Indiana Regulatory Program, 5374-5377 [E7-1863]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 72, Number 24 (Tuesday, February 6, 2007)]
[Proposed Rules]
[Pages 5374-5377]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-1863]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[Docket No. IN-156-FOR]


Indiana Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of a proposed amendment to the Indiana 
regulatory program (Indiana program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). The Indiana Department 
of Natural Resources, Division of Reclamation (IDNR, department, or 
Indiana) proposes revisions to its rules concerning the definition of 
``government-financed construction''; underground mining reclamation 
plans for siltation structures, impoundments, dams, embankments, and 
refuse piles; performance bond release; surface mining permanent and 
temporary impoundments; surface mining primary roads; and inspections 
of sites. Indiana intends to revise its program to be consistent with 
the corresponding Federal regulations, to clarify ambiguities, and to 
improve operational efficiency.
    This document gives the times and locations that the Indiana 
program and proposed amendments to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
e.t., March 8, 2007. If requested, we will hold a public hearing on the 
amendment on March 5, 2007. We will accept requests to speak at a 
hearing until 4 p.m., e.t. on February 21, 2007.

ADDRESSES: You may submit comments, identified by Docket No. IN-156-
FOR, by any of the following methods:
     E-mail: IFOMAIL@osmre.gov. Include Docket No. IN-156-FOR 
in the subject line of the message.
     Mail/Hand Delivery: Andrew R. Gilmore, Chief, Alton Field 
Division--Indianapolis Area Office, Office of Surface Mining 
Reclamation and Enforcement, Minton-Capehart Federal Building, 575 
North Pennsylvania Street, Room 301, Indianapolis, Indiana 46204.
     Fax: (317) 226-6182.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the Indiana 
program, this amendment, a listing of any scheduled public hearings, 
and all written comments received in response to this document, you 
must go to the address listed below during normal business hours, 
Monday through Friday, excluding holidays. You may receive one free 
copy of the amendment by contacting OSM's Indianapolis Area Office: 
Andrew R. Gilmore, Chief, Alton Field Division--Indianapolis Area 
Office, Office of Surface Mining Reclamation and Enforcement, Minton-
Capehart Federal Building, 575 North Pennsylvania Street, Room 301, 
Indianapolis, Indiana 46204, Telephone: (317) 226-6700, E-mail: 
IFOMAIL@osmre.gov.
    In addition, you may review a copy of the amendment during regular 
business hours at the following location: Indiana Department of Natural 
Resources, Division of Reclamation, R.R. 2, Box 129, Jasonville, 
Indiana 47438-9517, Telephone: (812) 665-2207.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field 
Division--Indianapolis Area Office. Telephone: (317) 226-6700. E-mail: 
IFOMAIL@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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

[[Page 5375]]

by demonstrating that its 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 of the Indiana program 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. Description of the Proposed Amendment

    By letter dated December 11, 2006 (Administrative Record No. IND-
1741), Indiana sent us an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). Indiana sent the amendment in response to a 
required program amendment at 30 CFR 914.16(ff) and to include changes 
made at its own initiative. Below is a summary of the changes proposed 
by Indiana. The full text of the program amendment is available for you 
to read at the locations listed above under ADDRESSES.

A. 312 IAC 25-1-57 ``Government-Financed Construction'' Defined

    Indiana proposes to revise its definition of ``government-financed 
construction'' to read as follows:

    ``Government-financed construction'' means construction funded 
at fifty percent (50%) or more by funds appropriated from a 
government financing agency's budget or obtained from general 
revenue bonds. Government financing at less than fifty percent (50%) 
may qualify if the construction is undertaken as an approved 
reclamation project under Title IV of the Federal Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1201 through 30 
U.S.C. 1328) and IC 14-34-19. Construction funded through:
    (1) A government financing agency guarantee;
    (2) Insurance;
    (3) A loan;
    (4) Funds obtained through industrial revenue bonds or their 
equivalent; or
    (5) An in-kind payment;
does not qualify as government-financed construction.

B. 312 IAC 25-4-87 Underground Mining Permit Applications; Reclamation 
Plan for Siltation Structures, Impoundments, Dams, Embankments, and 
Refuse Piles

    1. Indiana proposes to restructure and/or make minor wording 
changes to subsections (a)(1)(B); (a)(2)(A) and (C); (c); (e)(1) and 
(e)(4); and (f)(1).
    2. At subsection (g)(3), Indiana proposes to remove the following 
sentence:

    If necessary to protect the health or safety of persons or 
property or the environment, even though the volume of water 
impounded is less than one hundred (100) acre feet, the director may 
require an application to be made.

C. 312 IAC 25-5-16 Performance Bond Release; Requirements

    1. At subsection (a)(7), Indiana proposes to revise this subsection 
to remove the provision that allows persons to request an informal 
conference.
    2. Indiana proposes to recodify existing subsections (b) through 
(f) as subsections (c) through (g), and existing subsection (h) as 
subsection (i). Indiana also proposes to remove the language in 
existing subsections (g) and (i), which pertains to filing written 
objections to proposed bond releases and requesting and holding a 
public hearing. A portion of the provisions in existing subsection (g) 
is currently found in subsection (a) and portions of the provisions in 
existing subsections (g) and (i) are found in newly added subsection 
(j).
    3. Indiana proposes to add new subsection (b) to allow the director 
of IDNR to initiate an application for the release of bond. If a bond 
release application is initiated by the director of IDNR, the 
department will have to perform the notification and certification 
requirements otherwise imposed on the permittee.
    4. At new subsection (d)(4) [existing subsection (c)(4)], Indiana 
proposes to change the last sentence to read as follows:

    The department shall notify, in writing, the permittee and any 
other interested person of a decision whether to release all or part 
of the performance bond or deposit within sixty (60) days after 
receipt of the request if no public hearing or informal conference 
is held under subsection (i) or (j) or if an informal conference is 
held under subsection (i) or public hearing is held under subsection 
(j) within thirty (30) days after the informal conference or public 
hearing is completed.

