Indiana Regulatory Program Amendment

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

Indiana Regulatory Program Amendment

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

Interior.

ACTION: Proposed rule.

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SUMMARY: OSM is announcing receipt of the final State-adopted language

of an amendment to the Indiana regulatory program (hereinafter referred

to as the ``Indiana program'') under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The amendment (#92-7) consists of

revisions to the Indiana rules concerning underground mine subsidence.

OSM is opening the public comment period on amendment #92-7 because

Indiana's final adopted language of this amendment differs from the

language of #92-7 was approved by OSM on May 17, 1993 (58 FR 28775).

The amendment is intended to revise the Indiana program to be

consistent with SMCRA and to incorporate State initiatives.

DATES: Written comments must be received by 4 p.m. e.s.t. May 23, 1994.

If requested, a public hearing on the proposed amendment will be held

on May 17, 1994. Requests to speak at the hearing must be received by 4

p.m., e.s.t. on May 9, 1994. Any disabled individual who has been for a

special accommodation to attend a public hearing should contact the

individual listed under FOR FURTHER INFORMATION CONTACT.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Roger W. Calhoun, Director, Indianapolis

Field Office at the first address listed below.

Copies of the Indiana program, the proposed amendment, a listing of

any scheduled public hearings, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

Friday, excluding holidays. Each requester may receive one free copy of

the proposed amendment by contacting OSM's Indianapolis Field Office.

Roger W. Calhoun, Director, Indianapolis Field Office, Office of

Surface Mining Reclamation and Enforcement, Minton-Capehart Federal

Building, Room 301, Indianapolis, Indiana 46204, Telephone: (317) 226-

6166

Indiana Department of Natural Resources, 402 West Washington Street,

room C256, Indianapolis, Indiana 46204, Telephone: (317) 232-1574

FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director,

Indianapolis Field Office, Telephone: (317) 226-6166.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program

II. Discussion of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the Indiana Program

On July 29, 1982, the Secretary of the Interior conditionally

approved the Indiana program. Background information on the Indiana

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the July 26,

1982, Federal Register (47 FR 32071). Subsequent actions concerning the

conditions of approval and program amendments can be found at 30 CFR

914.10, 914.15, and 914.16.

II. Discussion of the Proposed Amendment

By letter dated December 2, 1992 (Administrative Record No. IND-

1175), the Indiana Department of Natural Resources (INDR) submitted a

proposed amendment (#92-7) to the Indiana program. Amendment #92-7

proposed changes to the Indiana surface mining rules concerning

subsidence liability.

On May 17, 1993, OSM approved, with two exceptions, amendment #92-7

(58 FR 28775). By letter dated March 18, 1994 (Administrative Record

Number IND-1340), Indiana submitted to OSM a notice of the final

adoption of amendment #92-7 as published in the Indiana Register,

Volume 17, Number 6, pages 1086-1089 (March 1, 1994).

The final adopted language of amendment #92-7 differs in some ways

from the language approved by OSM on May 17, 1993. Therefore, OSM is

announcing a public comment period and inviting comment on the

substantive differences identified below.

1. 310 IAC 12-3-87.1(c)(2) Subsidence Control Plan

In May 17, 1993, Federal Register notice which approved most of

Indiana amendment #92-7 concerning subsidence, the Director did not

fully approve the proposed language at subsection 87.1(c)(2). The

language at subsection 87.1(c)(2) was approved except to the extent the

provision defers to State law to correct subsidence related material

damage.

On October 24, 1992, SMCRA was amended by the addition of new

section 720 concerning subsidence. New section 720 provides that

underground coal mining operations shall promptly repair, or compensate

for, material damage resulting from subsidence caused to any occupied

residential dwelling and structures related thereto, or noncommercial

building due to underground coal mining operations. The new SMCRA

provision does not provide for deference to State law regarding the

repair or compensation for material damage resulting from subsidence

due to underground coal mining operations. Therefore, in the May 17,

1993, Federal Register notice, the Director found the proposed language

at 310 IAC 12-3-87.1(c)(2) less effective than the counterpart Federal

regulations at 30 CFR 784.20(b) to the extent that the language affords

a lesser degree of protection to occupied residential dwellings,

related structures, and noncommercial buildings than SMCRA as revised.

Currently proposed subsection 87.1(c)(2) provides that the

subsidence control plan must contain a map of underground workings

which includes all areas where the measures described in subdivisions

(4) and (5) will be taken ``where appropriate under State law'' to

correct subsidence related material damage. The quoted language,

``where appropriate under state law'' is identical to the language

which OSM did not approve in the May 17, 1993, Federal Register notice.

In its submittal of this final adopted language, Indiana provided

two reasons for its retention of the language quoted above. First,

Indiana asserts that the language quoted above is substantively

identical to the counterpart Federal regulations at 30 CFR 784.20(b).

