[Federal Register Volume 69, Number 228 (Monday, November 29, 2004)]
[Rules and Regulations]
[Pages 69280-69287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26196]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[Docket No. IN-141-FOR]


Indiana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving, with an additional requirement, an amendment to 
the Indiana regulatory program (Indiana program) under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Indiana 
proposed revisions to and additions of rules about definitions, 
identification of interests, topsoil, siltation structures, 
impoundments, refuse piles, prime farmland, lands eligible for 
remining, permitting, performance bond release, surface and ground 
water monitoring, roads, inspection, and civil penalties. Indiana 
intends to revise its program to be consistent with the corresponding 
Federal regulations, clarify ambiguities, and improve operational 
efficiency.

DATES: Effective: November 29, 2004.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field 
Division. Telephone: (317) 226-6700. E-mail: <a href="/cdn-cgi/l/email-protection#4009060f0d01090c002f332d32256e272f36"><span class="__cf_email__" data-cfemail="4e070801030f07020e213d233c2b60292138">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 by demonstrating that 
its State 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, 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. Submission of the Amendment

    By letter dated May 19, 2004 (Administrative Record No. IND-1726), 
the Indiana Department of Natural Resources, Division of Reclamation 
(Indiana or IDNR) sent us an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). Indiana sent the amendment in response to a June 
17, 1997, letter (Administrative Record No. IND-1575) that we sent to 
Indiana in accordance with 30 CFR 732.17(c) and in response to the 
required program amendments at 30 CFR 914.16(f), (s), and (hh) through 
(mm). The amendment also included changes made at Indiana's own 
initiative.
    We announced receipt of the proposed amendment in the July 19, 
2004, Federal Register (69 FR 42931). 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. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment

[[Page 69281]]

period ended on August 18, 2004. We received comments from one Federal 
agency.
    During our review of the amendment, we identified concerns about 
inspection of abandoned sites and several editorial-type errors. We 
notified Indiana of these concerns by letter dated July 26, 2004, 
(Administrative Record No. IND-1732).
    By letter dated September 14, 2004 (Administrative Record No. IND-
1733), Indiana responded to our July 26, 2004, letter. Indiana intends 
to make changes to its inspection of abandoned sites rule and to 
correct the editorial-type errors through the errata and program 
amendment processes at a later date. Therefore, we are proceeding with 
this final rule Federal Register document.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment with an additional requirement as described 
below.

A. Minor Revisions to Indiana's Rules

    Indiana proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved rules:
    312 Indiana Administrative Code (IAC) 25-4-17(a)(1), Surface mining 
permit applications--identification of interests; 25-4-115(a)(3), 
Permit approval or denial; 25-4-118(8), Permit conditions; 25-6-
17(b)(2)(J), Surface mining-siltation structures; 25-6-23(a)(2), 
Surface mining-surface and ground water monitoring; and 25-7-1(a)(1) 
and (d)(2), Inspections of sites.
    Because these changes are minor, we find that they will not make 
Indiana's rules less effective than the corresponding Federal 
regulations.

B. Revisions to Indiana's Rules That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    Indiana's rules listed in the table below contain language that is 
the same as or similar to the corresponding sections of the Federal 
regulations.

------------------------------------------------------------------------
                                                     Federal Regulation
            Topic              State Rule 312 IAC          30 CFR
------------------------------------------------------------------------
Definition of lands eligible  25-1-75.5...........  701.5.
 for remining.
Definition of unanticipated   25-1-155.5..........  701.5.
 event or condition.
Prime farmland..............  25-4-102(d)(1), (e),  785.17(c)(1),
                               (f).                  (d)(4), (e).
Performance bond release....  25-5-16(b), (c).....  800.40(a)(3), (b).
Surface mining and            25-6-17(a)(3),        816.46(b)(3),
 underground mining;           (d)(2), (d)(3); 25-   (c)(2);
 hydrologic balance;           6-81(a)(3), (d)(2),   817.46(b)(3),
 siltation structures.         (d)(3).               (c)(2).
Surface mining and            25-6-20(a), (c); 25-  816.49(a), (c);
 underground mining;           6-84(a), (c).         817.49(a), (c).
 hydrologic balance;
 permanent and temporary
 impoundments.
Civil penalties; hearing      25-7-20.............  845.19(a).
 request.
------------------------------------------------------------------------

    Because the above State rules have the same meaning as the 
corresponding Federal regulations, we find that they are no less 
effective than the Federal regulations. We also find that Indiana's 
revisions at 25-6-20(a)(9)(E) and 25-6-84(a)(9)(E) that change the term 
``subsection'' to the term ``clause'' in the phrase ``the following 
impoundments shall be exempt from the examination requirements of this 
subsection'' satisfy the required amendment at 30 CFR 914.16(ii)(3), 
and we are removing it.

