Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 914

[IN-112-FOR; Amendment 92-7C]

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, with exceptions, 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 is a continuation of an earlier program

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

and Reclamation Rules concerning the control of subsidence caused by

underground mining operations. The amendment is intended to revise the

Indiana program to be consistent with SMCRA and to incorporate State

initiatives.

EFFECTIVE DATE: April 20, 1995.

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 December 2, 1992 (Administrative Record No. IND-

1175), the Indiana Department of Natural Resources (IDNR) 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

reopened the public comment period and invited comment on the

substantive differences.

OSM announced receipt of the proposed amendment in the April 22,

1994, Federal Register (59 FR 19155), [[Page 19670]] 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 May 23, 1994.

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. Nonsubstantive word changes

and paragraph notation changes also appear in the final adopted version

of amendment #92-7. However, only the substantive changes are discussed

below.

1. 310 IAC 12-3-87.1 Subsidence Control Plan

a. 310 IAC 12-3-87.1(c)(2). In the 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.

The currently proposed 310 IAC 12-3-87.1(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 substantially

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 response to Indiana's assertions, the Director notes the

following. On March 31, 1995 (60 FR 16722-16751), OSM amended the

Federal subsidence regulations at 30 CFR 784 to bring those regulations

into conformance with SMCRA at new section 720. Currently, neither

SMCRA at section 720 nor 30 CFR 784.20(b) provide for deference to

State law regarding the repair or compensation for material damage

resulting from subsidence due to underground coal mining operations.

However, Indiana State law at IC 13-4.1-9-2.5 provides a

counterpart to SMCRA section 720 from June 30, 1994, on.

On April 4, 1995 (60 FR 16985), the Director published an approval

of IC 13-4.1-9-2.5, Indiana's new law concerning subsidence control. In

that notice, the Director determined that IC 13-4.1-9-2.5 is

substantively identical to and no less stringent than SMCRA at new

section 720 with one exception. The Indiana law applies only to damage

that occurs after June 30, 1994. SMCRA at section 729(a) provides that

underground coal mining operations conducted after the date of

enactment of section 720 (October 24, 1992) shall comply with each of

the requirements of section 720. Therefore, the Director approved IC

13-4.1-9-2.5 to the extent that the Indiana law meets the requirements

of SMCRA section 720(a) from June 30, 1994.

In addition, the Director deferred decision on the enforcement of

the provisions of SMCRA section 720(a) during the period from the

effective date of SMCRA section 720 (October 24, 1992) to the effective

date of IC 13-4.1-9-2.5 (June 30, 1994). Pursuant to newly promulgated

30 CFR 843.25, OSM intends to publish by July 31, 1995, for each State

with a regulatory program, including Indiana, final rule notices

concerning the enforcement of the provisions of the Energy Policy Act

in those States.

Since, by letter dated March 18, 1994 (Administrative Record IND-

1340), Indiana interpreted ``state law'' as used in 310 IACV 12-3-87.1

to mean the provisions found at IC 13-4.1-9-2.5, the Director finds

that this provision is no less effective than 30 CFR 784.20(b) and no

less stringent than SMCRA section 720, to the extent that IC 13-4.1-9-

2.5 meets the requirements of SMCRA section 720 from June 30, 1994. The

Director is deferring decision until July 31, 1995, on the enforcement

of the provisions of SMCRA section 720 and 30 CFR 784.20 during the

period from the effective date of SMCRA section 720 (October 24, 1992)

to the effective date of IC 13-4.1-9-2.5 (June 30, 1994).

b. 310 IAC 12-3-87.1(c)(7). In the second sentence of this

subdivision, Indiana is deleting the word ``operator'' and adding in

its place the word ``permittee.'' With this change, the permittee is

required to include required information in the permit application. The

word ``permittee'' is the appropriate word to use in this section on

permit application requirements. The Director finds the change to be

consistent with and no less effective than the Federal regulations at

30 CFR 784.20 concerning subsidence control plan.

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 its submittal of this final adopted language, Indiana provided

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

Indiana [[Page 19671]] 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 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.