    5. Indiana proposes to add new subsection (h) to read as follows:

    (h) A determination by the director under the provisions of this 
article or IC 14-34 is subject to review. An affected person may 
obtain administrative review under IC 4-21.5 and 312 IAC 3-1. The 
division of hearings of the commission shall, as soon as 
practicable, conduct any appropriate proceeding.

    6. Indiana proposes to revise new subsection (i) [existing 
subsection (h)] to read as follows:

    (i) Upon receipt of written objection or a request for public 
hearing under subsection (a), the department, at the discretion of 
the director, may set a dispute under this section for an informal 
conference to resolve the objection. Conduct of an informal 
conference does not alter or prejudice the rights and 
responsibilities under this section of any of the following:
    (1) A permittee.
    (2) A person who files objections.
    (3) The department.
    (4) Another interested person.

    8. Indiana proposes to add new subsection (j) to read as follows:

    (j) If objections filed under subsection (a) are not resolved 
through an informal conference, the department shall hold a public 
hearing within a reasonable time following the receipt of the 
request. The public hearing shall be conducted as follows:
    (1) The date, time, and location of the public hearing shall be 
sent to the permittee and other parties to the hearing and 
advertised by the department in a newspaper of general circulation 
in the county where the surface coal mining and reclamation 
operation proposed for bond release is located one (1) time each 
week for two (2) consecutive weeks.
    (2) The requirements of IC 4-21.5-3 shall not apply to the 
conduct of the public hearing. The public hearing shall be conducted 
by a representative of the director, who may accept oral or written 
statements and any other relevant information from any party to the 
public hearing. An electronic or stenographic record shall be made 
unless waived by all parties. The record shall be maintained and 
shall be accessible to the parties of the public hearing until final 
release of the applicant's performance bond or other equivalent 
guarantee under this article.
    (3) The department shall furnish all parties of the public 
hearing with the following:
    (A) The written findings of the director based on the public 
hearing.
    (B) The reasons for the finding.
    (4) If all parties requesting the public hearing withdraw their 
request before the conference is held, the public hearing may be 
canceled.

D. 312 IAC 25-6-20 Surface Mining; Hydrologic Balance; Permanent and 
Temporary Impoundments

    1. Indiana proposes to restructure and/or make minor wording 
changes to subsections (a)(1); (a)(3)(A), (B), and (C); (a)(5); (a)(6); 
(a)(7)(B)(iii); (a)(9)(A) and (D); (b)(3); (b)(8)(B); (c)(1) and (2); 
(d); and (e).
    2. Indiana proposes to remove the language ``and located where 
failure would not be expected to cause loss of

[[Page 5376]]

life or serious property damage'' from subsection (a)(3)(B). By 
removing this language, all impoundments not meeting the Class B or C 
criteria for dams in the Natural Resource Conservation Service (NRCS) 
publication Technical Release No. 60 (TR 60) or size or other criteria 
of 30 CFR 77.216(a) [except for coal mine waste impounding structures] 
must have a minimum static safety factor of 1.3 for a normal pool with 
steady state seepage saturation conditions.
    3. Indiana also proposes to redesignate subsection (a)(9)(E)(ii) as 
new subsection (a)(9)(E)(iii), and to add the following new language at 
subsection (a)(9)(E)(ii):

    (ii) Impoundments that are entirely contained within an incised 
structure such that the incised structure would completely contain 
the waters of the impoundment should failure occur and failure would 
not create a potential threat to public health and safety or 
threaten significant environmental harm.

E. 312 IAC 25-6-66 Surface Mining; Primary Roads

    1. At subdivision (2), Indiana proposes to revise the introductory 
paragraph to read as follows:

    (2) Each primary road embankment shall have a minimum static 
safety factor of one and three-tenths (1.3) or be designed in 
compliance with the following design standards:

    2. Indiana proposes to restructure and/or make minor wording 
changes to subdivisions (2)(A), (C), and (H); and (4)(B)(i).

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

    1. Indiana proposes to restructure and/or make minor wording 
changes to subsections (f)(3)(E) and (F); (g)(2); (h)(1)(D)(ii); and 
(h)(3)(A).
    2. At subsection (h)(1)(D)(i), Indiana proposes to remove the 
language ``or permit revocation proceedings have been initiated and are 
being pursued diligently.'' By removing this language, the definition 
of ``abandoned site'' (if the site has previously been permitted or 
bonded) no longer includes a site where permit revocation proceedings 
have been initiated and are being pursued diligently.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will not consider or respond to 
your comments when developing the final rule if they are received after 
the close of the comment period (see DATES). We will make every attempt 
to log all comments into the administrative record, but comments 
delivered to an address other than the Indianapolis Area Office may not 
be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: Docket No. IN-156-FOR'' and your name and return 
address in your Internet message. If you do not receive a confirmation 
that we have received your Internet message, contact the Indianapolis 
Area Office at (317) 226-6700.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.t. on 
February 21, 2007. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. 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 this rulemaking has no takings implications.

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

[[Page 5377]]

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.

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 regulation did not impose an 
unfunded mandate. For the portion of the State provisions that are 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: December 22, 2006.
Charles E. Sandberg,
Regional Director, Mid-Continent Region.
[FR Doc. E7-1863 Filed 2-5-07; 8:45 am]
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