C. 312 IAC 25-1-8 Definition of Affected Area

    1. 312 IAC 25-1-8(a)(1) through (7). Indiana designated the 
existing provision as subsection (a) and amended the definition of 
``affected area'' to mean ``any land or water surface area that is used 
to facilitate, or is physically altered by, surface coal mining and 
reclamation operations.'' Subdivisions (a)(1) through (7) specify those 
areas of a permit that will be considered affected areas. At 
subdivisions (a)(2), (4), and (6), Indiana replaced the terms ``an'' 
with the term ``any'' to refer to areas that would be considered 
``affected areas.'' At subdivision (a)(3), Indiana added the word 
``any'' before the word ``adjacent.'' At subdivision (a)(4), Indiana 
added the language ``except as provided in this section'' at the end of 
the subdivision. Indiana restructured subdivision (a)(5) and changed 
the words ``a site'' to ``any area.'' At subdivision (a)(6), Indiana 
made minor wording revisions by adding the word ``property'' between 
the words ``other'' and ``material''; changing the word ``incidental'' 
to ``incident''; and adding the word ``and'' after the word ``mining.'' 
At subdivision (a)(7), Indiana removed the words ``of a mine'' from the 
end of the subdivision.
    We find that the revised language at subsection (a) is 
substantively the same as the counterpart language in the Federal 
definition of ``affected area'' at 30 CFR 701.5. Therefore, we are 
approving 312 IAC 25-1-8(a).
    2. 312 IAC 25-1-8(b) and (c). Indiana added introductory language 
at subsection (b) to identify the roads associated with the permit area 
that are considered affected areas and added subdivisions (b)(1) 
through (4) to identify the criteria for exemption of those roads that 
are not considered affected areas. Roads must meet all of the criteria 
listed in subdivisions (b)(1) through (4) before being considered for 
exemption. Subsection (b) identifies as affected areas those roads used 
for the purposes of access to, or for hauling coal to or from, any 
surface coal mining and reclamation operation unless they meet the 
criteria in subdivisions (b)(1) through (4). Subdivision (b)(1) 
specifies that for a road to be exempt, it must be ``designated as a 
public road pursuant to the laws of the jurisdiction in which it is 
located.'' Subdivision (b)(2) specifies that the road must be 
``maintained with public funds, and constructed in a manner similar to 
other public roads of the same classification within the 
jurisdiction.'' Subdivision (b)(3) provides that the road must have a 
``substantial (more than incidental) public use.'' Finally, subdivision 
(b)(4) specifies that ``the extent and the effect of mining-related 
uses of the road by the permittee must not warrant regulation as part 
of the surface coal mining and reclamation operations.'' Indiana added 
subsection (c) to require the director of the IDNR (director) to 
determine on a case-by-case basis whether a road satisfies the 
requirements of subdivision (b)(4) based on the mining related use of 
the road and consistent with Indiana's definition of ``surface coal 
mining operation.''
    The language at subsection (b) and subdivisions (b)(1), (b)(2), and 
(b)(3) is substantively the same as language found in the counterpart 
Federal definition of ``affected area'' at 30 CFR 701.5. On November 
20, 1986 (51 FR 41952), we suspended the definition of ``affected 
area'' at 30 CFR 701.5 insofar as it might limit jurisdiction over 
roads

[[Page 69282]]

covered by the definition of ``surface coal mining operations.'' Our 
revised road rules were published on November 8, 1988 (53 FR 45192). In 
finalizing those rules, we declined to add a reference to ``affected 
area'' to the definition of road on the basis that the definition of 
``affected area'' as partially suspended no longer provides additional 
guidance as to which roads are included in the definition of surface 
coal mining operations. At the same time, we declined to expressly 
exclude public roads from the definition of road. In the preamble, we 
stated that we are concerned that roads constructed to serve mining 
operations should not avoid compliance with performance standards by 
being deeded to public entities, but it was not our intent to 
automatically extend jurisdiction into the existing public road 
network. Instead, jurisdiction decisions are to be made by the 
regulatory authorities on a case-by-case basis. Indiana intends to 
continue to use the definition of ``affected area'' in determining 
which roads are subject to jurisdiction. The provisions at 312 IAC 25-
1-8(b)(4) and (c) clarify when a public road will be regulated and 
adequately address the concerns we expressed in the November 8, 1988, 
preamble (53 FR 45192) regarding public roads. Therefore, we find that 
Indiana's definition of ``affected area'' is no less effective than the 
Federal regulations concerning jurisdiction over public roads and is 
consistent with the Federal definition of ``affected area.'' Based on 
this finding, we are approving 312 IAC 25-1-8(b) and (c).

