Indiana Regulatory Program

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-112-FOR; Amendment No. 92-7C]

Indiana Regulatory Program

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

Interior.

ACTION: Final rule; clarification/approval of amendment.

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SUMMARY: OSM is clarifying the previous approval, and noted deferrals

therein, of an 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

consisted of revisions to Indiana's Surface Coal Mining and Reclamation

Rules concerning the control of subsidence caused by underground mining

operations. The amendment was submitted to revise the Indiana program

to be consistent with SMCRA and to incorporate State initiatives.

EFFECTIVE DATE: May 28, 1996.

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,

Indiana 46204-1521, Telephone (317) 226-6166.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program

II. Submission of the Proposed 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 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 32107). Subsequent actions concerning the

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

914.10, 914.15, and 914.16.

II. Submission of the Proposed 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 differed 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 (i.e., the adopted

language of #92-7) in the April 22, 1994, Federal Register (59 FR

19155), and in the same document 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.

On April 20, 1995, OSM approved the amendment with deferrals on

decisions in three areas until July 31, 1995, when OSM was to address

the enforcement of SMCRA section 720 and 30 CFR 784.20 and 817.121 (60

FR 19669). The deferrals related to the above enforcement provisions

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

24, 1992) to the effective date of the corresponding Indiana statute IC

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

On July 28, 1995, OSM announced its decision on initial enforcement

of underground coal mine subsidence control and water replacement

requirements in Indiana (60 FR 38680). After consultation with Indiana

and consideration of public comments, OSM decided that initial

enforcement in Indiana would be accomplished through joint Indiana and

OSM enforcement. OSM, however, did not specifically address the

deferrals of the April 20, 1995, approval (60 FR 19669).

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

deferrals contained in the original approval of the proposed amendment

(60 FR 19669). These findings are based on the original proposed

amendment and the April 20, 1995, approval and deferrals related to the

enforcement scheme as published on July 28, 1995. It should be noted

that the July 28, 1995, decision addressed only the initial enforcement

schemes for water replacement (30 CFR 817.41(j)) and subsidence damage

repair/compensation (30 CFR 817.121(c)(2)) provided for under section

720 of the Surface Mining Control and Reclamation Act of 1977 (SMCRA),

as amended by the Energy Policy Act of 1992, Pub. L. 102-486, 106 Stat.

2776(1992). In addition to the basic water supply replacement

requirement and the related subsidence damage repair requirement, the

implementing Federal regulations that became effective March 31, 1995,

contain other related supporting and permitting provisions. OSM

anticipates that these other requirements will become effective in the

same way as other revisions to the permanent program regulations; i.e.,

in primacy states such as Indiana, upon adoption of counterpart State

regulatory program provisions (60 FR 16722). This process will be

initiated separately by OSM under the provisions of 30 CFR 732.17(d)).

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

310 IAC 12-3-87.1(c)(2). In the April 20, 1995, Federal Register,

the Director approved the language at subsection 87.1(c)(2) to the

extent that it met the requirements of SMCRA section 720 and 30 CFR

784.20 from June 30, 1994. However, the Director deferred a 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 the

corresponding Indiana statute IC 13-4.1-9-2.5 (June 30, 1994).

On July 28, 1995, OSM announced its decision on initial enforcement

of underground coal mine subsidence control and water replacement

requirements in Indiana (60 FR 38680). After consultation with Indiana

and consideration of public comments, OSM decided that initial

enforcement in Indiana would be accomplished through joint Indiana and

OSM enforcement. In discussions leading to this decision, Indiana

indicated that Indiana law at IC 13-4.1-9-2.5 incorporates the

substantive language of section 620 of SMCRA and applies to underground

mining operations conducted after June 30, 1994. For underground mining

operations conducted in Indiana in the interim period between October

24, 1992 (the effective date of the Energy Policy Act of 1992 and SMCRA

section 720), and June 30, 1994 (the effective

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date of Indiana law counterpart to the Energy Policy Act of 1992), the

State concluded that the existing Indiana program provisions provide

the IDNR with sufficient authority to impose the requirements of the

Energy Policy Act of 1992 with respect to underground mining operations

conducted in Indiana during the interim period. The State concluded,

however, that although it believes that the IDNR has sufficient

authority to impose the requirements of the Energy Policy Act of 1992

during the interim period, joint State and OSM enforcement in Indiana

should be the chosen enforcement scheme in Indiana, as it would assure

protection for the citizens of Indiana during the interim period

(Administrative Record Number IND-1494). Under this scheme, the IDNR

would enforce the requirements of the Energy Policy Act of 1992 in

Indiana from June 30,1994, and during the interim period to the extent

permissible under Indiana law. OSM would enforce the requirements of

the Energy Policy Act of 1992 in the interim period only if a situation

arose where the State could not so enforce.