As discussed in Finding 1 above, the new Indiana law at IC 13-4.1-

9-2.5 is substantially identical to and no less stringent than SMCRA at

section 720 except to the extent that the Indiana law applies only to

damage that occurs after June 30, 1994. SMCRA at section 720(a)

provides for such repair or compensation by underground coal mining

operations conducted after the date of enactment of section 720

(October 24, 1992). Since, by letter dated March 18, 1994

(Administrative Record No. IND-1340), Indiana interpreted ``state law''

as used in 310 IAC 12-5-130.1(c)(2), to mean the provisions found at IC

13-4.1-9-2.5, the Director finds that this provision is no less

effective than 30 CFR 817.121(a)(2) and no less stringent than SMCRA

section 720, to the extent that IC 13-4.1-9-2.5 meets the requirements

of SMCRA section 720 from June 30, 1994. The Director is deferring

decision on the enforcement of the provisions of SMCRA section 720 and

30 CFR 817.121 during the period from the effective date of SMCRA

section 720 (October 24, 1992) to the effective date of IC 13-4.1-9-2.5

(June 30, 1994).

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 INDR 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

INDR 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 INDR

shall also suspend underground mining activities whenever required or

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

finds that these changes are consistent with and no less effective than

the Federal regulations at 30 CFR 817.121(f).

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. The

Director finds that the amendments are not inconsistent with and are no

less effective than the counterpart Federal regulations at 30 CFR

817.121(g) which provide that the operator shall submit a detailed plan

of the underground workings.

5. Repealed Provisions

Indiana proposes to repeal 310 IAC 12-3-87, 310 IAC 12-5-130, 310

IAC 12-5-131, and IAC 12-5-132. The provisions are proposed for repeal

because they are replaced by 310 IAC 12-3-87.1, 310 IAC 12-5-130.1, and

10 IAC 12-5-131.1.

The Director is approving the repeal of 310 IAC 12-3-87, 310 IAC

12-5-130, and 310 IAC 12-5-131 because such repeal does not render the

Indiana program less effective than the Federal regulations. The

director is deferring decision on the repeal of 310 IAC 12-5-132 until

July 31, 1995, when OSM will address the enforcement of the provisions

of SMCRA section 720 and 30 CFR 784.20 during the period from the

effective date of SMCRA section 720 (October 24, 1992) to the effective

date of IC 13-4.1-9-2.5 (June 30, 1994).

IV. Summary and Disposition of Comments

Federal Agency Comments

Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i),

comments were solicited from various interested Federal agencies. The

U.S. Department of Agriculture, Soil Conservation Service (SCS)

commented on the amendment (Administrative Record Number IND-1345). The

SCS stated that the SCS determined that the changes will not impact SCS

programs differently from the existing rules.

Public Comments

The public comment period and opportunity to request a public

hearing was announced in the April 22, 1994, Federal Register (59 FR

19155). The comment period closed on May 23, 1994. No one requested an

opportunity to testify at the scheduled public hearing so no hearing

was held.

Ms. Freida K. Harris commented that OSM should not approve the

proposed amendments because the amendments contain language which OSM

has previously not approved. Specifically, the commenter is referring

to Indiana's deference to State law at 310 IAC 12-3-87.1(c)(2)(B)(ii)

and 310 IAC 12-5-130.1(c)(2).

As discussed above in Findings 1 and 2, the Director did not fully

approve the previously-proposed language at 310 IAC 12-3-87.1(c)(2) and

310 IAC 12-5-130.1(c)(2) to the extent that the proposed language

deferred to State law to correct subsidence related material damage.

Since the time of that final rule notice, however, Indiana amended its

statutes by adding IC 13-4.1-9-2.5 as a counterpart to the new SMCRA

provision at section 720 concerning subsidence liability. Upon review

of Indiana's new subsidence statute, the Director determined that the

subsidence statute is no less stringent than SMCRA at section 720 to

the extent that Indiana's statue meets the requirements of SMCRA

section 720 from June 30, 1994. As discussed in Findings 1 and 2 above,

the Director is deferring, until July 31, 1995, decision concerning the

enforcement of the provisions of the Energy Policy Act in Indiana

during the period from the effective date of SMCRA section 720 (October

24, 1992) to the effective date of IC 13-4.1-9-2.5 (June 30, 1994). In

the March 31, 1995, approval of the Federal subsidence regulations (60

FR 16722-16751) OSM stated that it will publish proposed notices and

open public comment periods to seek comment on information submitted by

States with approved regulatory programs, including Indiana, concerning

enforcement of the Energy Policy Act provisions in those States. The

public comment period for Indiana closes on May 8, 1995.

Mr. R. Gehres commented on the proposed changes at 310 IAC 12-5-

130.1(h). Specifically, the commenter objected to the removal of the

term ``registered'' as it appeared before the words ``professional

engineer,'' and to the addition of a ``registered land surveyor'' to

the language describing who must prepare the required maps of

[[Page 19672]] underground workings. In response, the Director notes

that the counterpart Federal regulations at 30 CFR 817.121(g), while

requiring the submittal of a detailed plan of the underground workings

do not specify the credentials of individuals who may prepare those

plans. Therefore, Indiana's amendments at 310 IAC 12-5-130.1(h) do not

render the Indiana language less effective than 30 CFR 817.121(g).

Amoco Pipeline Company and Tennico Gas, Inc., pipeline operators,

commented that the proposed amendments provide inadequate protection to

pipelines from unplanned subsidence. The proposed wording is

unnecessarily restrictive without justification the commenter stated.

In response, the Director notes that the proposed Indiana language

is patterned after the Federal regulations at 30 CFR 817.121 concerning

subsidence control, and SMCRA at section 720 concerning repair or

compensation of subsidence damage. On March 31, 1995 (60 FR 16722-

16751), OSM published subsidence regulations that are intended to

implement the new provisions at SMCRA section 720. In that notice, OSM

noted that Congress directed OSM to review existing Federal, State, and

local laws, as well as common law related to underground coal mine

subsidence and natural gas and petroleum pipeline safety. Since that

mandated review and report are not finished, OSM believes that it would

be premature to revise existing law at this time.

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 that 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

responded by letter dated June 21, 1994 (Administrative Record Number

IND-1373). In that letter, the EPA concurred without comment.

V. Director's Decision

Based on the findings above, the Director is approving, except as

noted below, Indiana's program amendment concerning subsidence as

submitted by Indiana on March 18, 1994. As discussed above in Finding 1

concerning 310 IAC 12-3-87.1(c)(2) and Finding 2 Concerning 310 IAC 12-

5-130.1(c)(2), the Director is approving the propose deference to State

law to the extent that IC 13-4.1-9-2.5 meets the requirements of SMCRA

section 720 from June 30, 1994. The Director is deferring decision on

the enforcement of the provisions of SMCRA section 720 during the

period from the effective date of SMCRA section 720 (October 24, 1992)

to the effective date of IC 13-4.1-9-2.5 (June 30, 1994). As discussed

in Finding 5, the Director is deferring decision on the repeal of 310

IAC 12-5-132.

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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In his

oversight of the Indiana program, the Director will recognize only the

statutes, regulations and other materials approved by him, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Indiana of only such

provisions.

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.

[[Page 19673]] Dated: April 14, 1995.

Tim L. Dieringer,

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 Sec. 914.15, paragraph (iii) is added to read as follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(iii) The following amendment to the Indiana program concerning

underground mine subsidence as submitted to OSM on March 18, 1994, is

approved, except as noted herein, effective April 20, 1995: 310 IAC 12-

3-87.1(c)(2) concerning subsidence control plan, to the extent that IC

13-4.1-9-2.5 meets the requirements of SMCRA section 720 from June 30,

1994. The Director is deferring decision on the enforcement of the

provisions of SMCRA section 720 during the period from the effective

date of SMCRA section 720 (October 24, 1992) to the effective date of

IC 13-4.1-9-2.5 (June 30, 1994); 310 IAC 12-3-87.1(c)(7) concerning

subsidence control plan; 310 IAC 12-5-130.1(c)(2) concerning subsidence

control plan, general requirements, to the extent that IC 13-4.1-9-2.5

meets the requirements of SMCRA section 720 from June 30, 1994. The

Director is deferring decision on the enforcement of the provisions of

SMCRA section 720 during the period from the effective date of SMCRA

section 720 (October 24, 1992) to the effective date of IC 13-4.1-9-2.5

(June 30, 1994); 310 IAC 12-5-130.1(g) concerning suspension of

underground mining; 310 IAC 12-5-130.1(h) concerning detailed report of

underground workings; the repeal of 310 IAC 12-3-87, 310 IAC 12-5-130,

and 310 IAC 12-5-131; decision on the repeal of 310 IAC 12-5-132 is

deferred.

[FR Doc. 95-9775 Filed 4-19-95; 8:45 am]

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