D. Recodification Corrections

    Indiana's August 21, 2001, amendment concerned the recodification 
of its rules to comply with formatting guidelines set forth by the 
Indiana Legislative Services Agency (Administrative Record No. IND-
1712). In recodifying some of its rules, Indiana inadvertently removed 
previously-approved language. In its May 19, 2004, amendment, Indiana 
made corrections to the following rules, which were recodified 
(Administrative Record No. IND-1726).
1. 312 IAC 25-4-17 Surface Mining Permit Applications; Identification 
of Interests
    Indiana's rule at 312 IAC 25-4-17 specifies the information that 
must be included in a surface mining permit application for 
identification of interests. In recodifying 312 IAC 25-4-17(d), (e), 
and (f), Indiana inadvertently removed language that required an 
applicant to submit the specified information with an application. 
Therefore, in our approval of Indiana's recodified rule on November 16, 
2001 (66 FR 57655), we required Indiana to submit an amendment or 
otherwise modify its program to clarify that the information specified 
in 312 IAC 25-4-17(d), (e), and (f) must be submitted with the permit 
application. We codified this requirement at 30 CFR 914.16(jj). In its 
May 19, 2004, amendment, Indiana revised 312 IAC 25-4-17 by adding the 
language ``shall be submitted with the application'' to the end of 
subsections (d), (e), and (f).
    With the addition of the language that requires the information 
specified in the subsections to be submitted with the application, we 
find that Indiana's rules at 312 IAC 25-4-17(d), (e), and (f) are no 
less effective than the counterpart Federal regulations at 30 CFR 
778.13(a), (b), and (d), respectively. Therefore, we are approving the 
revisions. We further find that Indiana's revisions satisfy the 
required amendment at 30 CFR 914.16(jj), and we are removing it.
2. 312 IAC 25-4-45 Surface Mining Permit Applications; General 
Requirements for Reclamation Plans
    Indiana's rule at 312 IAC 25-4-45 specifies the information that 
must be included in the reclamation plan for a surface mining permit. 
In recodifying 312 IAC 25-4-45(b)(4), Indiana inadvertently removed 
``total depth'' as one of the factors that the operator is to analyze 
to demonstrate the suitability of topsoil substitutes or supplements. 
We consider ``total depth'' to be one of the factors that must be 
evaluated to demonstrate the suitability of topsoil substitutes or 
supplements. Therefore, in our approval of Indiana's recodified rule on 
November 16, 2001 (66 FR 57655), we required Indiana to submit an 
amendment or otherwise modify its program to require the demonstration 
of the suitability of topsoil substitutes or supplements to also be 
based upon analysis of the ``total depth'' of the different kinds of 
soils. We codified this requirement at 30 CFR 914.16(ll). In its May 
19, 2004, amendment, Indiana restructured 312 IAC 25-4-45(b)(4) and 
added ``total depth'' to the list of factors that must be analyzed to 
demonstrate the suitability of topsoil substitutes or supplements.
    With the addition of ``total depth'' to the list of factors to be 
analyzed for the different kinds of soils proposed for topsoil 
substitutes or supplements, we find that Indiana's rule at 312 IAC 25-
4-45(b)(4) is no less effective than the counterpart Federal regulation 
at 30 CFR 780.18(b)(4). Therefore, we are approving the revision. We 
further find that Indiana's revision satisfies the required amendment 
at 30 CFR 914.16(ll), and we are removing it.
3. 312 IAC 25-4-113 Public Availability of Permit Application 
Information
    Indiana's rule at 312 IAC 25-4-113 provides the exceptions to 
public availability of permit application information. In recodifying 
312 IAC 25-4-113, Indiana inadvertently removed its previously-approved 
provision that allowed a person to oppose or seek disclosure of 
confidential information. Indiana also inadvertently removed its 
previously-approved provision concerning the confidentiality of 
information on the nature and location of archaeological resources on 
public and Indian land. Therefore, in our approval of Indiana's 
recodified rule on November 16, 2001 (66 FR 57655), we required Indiana 
to revise 312 IAC 25-4-113 or otherwise modify the Indiana program to 
allow a person to oppose or seek disclosure of confidential 
information. We also required Indiana to revise 312 IAC 25-4-113 or 
otherwise modify the Indiana program to add a provision that classifies 
information on the nature and location of archeological resources on 
public land and Indian land as qualified confidential information. We 
codified these requirements at 30 CFR 914.16(mm)(1) and (2). In its May 
19, 2004, amendment, Indiana revised 312 IAC 25-4-113 by adding new 
subsection (f) to specify that information on the nature and location 
of archaeological resources on public and Indian land is confidential. 
Indiana also redesignated existing subsection (f) as subsection (g) and 
revised the first sentence to allow a person who opposes or seeks 
disclosure of confidential information to submit a request under 312 
IAC 25-4-110.
    With the addition of new subsection (f) and the revisions to 
subsection (g), we find that Indiana's rules at 312 IAC 25-4-113(f) and 
(g) are no less effective than the counterpart Federal regulations at 
30 CFR 773.6(d)(3) and (d)(3)(iii), and we are approving them. We 
further find that Indiana's revisions satisfy the required amendments 
at 30 CFR 914.16(mm)(1) and (2), and we are removing them.

