[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Proposed Rules]
[Pages 42931-42937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16289]
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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: 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). Indiana proposes
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.
This document gives the times and locations that the Indiana
program and proposed amendment 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.s.t., August 18, 2004. If requested, we will hold a public hearing on
the amendment on August 13, 2004. We will accept requests to speak at a
hearing until 4 p.m., e.s.t. on August 3, 2004.
ADDRESSES: You may submit comments, identified by Docket No. IN-141-
FOR, by any of the following methods:
E-mail: [email protected]. Include Docket No. IN-141-FOR
in the subject line of the message.
Mail/Hand Delivery: Andrew R. Gilmore, Director,
Indianapolis Field 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: http://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 Field Office.
Andrew R. Gilmore, Director, Indianapolis Field 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: [email protected].
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, Director,
Indianapolis Field Office. Telephone: (317) 226-6700. E-mail:
[email protected].
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 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 May 19, 2004 (Administrative Record No. IND-1726),
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 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 includes changes made at Indiana's 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.
[[Page 42932]]
A. 312 IAC (Indiana Administrative Code) 25-1 Definitions
Indiana revised its definition of ``affected area'' and added
definitions for ``lands eligible for remining'' and ``unanticipated
event or condition'' as discussed below.
1. At 312 IAC 25-1-8, Indiana revised its definition of ``affected
area'' to read as follows:
(a) ``Affected area'' means any land or water surface area that
is used to facilitate, or is physically altered by, surface coal
mining and reclamation operations. The term includes any of the
following:
(1) The disturbed area.
(2) Any area upon which surface coal mining and reclamation
operations are conducted.
(3) Any adjacent land the use of which is incidental to surface
coal mining and reclamation operations.
(4) Any area covered by new or existing roads used to gain
access to, or for hauling coal to or from, surface coal mining and
reclamation operations, except as provided in this section.
(5) Any area covered by:
(A) Surface excavations;
(B) Workings;
(C) Impoundments;
(D) Dams;
(E) Ventilation shafts;
(F) Entryways;
(G) Refuse banks;
(H) Dumps;
(I) Stockpiles;
(J) Overburden piles;
(K) Spoil banks;
(L) Culm banks;
(M) Tailings;
(N) Holes or depressions;
(O) Repair areas;
(P) Storage areas; or
(Q) Shipping areas.
(6) Any area upon which are sited structures, facilities, or
other property material on the surface resulting from, or incident
to, surface coal mining and reclamation operations.
(7) The area located above underground workings.
(b) The term includes every road used for purposes of access to,
or for hauling coal to or from, any surface coal mining and
reclamation operation unless:
(1) the road is designated as a public road pursuant to the laws
of the jurisdiction in which it is located;
(2) the road is maintained with public funds and constructed in
a manner similar to other public roads of the same classification
within the jurisdiction;
(3) there is substantial (more than incidental) public use; and
(4) the extent and the effect of mining-related uses of the road
by the permittee do not warrant regulation as part of the surface
coal mining and reclamation operations.
(c) The director shall determine, on a case-by-case basis,
whether a particular road satisfies the requirements of subsection
(b)(4) based upon the mining-related use of the road and consistent
with the definition of surface coal mining operation found in
section 145 of this rule.
2. At 312 IAC 25-1-75.5, Indiana added a definition for ``lands
eligible for remining'' to read as follows:
``Lands eligible for remining'' means, for the purposes of 312
IAC 25-4-105.5, 312 IAC 25-4-114, 312 IAC 25-4-115, and 312 IAC 25-
5-7, those lands eligible for funding under IC [Indiana Code] 14-34-
19 or 30 U.S.C. 1232(g)(4).
3. At 312 IAC 25-1-155.5, Indiana added a definition for
``unanticipated event or condition'' to read as follows:
``Unanticipated event or condition'' means, for the purposes of
312 IAC 25-4-114, an event or condition that is encountered in a
remining operation and was not contemplated by the applicable
surface mining and reclamation permit.
B. 312 IAC 25-4-17 Surface Mining Permit Applications; Identification
of Interests
Indiana added the language ``shall be submitted with the
application'' at the end of subsections (d), (e), and (f).