Second, Indiana asserts that a newly enacted statute, IC 13-4.1-9-2.5,

which was included in Senate Enrolled Act No. 408 and signed into

Indiana law on March 11, 1994, codifies the October 24, 1992, changes

made to Federal SMCRA at section 720. Specifically, Indiana asserts

that because Indiana law (IC 13-4.1-9-2.5) requires the correction of

material subsidence damage to the same degree as amended SMCRA at

section 720, the current regulation's (310 IAC 12-3-87.1(c)(2)(B)(ii))

reference to Indiana law is no longer less effective than the

requirements of the Federal program.

In its March 18, 1994, submittal of the notice of final adoption of

the subsidence rules contained in amendment #92-7, Indiana provided a

copy of the final language of the newly enacted subsidence statute at

IC 13-4.1-9-2.5 as contained in SEA 408. This information, as well as a

copy of OSM's May 17, 1993, approval (with exceptions) of amendment

#92-7 will be available for public review along with the final adopted

language.

2. 310 IAC 12-5-130.1 Subsidence Control; General Requirements

In the final adopted language at subsection 130.1(c)(2), language

appears which is identical to language which OSM did not approve in the

May 17, 1993, Federal Register notice. Specifically, the language at

subsection 130.1(c)(2) provides for the repair or compensation of

damage caused by subsidence ``[t]o the extent required under Indiana

law.'' In the May 17, 1993, notice at Finding #2, OSM did not approve

the language which reads ``[t]o the extent required under Indiana

law.''

OSM did not approve the Indiana deference to State law because it

afforded a lesser degree of protection to occupied residential

dwellings, related structures, and noncommercial buildings than section

720 of SMCRA. See Finding 1, above, for a discussion of section 720 of

SMCRA.

In the May 17, 1993, Federal Register notice (Finding 2) OSM

acknowledged that new section 720 of SMCRA supersedes, in part, 30 CFR

817.121(c)(2). 30 CFR 817.121(c)(2) contains language deferring to

State law. Specifically, 30 CFR 817.121(c)(2) is superseded to the

extent that it is inconsistent with SMCRA section 720 which does not

provide for deference to State law regarding repair or compensation of

subsidence caused material damage.

In its submittal of this final adopted language, Indiana provided

an explanation why the language which defers to State law was retained.

Indiana stated (also see Finding 1, above) that new Indiana law IC 13-

4.1-9-2.5 requires the correction of material subsidence damage to the

same degree as amend SMCRA at section 720. Therefore, Indiana asserts,

the language at 310 IAC 12-5-130.1(c)(2) which defers to State law is

no longer less effective than the requirements of the Federal program.

3. 310 IAC 12-5-130.1(g) Suspension of Underground Mining

Indiana added language to this provision after the provision was

approved by OSM on May 17, 1993. At subdivision 130.1(g)(2) the words

``under or'' are added. With the added language, the provision provides

that the director of IDNR shall suspend underground mining activities

under or adjacent to industrial or commercial buildings, pipelines,

major impoundments, or perennial streams.

In addition, the words ``under any other location'' are added in

new subdivision 130.1(g)(3). With this new language, the director of

IDNR shall suspend underground mining activities under any other

location if imminent danger is found to inhabitants of urbanized areas,

cities, towns, or communities ``or whenever required or authorized by

IC 13-4.1-11-5.''

The quoted language immediately above identifies the third revision

to subsection 130.1(g). With this new language, the director of IDNR

shall also suspend underground mining activities whenever required or

authorized by IC 13-4.1-11-5 concerning cessation orders.

4. 310 IAC 12-5-130.1(h) Detailed Report of Underground Workings

The changes in this subsection are related to the preparation and

certification of the required map of underground workings.

Specifically, Indiana has deleted the word ``registered'' immediately

preceding the words ``professional engineer.'' Also, the words ``or

registered land surveyor'' are added following the words ``professional

engineer.'' With these changes, the required map of underground

workings shall be prepared by, or under the direction of, and certified

by a qualified professional engineer or registered land surveyor with

assistance from experts in related fields such as land surveying.

Other nonsubstantive word changes and paragraph notations also

appear in the final adopted version of amendment #92-7.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Indiana program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Indianapolis Field Office

will not necessarily be considered in the final rulemaking or included

in the Administrative Record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t.

on May 9, 1994. The location and time of the hearing will be arranged

with those persons requesting the hearing. If no one requests an

opportunity to testify at the public hearing, the hearing will not be

held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to speak have been heard. Persons in the audience who

have not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the audience who wish

to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted in advance

at the locations listed under ADDRESSES. A written summary of each

meeting will be made a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This proposed 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: April 14, 1994.

Robert J. Biggi,

Acting Assistant Director, Eastern Support Center.

[FR Doc. 94-9827 Filed 4-21-94; 8:45 am]

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