E. Permit Applications; Reclamation Plan for Siltation Structures, 
Impoundments, Dams, Embankments, and Refuse Piles

    On October 20, 1994 (59 FR 53022), we revised the Federal 
regulations at 30 CFR 780.25 (Surface Mining) and 784.16 (Underground 
Mining) concerning

[[Page 69283]]

reclamation plan requirements for siltation structures, impoundments, 
banks, dams, and embankments. On June 17, 1997, we sent Indiana a 
letter (Administrative Record No. IND-1575) in accordance with 30 CFR 
732.17(c). We notified Indiana that it must amend its rules to be no 
less effective than the revised Federal regulations. Also, in our 
October 29, 1996 (61 FR 55743), approval of Indiana's September 26, 
1994, amendment, as revised on August 16, 1995, we required Indiana to 
amend 310 IAC 12-3-49 (Surface Mining) and 310 IAC 12-3-83 (Underground 
Mining) [currently 312 IAC 25-4-49 and 312 IAC 25-4-87, respectively] 
to add the requirement concerning stability analysis of each structure 
as is required by 30 CFR 780.25(f) and 784.16(f). We codified this 
requirement at 30 CFR 914.16(ii)(1). In response to our June 17, 1997, 
letter and the required amendment at 30 CFR 914.16(ii)(1), Indiana 
proposed the following revisions to its rules.
    1. 312 IAC 25-4-49(a) and 25-4-87(a). Indiana revised the first 
sentence of subsection (a) by requiring an application to include ``a 
general plan and a detailed design plan'' instead of ``a plan'' for 
each proposed structure within the proposed permit area. Indiana also 
added ``refuse pile'' to the list of coal processing waste structures 
for which a general plan and a detailed design plan were needed.
    The counterpart Federal regulations at 30 CFR 780.25(a) and 
784.16(a) also require that a permit application include ``a general 
plan and detailed design plan'' for each proposed structure. Although 
the Federal regulations do not include the term ``coal processing 
refuse pile,'' Indiana's use of the term is equivalent to the Federal 
term ``coal processing waste bank.'' Therefore, we find that 312 IAC 
25-4-49(a) and 25-4-87(a), as revised, are no less effective than the 
counterpart Federal regulations, and we are approving the revisions.
    2. 312 IAC 25-4-49(c) and 25-4-87(c). Indiana revised 312 IAC 25-4-
49(c) by requiring that permanent and temporary impoundments be 
designed to comply with the requirements of 312 IAC 25-6-20 and the 
requirements of the Mine Safety and Health Administration at 30 CFR 
77.216-1 and 30 CFR 77.216-2. Indiana revised 312 IAC 25-4-87(c) by 
requiring that permanent and temporary impoundments be designed to 
comply with the requirements of 312 IAC 25-6-84 and the requirements of 
the Mine Safety and Health Administration at 30 CFR 77.216-1 and 30 CFR 
77.216-2.
    The Federal regulations at 30 CFR 780.25(c) and 784.16(c) contain 
substantively the same requirements. Therefore, we find that 312 IAC 
25-4-49(c) and 25-4-87(c), as revised, are no less effective than the 
counterpart Federal regulations, and we are approving the revisions.
    3. 312 IAC 25-4-49(d) and 25-4-87(d). Indiana added a new 
subsection (d) to 312 IAC 25-4-49 that requires refuse piles to be 
designed to comply with 312 IAC 25-6-36 through 312 IAC 25-6-39. 
Indiana added a new subsection (d) to 312 IAC 25-4-87 that requires 
refuse piles to be designed to comply with 312 IAC 25-6-98 through 312 
IAC 25-6-102. For both rules, Indiana redesignated existing subsection 
(d) as subsection (e).
    The Federal regulations at 30 CFR 780.25(d) and 784.16(d) contain 
substantively the same requirements. Therefore, we find that Indiana's 
new rules at 312 IAC 25-4-49(d) and 25-4-87(d) are no less effective 
than the counterpart Federal regulations, and we are approving them.
    4. 312 IAC 25-4-49(f) and 25-4-87(f). In response to the required 
amendment at 30 CFR 914.16(ii)(1), Indiana added new subsection (f). 
For structures that meet the Class B or C criteria for dams in 
Technical Release 60 (TR-60) or that meet the size and other criteria 
of 30 CFR 77.216(a), each reclamation plan under subsections (b), (c), 
and (e) must include a stability analysis of the structure. The 
stability analysis must include strength parameters, pore pressures, 
and long term seepage conditions. The plan must also include a 
description of each engineering design assumption and calculation.
    We find that Indiana's rules at 312 IAC 25-4-49(f) and 25-4-87(f) 
contain requirements that are substantively the same as the counterpart 
Federal regulation requirements at 30 CFR 780.25(f) and 784.16(f). 
Therefore, we are approving them. We further find that Indiana's rules 
at 312 IAC 25-4-49(f) and 25-4-87(f) satisfy the required amendment at 
30 CFR 914.16(ii)(1), and we are removing it.
    5. 312 IAC 25-4-49(g) and 25-4-87(g). Indiana's rule at subsection 
(g) requires that applications for specified types of proposed 
permanent structures that impound water and meet specified criteria 
must be submitted to the Department of Natural Resources, Division of 
Water for approval before construction of the structure begins. Indiana 
redesignated existing subsection (e) as subsection (g) and added 
introductory language to clarify the types of structures for which 
applications must be submitted. These structures include proposed 
permanent siltation structures, water impoundments, coal processing 
waste dams, or embankments. Indiana also removed the last sentence from 
subdivision (g)(3).
    There are no Federal counterparts to Indiana's rules at 312 IAC 25-
4-49(g) and 25-4-87(g). However, we find that the revisions made to 
these previously-approved rules will not make the Indiana rules less 
effective than the Federal regulations or SMCRA.

F. Lands Eligible for Remining

    On September 11, 1995, Indiana submitted an amendment concerning 
statutory requirements for lands eligible for remining (Administrative 
Record No. IND-1509). After reviewing the amendment, we determined that 
Indiana's amendment did not include all of the necessary requirements 
of section 510(e) of SMCRA and the implementing Federal regulations for 
lands eligible for remining. Therefore, in our approval of Indiana's 
amendment on April 10, 1996 (61 FR 15891), we required Indiana to amend 
its program to provide implementing regulations for the statutory 
requirements. We codified this requirement at 30 CFR 914.16(hh). In 
response to this requirement, Indiana proposed the following revisions 
to its rules.
1. 312 IAC 25-4-105.5 Special Categories of Mining; Lands Eligible for 
Remining
    At 312 IAC 25-4-105.5, Indiana added the permitting requirements 
for lands eligible for remining. An application for a permit must 
contain an identification of potential environmental and safety 
problems related to prior mining activity at the site that could be 
reasonably anticipated to occur. The identification is based on an 
investigation that includes visual observations, record reviews of past 
mining, and environmental sampling tailored to the site conditions. An 
application must also contain descriptions of the mitigative measures 
that will be taken to ensure the applicable reclamation requirements of 
the regulatory program can be met. Indiana also provided that the 
requirements of 312 IAC 25-4-105.5 do not apply after September 30, 
2004.
    Indiana's September 11, 1995, proposed statute at IC 14-34-4-10.5 
did not contain the proviso that the permitting requirements for lands 
eligible for remining will not apply after September 30, 2004. This 
proviso is required by section 510(e) of SMCRA and the implementing 
Federal regulation at 30 CFR 785.25. See 60 FR 58480, November 27, 
1995. In our April 10, 1996, approval of Indiana's statute,

[[Page 69284]]

we required Indiana to amend its program by adding a counterpart to 30 
CFR 785.25 to implement IC 14-34-4-10.5. Indiana added this counterpart 
at 312 IAC 25-4-105.5 for lands eligible for remining. Indiana's 
proposed rule contains requirements that are substantively the same as 
the counterpart Federal regulation, including the proviso that the 
requirements do not apply after September 30, 2004. The effective date 
of our decision in this final rule is after the September 30, 2004, 
expiration date for these requirements. However, Indiana established 
the September 30, 2004, date in its rule to clarify that its statute at 
IC 14-34-4-10.5 and its implementing rule at 312 IAC 25-4-105.5 only 
apply to permits issued before September 30, 2004. Therefore, we find 
that 312 IAC 25-4-105.5 is no less effective than the counterpart 
Federal regulation, and we are approving it.
2. 312 IAC 25-4-114 Review of Permit Applications
    At 312 IAC 25-4-114, Indiana added new subsection (d) to require 
that the prohibitions on the issuance of a permit at subsection (b) 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 violation must have 
occurred after October 24, 1992, and be a result of an unanticipated 
event or condition on a permit. The permit must have been issued before 
September 30, 2004, including subsequent renewals, and held by the 
person making application for a new permit. For a permit issued under 
312 IAC 25-4-105.5, concerning lands eligible for remining, an event or 
condition is presumed to be unanticipated if the event or condition 
arose after permit issuance, was related to prior mining, and was not 
identified in the permit.
    Indiana's rule at 312 IAC 25-4-114(d) contains substantively the 
same requirements as the counterpart Federal regulation at 30 CFR 
773.13 concerning unanticipated events or conditions at remining sites. 
Therefore, we find that 312 IAC 25-4-114(d) is no less effective than 
the counterpart Federal regulation, and we are approving it.
3. 312 IAC 25-4-115 Permit Approval or Denial--Written Findings
    At 312 IAC 25-4-115(a)(13), Indiana added a requirement that the 
director make a written finding for permits to be issued for lands 
eligible for remining. For these permits, the director must find that 
the permit applications contain: (1) Lands eligible for remining; (2) 
an identification of any potential environmental and safety problems 
related to prior mining activity; and (3) mitigation plans to address 
potential environmental and safety problems.
    Indiana's rule at 312 IAC 25-4-115(a)(13) is substantively the same 
as the counterpart Federal regulation at 30 CFR 773.15(m), concerning 
written findings for permits to be issued for lands eligible for 
remining. Therefore, we find that Indiana's rule at 312 IAC 25-4-
115(a)(13) is no less effective than the counterpart Federal 
regulation, and we are approving it.
4. 312 IAC 25-5-7 Period of Liability
    At 312 IAC 25-5-7(b), Indiana added a provision that allows lands 
eligible for remining included in permits issued before September 30, 
2004, or any renewals thereof, to have a liability period of two years. 
To the extent that success standards are established by 312 IAC 25-6-
59(c)(1) or 25-6-120(c)(1), the lands must equal or exceed the 
standards during the growing season of the last year of the 
responsibility period.
    Indiana's new provision at 312 IAC 25-5-7(b) is substantively the 
same as the counterpart Federal regulation at 30 CFR 816.116(c)(2)(ii), 
concerning the period of liability for lands eligible for remining. 
Therefore, we find that the new provision at 312 IAC 25-5-7(b) is no 
less effective than the counterpart Federal regulation, and we are 
approving it.
    5. Based on the above findings, Indiana's revisions at 312 IAC 25-
4-105.5, 25-4-114, 25-4-115, and 25-5-7(b) satisfy the required 
amendment at 30 CFR 914.16(hh), and we are removing it.

