedural Determinations

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

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 under SMCRA.

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, 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

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

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 State submittal which is the subject of this rule is 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. 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 counterpart Federal regulations.

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.

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 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 was not considered a major rule.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 914

• Intergovernmental relations
• Surface mining
• Underground mining

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 adding a new entry in chronological order by “Date of final publication” to read as follows: