Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

Indiana Regulatory Program

agency: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

action: Final rule; approval of amendment.

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summary: OSM is approving a proposed amendment to the Indiana permanent

regulatory program (hereinafter referred to as the Indiana program)

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The amendment consists of revisions to Indiana's Surface Coal Mining

and Reclamation Statutes concerning an exemption for operations

conducted under IC 13-4.1 (Indiana SMCRA) from the need for a

``construction in a floodway'' permit issued by the Indiana Department

of Natural Resources (IDNR), Division of Water. The amendment is

intended to consolidate and streamline Indiana's permit system by

implementing statutory changes contained in the 1993 Senate Enrolled

ACT (SEA) 179.

effective date: July 27, 1994.

for further information contact: Mr. Roger W. Calhoun, Director,

Indianapolis Field Office, Office of Surface Mining Reclamation and

Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania

Street, Room 301, Indianapolis, IN 46204, Telephone (317) 226-6166.

supplementary information:

I. Background on the Indiana Program.

II. Submission of the Amendment.

III. Director's Findings.

IV. Summary and Disposition of Comments.

V. Director's Decision.

VI. Procedural Determinations.

I. Background on the Indiana Program

On July 29, 1982, the Indiana program was made effective by the

conditional approval of the Secretary of the Interior. Information

pertinent to the general background on the Indiana program, including

the Secretary's findings, the disposition of comments, and a detailed

explanation of the conditions of approval of the Indiana program can be

found in the July 26, 1982 Federal Register (47 FR 32107). Subsequent

actions concerning the conditions of approval and program amendments

are identified at 30 CFR 914.10, 914.15, and 914.16.

II. Submission of the Amendment

By letter dated October 1, 1993 (Administrative Record Number IND-

1325), the IDNR submitted a proposed amendment to the Indiana program

concerning statutes enacted by Indiana under SEA 179 from the 1993

Indiana Legislative Session. SEA 179 contains numerous amendments to

the Indiana statutes, but only those which pertain to the Indiana

program are discussed below.

OSM announced receipt of the proposed amendment in the May 5, 1994,

Federal Register (59 FR 23176), and, in the same notice, opened the

public comment period and provided opportunity for a public hearing on

the adequacy of the proposed amendment. The comment period closed on

June 6, 1994. On May 26, 1994 (59 FR 27251), OSM corrected a

typographical error in the May 5, 1994, proposed rule announcement.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment to the Indiana program.

IC 13-4.1-4 Permit Approval or Denial

Indiana has amended subsection IC 13-4.1-4-3(a) concerning the

findings required to be made by the director of the IDNR prior to

issuing a permit. New subdivision 3(a)(10) is added to provide as

follows:

(10) if any part of the operation would take place in a floodway

(as defined in IC 13-2-22-3), the operation will not:

(A) result in unreasonably detrimental effects upon the fish,

wildlife, or botanical resources;

(B) adversely affect the efficiency; or

(C) unduly restrict the capacity of the floodway.

In its submittal of this amendment, Indiana explained that the

proposed language quoted above is being added to the Indiana program as

a consequence of an amendment to IC 13-2-22-13. New subdivision

13(e)(3) is added to IC 13-2-22-13 to provide that operations conducted

under IC 13-4.1 (Indiana SMCRA) are exempted from the need for a

``construction in a floodway'' permit issued by the IDNR, Division of

Water. Instead, any activity in a floodway which is to be conducted as

part of an operation regulated under IC 13-4.1 must be identified in

the permit application to the Division of Reclamation. A determination

must then be made by the Division of Reclamation that the environmental

standards identified in the proposed language are met. This

determination will then become part of the ``Findings Document'' which

accompanies each of the Division's final permit recommendations.

There is no direct Federal counterpart in SMCRA or the Federal

regulations to the proposed amendment. As explained by Indiana in its

submittal of this amendment, the purpose of this legislative change is

to consolidate and streamline the permit system as well as strengthen

the technical review of the floodway permit work. Indiana further

explained that any disturbance on a mine site is part of a much larger

effort already being reviewed by the Division of Reclamation. Further,

Indiana asserts that this change allows for a more thorough evaluation

of the work when taken in context with the overall plan of operation.

The Director finds that the proposed amendments are not

inconsistent with SMCRA and the Federal regulations. None of the

existing Indiana program provisions are rendered less effective by the

inclusion of the proposed provisions in the Indiana program. On the

contrary, all of the approved provisions of the Indiana program remain

in full effect. Further, the proposed provisions are not inconsistent

with SMCRA sections 503 concerning State programs, and 505 concerning

State laws. Therefore, the Director is approving the amendment.

IV. Summary and Disposition of Comments

Federal Agency Comments

Pursuant to section 503(b) of SMCRA and 3 CFR 732.17(h)(11)(i),

comments were solicited from various interested Federal agencies. The

U.S. Fish and Wildlife Service (FWS) commented on the amendment

(Administrative Record Number IND-1378). The FWS stated that if the

review of impacts to ``fish, wildlife, and botanical resources''

continues to be administered by the IDNR's Division of Fish and

Wildlife, or other trained fish and wildlife biologists, the FWS

assumes that the level of protection of fish and wildlife resources

would not be changed from the current situation. As discussed above in

the Director's Findings, Indiana explained in its submittal that the

proposed amendment should strengthen the technical review of the

floodway permit work since the review will become part of a much larger

effort already being conducted by the Division of Reclamation. The

change, Indiana asserts, will allow for a more thorough evaluation of

the construction on a floodway. In his review of this amendment, the

Director has concluded that none of the existing Indiana program

provisions are rendered less effective by the inclusion of the proposed

provisions in the Indiana program.

The FWS further stated that the FWS does not anticipate any impacts

to Federally endangered/threatened species as a result of the proposed

revision. The Director concurs.

Public Comments

The public comment period and opportunity to request a public

hearing was announced in the May 5, 1994, Federal Register (59 FR

23176). The comment period closed on June 6, 1994. No one requested an

opportunity to testify at the scheduled public hearing so no hearing

was held. No public comments were received in response to this

amendment.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the Administrator of the EPA with respect to

any provisions of a State program amendment that relate to air or water

quality standards promulgated 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.). The Director has determined that this amendment contains no

provisions in these categories and the EPA's concurrence is not

required.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (Administrative Record No. IND-1221). EPA

did not respond to OSM's request.

V. Director's Decision

Based on the findings above, the Director is approving Indiana's

program amendment concerning construction in a floodway as submitted by

Indiana on October 1, 1993. The Federal regulations at 30 CFR Part 914

codifying decisions concerning the Indiana program are being amended to

implement this decision. This final rule is being made effective

immediately to expedite the State program amendment process and to

encourage States to bring their programs into conformity with the

Federal standards without undue delay. Consistency of State and Federal

standards is required by SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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 has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 20, 1994.

Patricia P. Acker,

Acting Assistant Director, Eastern Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 914--INDIANA

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

follows:

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

2. In Section 914.15, paragraph (bbb) is added to read as follows:

Sec. 914.15 Approval of regulatory program amendments

* * * * *

(bbb) The following amendment to the Indiana program concerning

construction in a floodway as submitted to OSM on October 1, 1993, is

approved effective July 27, 1994: 310 IAC 13-4.1-4-3(a)(10) concerning

required findings on construction in a floodway.

[FR Doc. 94-18200 Filed 7-26-94; 8:45 am]

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