G. 312 IAC 25-4-118 Permit Conditions

    On August 21, 2001 (Administrative Record No. IND-1712), Indiana's 
recodified rules included a rule at 312 IAC 25-4-118 that we had not 
previously-approved. This rule specified the conditions under which a 
permit is issued. In our approval of Indiana's rule on November 16, 
2001 (66 FR 57655), we required Indiana to revise 312 IAC 25-4-118(4) 
or otherwise modify its program to require permittees to allow 
authorized representatives of the Secretary of the Interior to have 
right of entry to surface coal mining and reclamation operations for 
purposes of inspections, monitoring, and enforcement and to be 
accompanied by private persons under specified conditions. We codified 
this requirement at 30 CFR 914.16(kk). In its May 19, 2004, amendment, 
Indiana revised 312 IAC 25-4-118(4) by changing the phrase ``authorized 
representatives of the director'' to ``authorized representatives of 
the director and the Secretary of the Interior.'' With this revision, 
the permittee must allow the authorized representatives of the director 
and the Secretary of the Interior, rather than just the director, to 
have the right of entry to a mine site for the purpose of conducting 
inspections and to be accompanied by private persons when the 
inspection is in response to an alleged violation.
    Based on the above discussion, we find that Indiana's rule at 312 
IAC 25-4-118(4) is no less effective than the counterpart Federal 
regulation at 30 CFR 773.17(d), and we are approving it. We further 
find that Indiana's revision satisfies the required amendment at 30 CFR 
914.16(kk), and we are removing it.

H. 312 IAC 25-6-23 Surface Mining; Hydrologic Balance; Surface and 
Ground Water Monitoring

    On March 26, 1992, as clarified on November 5, 1992, February 1, 
1993, and May 19, 1993, Indiana submitted an amendment that included 
revisions to 310 IAC 12-5-27(a) [currently 312 IAC 25-6-23(a)]. In our 
August 16, 1993, approval of the revisions (58 FR 43248), we required 
Indiana to amend 310 IAC 12-5-27(a)(4) [currently 312 IAC 25-6-
23(a)(4)] or otherwise amend the Indiana program to be no less 
effective than 30 CFR 816.41(c)(2), which references and requires 
compliance with 30 CFR 773.17(e). We codified the required amendment at 
30 CFR 914.16(s). In response to this requirement, Indiana proposed to 
add 312 IAC 25-6-23(a)(4)(C) to require that if the analysis of a 
ground water sample indicates noncompliance with a permit condition, 
the permittee must minimize any adverse impact to the environment or 
public health and safety resulting from the noncompliance, including: 
(1) Accelerated or additional monitoring to determine the nature and 
extent of the noncompliance and the results of the noncompliance; (2) 
immediate implementation of measures necessary to mitigate the 
noncompliance; and (3) as soon as practicable issue warning to any 
person whose health and safety is in imminent danger due to the 
noncompliance.
    The counterpart Federal regulation at 30 CFR 816.41(c)(2) 
references the Federal regulation at 30 CFR 773.17(e), rather than 
restating its requirements. However, we find that Indiana's addition of 
the substantive requirements of 30 CFR 773.17(e) at 312 IAC 25-6-

[[Page 69285]]

23(a)(4)(C), rather than referencing its counterpart to 30 CFR 
773.17(e), is no less effective than the counterpart Federal regulation 
at 30 CFR 816.41(c)(2). Therefore, we are approving 312 IAC 25-6-
23(a)(4)(C) and removing the required amendment at 30 CFR 914.16(s).

I. 312 IAC 25-6-25 Hydrologic Balance; Water Rights and Replacement

    In our August 2, 1991 (56 FR 37013), approval of Indiana's 
amendment concerning water rights and replacement, we required Indiana 
to amend 310 IAC 12-5-29 (currently 312 IAC 25-6-25) or otherwise amend 
the Indiana program to clearly require the replacement of water 
supplies that are affected by contamination, diminution, or 
interruption proximately resulting from surface mining activities which 
do not involve a legitimate water use by a person conducting these 
surface mining activities. We codified this requirement at 30 CFR 
914.16(f). In response to this requirement, Indiana revised 312 IAC 25-
6-25 by removing the language ``pursuant to a lawful order of an agency 
or court under IC 14-25-4 or another state water rights law'' from the 
first sentence. Indiana also removed the existing second sentence, 
which stated that water replacement rights are not determined by the 
Indiana program. Indiana added a provision that requires the use of 
baseline hydrologic information to determine the extent of the impact 
of mining on ground water and surface water, as well as other relevant 
information.
    Indiana's proposed revisions make 312 IAC 25-6-25 substantively 
identical to the counterpart Federal regulation at 30 CFR 816.41(h). 
Therefore, we find that 312 IAC 25-6-25 is no less effective than the 
counterpart Federal regulation, and we are approving the revisions. We 
further find that Indiana's revisions satisfy the required amendment at 
30 CFR 914.16(f), and we are removing it.