C. 312 IAC 25-4-45 Surface Mining Permit Applications; Reclamation and
Operations Plan; Reclamation Plan; General Requirements
Indiana revised subdivision (b)(4) to require a demonstration of
the suitability of topsoil substitutes or supplements under 312 IAC 25-
6-11(c) to include an analysis of the total depth of the soil.
D. 312 IAC 25-4-49 Surface Mining Permit Applications; Reclamation and
Operations Plan; Reclamation Plan for Siltation Structures,
Impoundments, Dams, and Embankments, and Refuse Piles
1. Indiana revised the first sentence of subsection (a) to read as
follows:
(a) Each application shall include a general plan and a detailed
design plan for each proposed siltation structure, water
impoundment, and coal processing waste dam, embankment, or refuse
pile within the proposed permit area.
2. Indiana revised subsection (c) by requiring permanent and
temporary impoundments to be designed to comply with both 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.
3. Indiana added a new subsection (d) to require refuse piles be
designed to comply with 312 IAC 25-6-36 through 312 IAC 25-6-39.
Indiana redesignated existing subsection (d) as subsection (e).
4. Indiana added new subsection (f) to read as follows:
(f) If the structure meets the Class B or C criteria for dams in
TR-60 [Technical Release 60] or meets the size and other criteria of
30 CFR 77.216(a), each plan under subsections (b), (c), and (e)
shall include the following:
(1) A stability analysis of the structure that shall include,
but not be limited to:
(A) Strength parameters.
(B) Pore pressures.
(C) Long term seepage conditions.
(2) A description of each engineering design assumption and
calculation with a discussion of each alternative considered in
selecting the specific design parameters and construction methods.
5. Indiana redesignated existing subsection (e) as subsection (g)
and added introductory language to read as follows: ``If the proposed
siltation structure, water impoundment, coal processing waste dam, or
embankment is permanent and the: * * *'' Indiana also removed the word
``the'' from the beginning of subdivisions (g)(1) through (3) and
removed the last sentence from subdivision (g)(3).
E. 312 IAC 25-4-87 Underground Mining Permit Applications; Reclamation
Plan for Siltation Structures, Impoundments, Dams, and Embankments, and
Refuse Piles
1. Indiana revised the first sentence of subsection (a) to read as
follows:
(a) Each application shall include a general plan and a detailed
design plan for each proposed siltation structure, water
impoundment, and coal processing waste dam, embankment, or refuse
pile within the proposed permit area.
2. Indiana revised subsection (c) by requiring permanent and
temporary impoundments to be designed to comply with the requirements
of 312 IAC 25-6-84, 30 CFR 77.216-1, and 30 CFR 77.216-2.
3. Indiana added a new subsection (d) to require refuse piles to be
designed to comply with 312 IAC 25-6-98 through 312 IAC 25-6-102.
Indiana redesignated existing subsection (d) as subsection (e).
4. Indiana added new subsection (f) to read as follows:
(f) If the structure meets the Class B or C criteria for dams in
TR-60 or meets the size and other criteria of 30 CFR 77.216(a), each
plan under subsections (b), (c), and (e) shall include the
following:
(1) A stability analysis of the structure that shall include,
but not be limited to:
(A) Strength parameters.
(B) Pore pressures.
(C) Long term seepage conditions.
(2) A description of each engineering design assumption and
calculation with a discussion of each alternative considered in
selecting the specific design parameters and construction methods.
5. Indiana redesignated existing subsection (e) as subsection (g)
and
[[Page 42933]]
added introductory language to read as follows: ``If the proposed
siltation structure, water impoundment, coal processing waste dam, or
embankment is permanent and the: * * *'' Indiana also removed the word
``the'' from the beginning of subdivisions (g)(1) through (3).
F. 312 IAC 25-4-102 Special Categories of Mining; Prime Farmland
1. In subdivision (d)(1), Indiana changed its references to the
United States Soil Conservation Service to the United States Natural
Resources Conservation Service (NRCS).
2. Indiana added the following new subsections (e) and (f):
(e) Before any permit is issued for areas that include prime
farmland, the director shall consult with the state conservationist
of the Natural Resources Conservation Service. The state
conservationist shall do the following:
(1) Provide for the review of and comment on the proposed method
of soil reconstruction in the plan submitted under subsection (d).
(2) Suggest revisions resulting in more complete and adequate
reconstruction if the state conservationist considers the soil
reconstruction methods to be inadequate. The state conservationist
has fifteen (15) days after consultation with the director to
respond.
(3) Provide to the director a list of prime farmland soils,
their location, physical and chemical characteristics, crop yields,
and associated data necessary to support adequate prime farmland
descriptions.
(4) Assist the director in determining the adequacy of all soil
surveys required in subsection (d)(1) through (d)(3).
(f) A permit for the mining and reclamation of prime farmland
may be granted by the director if the director finds, in writing,
upon the basis of a complete application, the following:
(1) The approved proposed postmining land use of prime farmland
will be cropland.
(2) The permit incorporates as specific conditions the contents
of the plan submitted under subsection (d), after consideration of
any revisions to that plan suggested by the state conservationist
under subsection (e).
(3) The applicant has the technological capability to restore
the prime farmland, within a reasonable time, to equivalent or
higher levels of yield as nonmined prime farmland in the surrounding
area under equivalent levels of management.
(4) The proposed operations will be conducted in compliance with
the requirements of 312 IAC 25-6-139 through 312 IAC 25-6-143 and
other environmental protection performance and reclamation standards
for mining and reclamation of prime farmland of the regulatory
program.
(5) The aggregate total prime farmland acreage shall not be
decreased from that which existed prior to mining. Waterbodies, if
any, to be constructed during mining and reclamation must be located
within the postreclamation nonprime farmland portions of the permit
area. The creation of any waterbody must be approved by the
director, and the consent of all affected property owners within the
permit area shall be obtained.
G. 312 IAC 25-4-105.5 Special Categories of Mining; Lands Eligible for
Remining
At 312 IAC 25-4-105.5, Indiana added the following permitting
requirements for lands eligible for remining:
(a) This section contains permitting requirements to implement
section 114(d) of this rule. Any person who submits a permit
application to conduct surface coal mining operation on lands
eligible for remining must comply with this section.
(b) Any application for a permit under this section shall be
made according to all requirements of this rule applicable to
surface coal mining and reclamation operations. The application
shall contain the following:
(1) To the extent not otherwise addressed in the permit
application, an identification of potential environmental and safety
problems related to prior mining activity at the site that could be
reasonably anticipated to occur. This identification shall be based
on a due diligence investigation that shall include the following:
(A) Visual observation at the site.
(B) A record review of past mining at the site.
(C) Environmental sampling tailored to current site conditions.
(2) With regard to potential environmental and safety problems
referred to in subdivision (1), a description of the mitigative
measures that will be taken to ensure that the applicable
reclamation requirements of the regulatory program can be met.
(c) The requirements of this section shall not apply after
September 30, 2004.
H. 312 IAC 25-4-113 Review, Public Participation, and Approval or
Disapproval of Permit Applications; Permit Terms and Conditions; Public
Availability
1. Indiana added new subsection (f) to require information on the
nature and location of archaeological resources on public and Indian
land, required under 16 U.S.C. 470aa through 16 U.S.C. 47mm, to be held
confidential.
2. Indiana redesigned 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
section 25-4-110.
I. 312 IAC 25-4-114 Review, Public Participation, and Approval or
Disapproval of Permit Applications; Permit Terms and Conditions; Review
of Permit Applications
Indiana added new subsection (d) to read as follows:
(d) After October 24, 1992, the following apply:
(1) The prohibitions of subsection (b) regarding the issuance of
a new permit shall not apply to any violation that:
(A) Occurs after October 24, 1992;
(B) Is unabated; and
(C) Results from an unanticipated event or condition that arises
from a surface coal mining and reclamation operation on lands that
are eligible for remining under a permit:
(i) Issued before September 30, 2004, or any renewals thereof;
and
(ii) Held by the person making application for the new permit.
(2) A permit issued under section 105.5 of this rule, an event
or condition shall be presumed to be unanticipated for the purposes
of this subsection if the event or condition:
(A) Arose after permit issuance;
(B) Was related to prior mining; and
(C) Was not identified in the permit.
J. 312 IAC 25-4-115 Review, Public Participation, and Approval or
Disapproval of Permit Applications; Permit Terms and Conditions; Permit
Approval or Denial
Indiana added the following requirements for lands eligible for
remining at new subdivision (a)(13):
(13) For permits to be issued under section 105.5 of this rule,
the permit application must contain the following:
(A) Lands eligible for remining.
(B) An identification of any potential environmental and safety
problems related to prior mining activity that could reasonably be
anticipated to occur at the site.
(C) Mitigation plans to sufficiently address potential
environmental and safety problems so that reclamation as required by
the applicable requirements of the regulatory program can be
accomplished.
K. 312 IAC 25-4-118 Review, Public Participation, and Approval or
Disapproval of Permit Applications; Permit Terms and Conditions; Permit
Conditions
Indiana revised subdivision (4) to require the permittee to allow
the authorized representatives of the Secretary of the Interior to also
have the right of entry to a mine site for the purpose of conducting
inspections.
L. 312 IAC 25-5-7 Period of Liability
Indiana added the following new requirements for lands eligible for
remining at the end of subsection (b):
On lands eligible for remining included in permits issued before
September 30, 2004, or any renewals thereof, the liability period is
two (2) years. To the extent that success standards are established
by 312 IAC 25-6-59(c)(1) or 312 IAC 25-6-120(c)(1), the lands shall
equal or exceed the standards during the growing season of the last
year of the responsibility period.
[[Page 42934]]
M. 312 IAC 25-5-16 Performance Bond Release; Requirements
1. Indiana added the following new subsection (b):
(b) The permittee shall include in the application for bond
release a notarized statement that certifies that all applicable
reclamation activities have been accomplished in accordance with the
requirements of this article and the approved reclamation plan. The
certification shall be submitted for each application or phase of
bond release.
2. Indiana redesignated existing subsections (b) through (h) as
subsections (c) through (i).
N. 312 IAC 25-6-17 Surface Mining; Hydrologic Balance; Siltation
Structures and 312 IAC 25-6-81 Underground Mining; Hydrologic Balance;
Siltation Structures
Because the Underground Mining rule is structured the same as the
Surface Mining rule, the revisions discussed below pertain to both 312
IAC 25-6-17 and 312 IAC 25-6-81.
1. Indiana revised subdivision (a)(3) by removing the language that
allowed a qualified registered professional land surveyor for the
surface mining rule or qualified professional land surveyor for the
underground mining rule to certify a siltation structure.
2. Indiana changed the term ``sedimentation pond'' to ``siltation
structure'' throughout subsection (d).
3. Indiana added the following requirement at new clause (d)(2)(B):
(B) For a siltation structure meeting the Class B or C criteria
for dams in TR-60, the emergency spillway hydrograph criteria in the
``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60,
or greater event as specified by the director.
4. Indiana redesignated existing clause (d)(2)(B) as clause (C) and
revised it to read as follows:
(C) For a siltation structure not meeting the size or other
criteria of 30 CFR 77.216(a), or not meeting the Class B or C
criteria for dams in the NRCS publication Technical Release No. 60
(TR-60), a twenty-five (25) year, six (6) hour event, or greater
event as specified by the director.
5. Indiana revised clauses (d)(3)(A) and (B) to read as follows:
(A) In the case of a siltation structure meeting the Class B or
C criteria for dams in the NRCS publication Technical Release No. 60
(TR-60) or meeting the size or other criteria of 30 CFR 77.216(a),
it is designed to control the precipitation of the probable maximum
precipitation of a six (6) hour event, or greater event as specified
by the director; or
(B) In the case of a siltation structure not meeting the size or
other criteria of 30 CFR 77.216(a) or not meeting the Class B or C
criteria for dams in the NRCS publication Technical Release No. 60
(TR-60), it is designed to control the precipitation of a one
hundred (100) year, six (6) hour event, or greater event as
specified by the director.
O. 312 IAC 25-6-20 Surface Mining; Hydrologic Balance; Permanent and
Temporary Impoundments and 312 IAC 25-6-84 Underground Mining;
Hydrologic Balance; Permanent and Temporary Impoundments
Because the Underground Mining rule is structured the same as the
Surface Mining rule, the revisions discussed below pertain to both 312
IAC 25-6-20 and 312 IAC 25-6-84 with the following exception: Indiana
proposed to delete the language ``and located where failure would not
be expected to cause loss of life or serious property damage'' shown in
312 IAC 25-6-84(a)(3)(B) pertaining to underground mining. This
language is retained in the surface mining rule at 312 IAC 25-6-
20(a)(3)(B).
1. Indiana revised subdivision (a)(1) by requiring that an
impoundment meeting the Class B or C criteria for dams in the NRCS
publication Technical Release No. 60 (TR-60) or an impoundment meeting
the size or other criteria of 30 CFR 77.216(a) comply with the
requirements of 30 CFR 77.216 and 312 IAC 25-6.
2. Indiana revised clauses (a)(3)(A), (B) and (C) to read as
follows:
(A) An impoundment meeting the Class B or C criteria for dams in
the NRCS publication Technical Release No. 60 (TR-60) or an
impoundment meeting the size or other criteria of 30 CFR 77.216(a)
shall have a minimum static safety factor of one and five-tenths
(1.5) for a normal pool with steady state seepage saturation
conditions and a seismic safety factor of at least one and two-
tenths (1.2).
(B) Impoundments not meeting the Class B or C criteria for dams
in the NRCS publication Technical Release No. 60 (TR-60) or not
meeting the size or other criteria of 30 CFR 77.216(a), except for a
coal mine waste impounding structure, and located where failure
would not be expected to cause loss of life or serious property
damage shall have a minimum static safety factor of one and three-
tenths (1.3) for a normal pool with steady state seepage saturation
conditions.
(C) In lieu of meeting the static safety factor requirements of
clause (B), the applicant may elect, in order to ensure stability
for temporary impoundments not meeting the Class B or C criteria for
dams in the NRCS publication Technical Release No. 60 (TR-60) or not
meeting the size or other criteria of 30 CFR 77.216(a) to grade as
follows:
Please Note: As discussed earlier in this document, the language,
``and located where failure would not be expected to cause loss of life
or serious property damage,'' in clause (B) above is proposed for
removal in 312 IAC 25-6-84(a)(3)(B) pertaining to underground mining.
3. Indiana added the following new requirement to the end of
subdivision (a)(4):
Impoundments meeting the Class B or C criteria for dams in TR-60
shall comply with the freeboard hydrograph criteria in the ``Minimum
Emergency Spillway Hydrologic Criteria'' table in TR-60.
4. Indiana revised the second sentence of subdivision (a)(5) by
requiring foundation investigation, as well as any necessary laboratory
testing of foundation material, to be performed to determine the design
requirements for foundation failure for an impoundment meeting the size
or other criteria of 30 CFR 77.216(a) or the Class B or C criteria for
dams in the NRCS publication Technical Release No. 60 (TR-60).
5. Indiana added the following new requirement at clause
(a)(7)(B)(ii) and redesigned existing clause (a)(7)(B)(ii) as
(a)(7)(B)(iii) with revisions:
(ii) For an impoundment meeting the Class B or C criteria for
dams in TR-60, the emergency spillway hydrograph criteria in the
``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60,
or greater event as specified by the director.
(iii) For an impoundment not meeting the size or other criteria
of 30 CFR 77.216(a) or not meeting the Class B or C criteria for
dams in the NRCS publication Technical Release No. 60 (TR-60), a
twenty-five (25) year, six (6) hour event, or greater event as
specified by the director.
6. Indiana revised clause (a)(9)(B) by removing the language that
allowed a qualified registered professional land surveyor to certify an
impoundment.
7. Indiana revised clause (a)(9)(D) by requiring impoundments
subject to 30 CFR 77.216 or meeting the Class B or C criteria for dams
in the NRCS publication Technical Release No. 60 (TR-60) to be examined
in accordance with 30 CFR 77.216-3.
8. Indiana revised clause (a)(9)(E) by adding a reference to NRCS
Class B or C criteria for dams, removing the language that allowed a
qualified registered professional land surveyor to certify an
impoundment, and correcting a regulation reference. The revised clause
reads as follows:
(E) Impoundments that do not meet the size or other criteria of
30 CFR 77.216(a) or do not meet the Class B or C criteria for dams
in the NRCS publication Technical Release No. 60 (TR-60) shall be
examined at least quarterly by a qualified person designated by the
permittee for appearances of instability, structural weakness, or
other hazardous conditions. At least one (1) of the quarterly
examinations conducted during the calendar year shall be certified
by a qualified registered professional engineer and shall
[[Page 42935]]
include a discussion of any appearances of instability, structural
weakness, or other hazardous conditions, any other aspects of the
structure affecting stability, and a statement indicating the pond
has been maintained in accordance with the approved plan and this
section. This examination shall be conducted during the period of
October 1 through December 31 of each calendar year. The certified
examination report shall be submitted to the director within thirty
(30) days of the examination. Impoundment examinations shall be
conducted until the impoundment has been removed or until final bond
release in accordance with 312 IAC 25-5-16. If the operator can
demonstrate that failure of the structure would not create a
potential threat to public health and safety or threaten significant
environmental harm, the following impoundments shall be exempt from
the examination requirements of this clause, following approval by
the director:
9. Indiana made the following revisions to subdivisions (c)(1) and
(2) regarding temporary impoundments:
(1) Meeting the Class B or C criteria for dams in the NRCS
publication Technical Release No. 60 (TR-60) or meeting the size or
other criteria of 30 CFR 77.216(a), it is designed to control the
precipitation of the probable maximum precipitation of a six (6)
hour event, or greater event as specified by the director; or
(2) Not meeting the size or other criteria of 30 CFR 77.216(a)
or not meeting the Class B or C criteria for dams in the NRCS
publication Technical Release No. 60 (TR-60), it is designed to
control the precipitation of a one hundred (100) year, six (6) hour
event, or greater event as specified by the director.
P. 312 IAC 25-6-23 Surface Mining; Hydrologic Balance; Surface and
Ground Water Monitoring
Indiana added the following new clause (a)(4)(C):
(C) Minimize any adverse impact to the environment or public
health and safety resulting from noncompliance with any term or
condition of the permit to include, but not be limited to:
(i) Accelerated or additional monitoring necessary to determine
the nature and extent of noncompliance and the results of the
noncompliance;
(ii) Immediate implementation of measures necessary to mitigate
the noncompliance; and
(iii) As soon as practicable issue warning to any person whose
health and safety is in imminent danger due to the noncompliance.
Q. 312 IAC 25-6-25 Hydrologic Balance; Water Rights and Replacement
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 regarding water replacement rights and
replaced it with the following requirement:
Baseline hydrologic information required in 312 IAC 25-4-28 and
312 IAC 25-4-30 through 312 IAC 25-4-32 shall be used to determine
the extent of the impact of mining upon ground water and surface
water and other relevant information.
R. 312 IAC 25-6-66 Surface Mining; Primary Roads
Indiana removed existing clauses (2)(A), (B), and (C) and added the
substantive requirements of clauses (2)(A) and (C) to the text of
subdivision (2). Existing clauses (2)(C)(i) through (viii) were
redesigned as clauses (2)(A) through (H). The text of revised
subdivision (2) reads as follows:
(2) Each primary road embankment shall have a minimum static
safety factor of one and three-tenths (1.3) and be designed in
compliance with the following design standards:
S. 312 IAC 25-6-130 Underground Mining; Primary Roads
Indiana revised subdivision (2) to read as follows:
(2) Each primary road embankment shall be shown to have a
minimum static factor of one and three-tenths (1.3) or shall be
designed in compliance with the following design standards:
(A) The embankment foundation area shall be cleared of all
organic material and the entire foundation surface shall be
scarified.
(B) If the natural slope of the foundation as measured at a
right angle to the roadway center line is steeper than 8h:1v, the
embankment shall be benched into the existing slope beginning at the
embankment toe and then filled with compacted level lifts.
(C) The embankment fill material shall be free of sod, large
roots, and other large vegetative matter.
(D) The fill shall be brought up in horizontal layers of such
thickness as required to facilitate compaction in accordance with
prudent construction standards.
(E) The moisture content of the embankment shall be sufficient
to secure proper compaction.
(F) The side slope of the embankment shall be no steeper than
2h:v1.
(G) Maximum fill height shall be twenty-five (25) feet as
measured from the natural ground at the downstream toe to the top of
the embankment.
(H) The embankment shall have a minimum top width of (h + 35)/5,
where ``h'' is the embankment height as measured from natural ground
at the downstream toe to the top of the embankment and shall be
adequate for the intended use.
T. 312 IAC 25-7-1 Inspections of Sites
1. Indiana removed existing subdivision (a)(2) and redesignated
existing subdivisions (a)(3) and (4) as subdivisions (a)(2) and (3).
2. Indiana redesignated the existing subsection (f) as subsection
(h) and added the following new subsections (f) and (g):
(f) In lieu of the inspection frequency established in
subsection (a), the regulatory authority shall 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 shall the inspection frequency be set
at less than one (1) complete inspection per calendar year. In
selecting an alternate frequency authorized under this subsection,
the regulatory authority shall do the following:
(1) First conduct a complete inspection of the abandoned site.
(2) Provide public notice and opportunity to comment under
subsection (g).
(3) Prepare and maintain for public review a written finding
justifying the alternative inspection frequency selected. The
written finding shall justify the new inspection frequency by
affirmatively addressing in detail the following criteria:
(A) How the site meets each of the criteria under the definition
of an abandoned site in subsection (h) to qualify for a reduction in
inspection frequency.
(B) Whether, and to what extent, there exists on the site an
impoundment, an earthen structure, or another condition that poses,
or may reasonably be expected to ripen into, imminent dangers to the
health or safety of the public or significant environmental harm to
land, air, or water resources.
(C) The extent to which an existing impoundment or earthen
structure was constructed and certified in accordance with prudent
engineering designs approved in the permit.
(D) The degree to which erosion and sediment control is present
and functioning.
(E) The extent to which the site is located near or above an
urbanized area, a community, an occupied dwelling, a school, and
another public or commercial building or facility.
(F) The extent of reclamation completed prior to abandonment and
the degree of stability of an unreclaimed area, taking into
consideration any physical characteristic of the land mined and the
extent of settlement or revegetation that has occurred naturally.
(G) Based on a review of the complete or partial inspection
report record for the site during at least the last two (2)
consecutive years, the rate at which adverse environmental or public
health and safety conditions have and can be expected to
progressively deteriorate.
(g) The public notice and opportunity to comment required under
subsection (f)(2) shall be provided as follows:
(1) The regulatory authority shall place a notice in the
newspaper with the broadest circulation in the locality of the
abandoned site providing the public with a thirty (30) day period in
which to subject written comments.
(2) The public notice shall contain the following:
(A) Name of permittee.
(B) Permit number.
(C) Precise location of the land affected.
(D) Proposed inspection frequency.
[[Page 42936]]
(E) General reasons for reducing the inspection frequency.
(F) Bond status of the permit.
(G) Telephone number and address of the regulatory authority
where written comments on the reduced inspection frequency may be
submitted.
(H) Closing date of the comment period.
U. 312 IAC 25-7-20 Civil Penalties; Hearing Request
Indiana revised 312 IAC 25-7-20 to increase the time from 15 to 30
days from receipt of the conference officer's action that a person
charged with a violation may contest the proposed penalty or the fact
of the violation.
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 Field 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-141-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
Field 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.s.t. on
August 3, 2004. 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
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
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
[[Page 42937]]
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 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. 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; 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 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 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 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.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 17, 2004.
Charles E. Sandberg,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 04-16289 Filed 7-16-04; 8:45 am]
BILLING CODE 4310-05-P