J. 312 IAC 25-6-66 (Surface Mining) and 312 IAC 25-6-130 (Underground 
Mining); Primary Roads

    1. On September 26, 1994 (Administrative Record No. IND-1401), as 
revised on August 16, 1995 (Administrative Record No. IND-1506), 
Indiana submitted an amendment that included revisions to 310 IAC 12-5-
69.5(2) and 12-5-137.5(2) [currently 312 IAC 25-6-66(2) and 25-6-
130(2)] concerning primary roads. On October 29, 1996, we approved 
Indiana's revisions except to the extent that the provisions allowed 
the use of a maximum slope of 3h:1v without providing engineering 
design standards that ensure compliance with the minimum static safety 
factor of 1.3 (61 FR 55743). We required Indiana to remove the language 
that we did not approve and notify us when the removal was complete or 
propose engineering design standards for a slope of 3h:1v that ensures 
compliance with the 1.3 minimum static safety factor requirements. In 
response to this requirement, Indiana revised 312 IAC 25-6-66 and 25-6-
130 by removing the language that allowed the use of a maximum slope of 
3h:1v. We find that with the removal of this language, 312 IAC 25-6-
66(2) and 25-6-130(2) are no less effective than the counterpart 
Federal regulations at 30 CFR 816.151(b) and 817.151(b) for primary 
roads, and we are approving them.
    2. In its May 19, 2004, amendment, Indiana also proposed 
engineering design standards at 312 IAC 25-6-130(2)(A) through (H) for 
underground mining primary roads. The design standards allow the use of 
a maximum slope of 2h:1v as an alternative to the 1.3 static safety 
factor requirement for primary road embankments.
    The Federal regulations at 30 CFR 780.37(c) and 784.24(c) allow 
regulatory authorities to establish engineering design standards for 
primary roads in lieu of engineering tests to establish compliance with 
the minimum static safety factor of 1.3 for primary road embankments. 
In its September 26, 1994, amendment, Indiana had proposed 
substantively identical design standards for surface mining primary 
roads. We conducted a technical review of Indiana's surface mining 
design standards, found them to be acceptable, and approved them on 
October 29, 1996. Therefore, we find that Indiana's proposed design 
standards for underground mining primary roads meet the requirement at 
30 CFR 784.24(c), and we are approving them.

K. 312 IAC 25-7-1 Inspections of Sites

    On November 28, 1994 (59 FR 60876), we revised the Federal 
regulations at 30 CFR 840.11 concerning inspection procedures. On June 
17, 1997, we sent Indiana a letter (Administrative Record No. IND-1575) 
in accordance with 30 CFR 732.17(c). We notified Indiana that it must 
amend its rules to be no less effective than the revised Federal 
regulations. In response to this requirement, Indiana proposed 
revisions to its rule at 312 IAC 25-7-1. Indiana removed existing 
subdivision (a)(2) and redesignated existing subdivisions (a)(3) and 
(4) as subdivisions (a)(2) and (3). Indiana also redesignated existing 
subsection (f) as subsection (h) and added new subsections (f) and (g).
    1. New subsection (f) provides that in lieu of the inspection 
frequency established in subsection (a), the regulatory authority must 
inspect each abandoned site on a set frequency commensurate with the 
public health and safety and environmental considerations present at 
each specific site, but in no case will the inspection frequency be set 
at less than one complete inspection per calendar year. Subdivisions 
(f)(1) through (3) provide the procedures that the regulatory authority 
must follow to establish an alternative inspection frequency for 
abandoned sites.
    The requirements of Indiana's new rule at 312 IAC 25-7-1(f) are 
substantively identical to the counterpart Federal regulation at 30 CFR 
840.11(h)(1). Therefore, we find that 312 IAC 25-7-1(f) is no less 
effective than the counterpart Federal regulation, and we are approving 
it.
    2. New subdivision (g)(1) provides the procedures for publishing a 
public notice and offering the public an opportunity to comment on the 
alternative inspection frequency for an abandoned site. New subdivision 
(g)(2) provides information on the content of a public notice.
    The requirements of Indiana's new rule at 312 IAC 25-7-1(g) are 
substantively identical to the counterpart Federal regulation at 30 CFR 
840.11(h)(2). Therefore, we find that 312 IAC 25-7-1(g) is no less 
effective than the counterpart Federal regulation, and we are approving 
it.
    3. In our June 17, 1997, letter, we notified Indiana that we had 
revised 30 CFR 840.11(g)(4) to allow a site to be classified as 
abandoned only in cases where a permit has either expired or been 
revoked. Previously, 30 CFR 840.11(g)(4) allowed a site to be 
classified as abandoned on the basis that the permit has expired or 
been revoked or permit revocation proceedings have been initiated and 
are being pursued diligently. Indiana did not revise its rule at 312 
IAC 25-7-1 to reflect this new requirement of the revised Federal 
regulation. Therefore, we are requiring Indiana to revise 312 IAC 25-7-
1(h)(2)(D)(i) to allow a site to be classified as abandoned only in 
cases where a permit has expired or been revoked. We are codifying this 
requirement at 30 CFR 914.16.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, but did not receive 
any.

[[Page 69286]]

Federal Agency Comments

    On June 10, 2004, under 30 CFR 732.17(h)(11)(i) and section 503(b) 
of SMCRA, we requested comments on the amendment from various Federal 
agencies with an actual or potential interest in the Indiana program 
(Administrative Record No. IND-1729).
    The U.S. Fish and Wildlife Service (FWS) responded on July 12, 2004 
(Administrative Record No. IND-1731), that the amendment contains some 
items of interest to the FWS related to language concerning prime 
farmland soils. FWS commented that for conservation of wildlife 
resources, it is important that pre-mining forest on prime farmland 
soils can continue to be restored as forest. FWS then stated that it 
understood from discussions with the IDNR staff that the proposed 
changes will not adversely affect forest restoration; therefore, it had 
no specific comments on the amendment.
    We agree that the proposed changes to Indiana's prime farmland rule 
will not adversely affect forest restoration.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from 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 EPA to concur on the amendment.
    On June 10, 2004, under 30 CFR 732.17(h)(11)(i), we requested 
comments on the amendment from EPA (Administrative Record No. IND-
1729). 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 June 10, 2004, we requested comments on Indiana's 
amendment (Administrative Record No. IND-1729), but neither responded 
to our request.

V. OSM's Decision

    Based on the above findings, we approve with an additional 
requirement the amendment Indiana sent us on May 19, 2004. As discussed 
in Finding III.K.3, we are requiring Indiana to revise its rule at 312 
IAC 25-7-1(h)(2)(D)(i) to allow a site to be classified as abandoned 
only in cases where a permit has expired or been revoked.
    We approve the rules proposed by Indiana with the provision that 
they be fully promulgated 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 find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. 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 the provisions are administrative and procedural in nature 
and are not expected to have a substantive effect on the regulated 
industry.

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 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.

[[Page 69287]]

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 regulations did not impose an 
unfunded mandate. 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.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 14, 2004.
Charles E. Sandberg,
Regional Director, Mid-Continent Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 914 is amended as 
set forth below:

PART 914--INDIANA

0
1. The authority citation for part 914 continues to read as follows:

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

0
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:


Sec.  914.15  Approval of Indiana regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
May 19, 2004..................  November 29, 2004  312 IAC 25-1-8; 25-1-
                                                    75.5; 25-1-155.5; 25-
                                                    4-17(a)(1), (d),
                                                    (e), and (f); 25-4-
                                                    45(b)(4); 25-4-
                                                    49(a), (c), (d),
                                                    (f), and (g); 25-4-
                                                    87(a), (c), (d),
                                                    (f), and (g); 25-4-
                                                    102(d)(1), (e), and
                                                    (f); 25-4-105.5; 25-
                                                    4-113(f) and (g); 25-
                                                    4-114(d); 25-4-
                                                    115(a)(3) and (13);
                                                    25-4-118(4) and (8);
                                                    25-5-7(b); 25-5-
                                                    16(b) and (c); 25-6-
                                                    17(a)(3), (b)(2),
                                                    (d)(2), and (d)(3);
                                                    25-6-20(a) and (c);
                                                    25-6-23(a)(2) and
                                                    (4)(C); 25-6-25; 25-
                                                    6-66(2); 25-6-
                                                    81(a)(3), (d)(2) and
                                                    (3); 25-6-84(a) and
                                                    (c); 25-6-130(2); 25-
                                                    7-1(a), (d)(2), (f),
                                                    and (g); 25-7-20.
------------------------------------------------------------------------


0
3. Section 914.16 is amended by removing and reserving paragraphs (f), 
(s), (hh), (ii), (jj), (kk), (ll), and (mm) and by adding paragraph 
(ff) to read as follows:


Sec.  914.16  Required program amendments.

* * * * *
    (ff) By February 28, 2005. Indiana must submit either an amendment 
or a description of an amendment to be proposed, together with a 
timetable for adoption of proposed revisions to 312 IAC 25-7-
1(h)(2)(D)(i) to allow a site to be classified as abandoned only in 
cases where a permit has expired or been revoked.


Sec.  914.25  [Amended]

0
4. Section 914.25 is amended by:
0
a. Removing the designation ``(a)'' from paragraph (a); and
0
b. Removing paragraph (b).

[FR Doc. 04-26196 Filed 11-26-04; 8:45 am]
BILLING CODE 4310-05-P


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