Based on the discussion above, the Director finds that 310 IAC 12-

3-87.1(c)(2) is no less effective than 30 CFR 784.20 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 and 30 CFR 784.20 from June

30, 1994, and the enforcement scheme approved July 28, 1995, meets the

requirements 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).

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

310 IAC 12-5-130.1(c)(2). In the April 20,1995, Federal Register,

the Director approved the language at subsection 130.1(c)(2) to the

extent that it met the requirements of SMCRA section 720 from June 30,

1994. However, the Director deferred a decision until July 31, 1995, 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 the corresponding Indiana

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

As discussed in Finding 1 above, on July 28, 1995, OSM announced

its decision on initial enforcement of underground coal mine subsidence

control and water replacement requirements in Indiana (60 FR 38680).

OSM decided that initial enforcement would be accomplished through

joint Indiana and OSM enforcement. The IDNR would enforce the

requirements of the Energy Policy Act of 1992 in Indiana from June 30,

1994, and during the interim period (October 24, 1992-June 30, 1994) to

the extent permissible under Indiana law. OSM would enforce the

requirements of the Energy Policy Act of 1992 in the interim period

only if a situation arose where the State could not so enforce.

Based on the above discussion, the Director finds that 310 IAC 12-

5-130.1(c)(2) is no less effective than 30 CFR 817.121(c)(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, and

the enforcement scheme approved July 28, 1995, meets the requirements

of SMCRA section 720 and 30 CFR 817.121(c)(2) 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. Repeal of 310 IAC 12-5-132

Indiana proposed the repeal of 310 IAC 12-3-87, 310 IAC 12-5-130,

310 IAC 12-5-131, and 310 IAC 12-5-132 because the provisions were

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

131.1. The Director deferred decision on the repeal of 310 IAC 12-5-132

until July 31, 1995, when OSM was to address the enforcement of the

provisions of SMCRA section 720 and 30 CFR 784.20 and 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).

As discussed in Findings 1 and 2 above, on July 28, 1995, OSM

announced its decision on initial enforcement of underground coal mine

subsidence control and water replacement requirements in Indiana (60 FR

38680), finding that initial enforcement would be accomplished through

joint Indiana and OSM enforcement. IDNR would enforce the requirements

of the Energy Policy Act of 1992 in Indiana from June 30, 1994, and

during the interim period (October 24, 1992-June 30, 1994) to the

extent permissible under Indiana law. OSM would enforce the

requirements of the Energy Policy Act of 1992 in the interim period

only if a situation arose where the State would not so enforce.

Based on the above discussion, the Director is approving the repeal

of 310 IAC 12-5-132 because appropriate provisions are replaced by 310

IAC 12-3-87.1 and 310 IAC 12-5-130.1 and the repeal does not render the

Indiana program less effective than the counterpart Federal

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

of SMCRA section 720 from June 30, 1994, and the enforcement scheme

approved July 28, 1995, meets the requirements of SMCRA section 720 and

30 CFR 784.20 and 817.121(c)(2) 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

Comments on the initial submittal were solicited from Federal

agencies and the public on January 14, 1993 (58 FR 4372), and on the

adopted language of the approved changes on April 22, 1994 (59 FR

19155). Comments received were discussed in the related Federal

Registers of May 17, 1993 (58 FR 28775), and April 20, 1995 (60 FR

19669), respectively. As this current action is based on language of

the previous submittals, the solicitation of additional comments is not

necessary; refer to the Federal Registers identified above for the

discussion of comments received.

V. Director's Decision

Based on the findings above, the Director is approving the three

provisions of Indiana's program amendment concerning subsidence, as

originally submitted by Indiana on March 18, 1994, and for which the

decisions were deferred in the April 20, 1995, Federal Register (60 FR

19669). 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 proposed 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, and the enforcement scheme approved July 28, 1995, meets

the requirements of SMCRA section 720 and 30 CFR 784.20 and

817.121(c)(2) 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 3, the Director is also

approving 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.

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).

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Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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

corresponding 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 corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 8, 1996.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating 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. Section 914.15 is amended by adding paragraph (qqq) to read as

follows:

Sec. 914.15 Approval of regulatory program amendments.

* * * * *

(qqq) The revised provisions at 310 IAC 12-3-87.1(c)(2) and 310 IAC

12-5-130.1(c)(2) and the repeal of 310 IAC 12-5-132 contained in

Indiana's program amendment concerning subsidence, as originally

submitted by Indiana on March 18, 1994, and for which the decisions

were deferred on April 20, 1995, are approved effective May 28, 1996.

[FR Doc. 96-13264 Filed 5-24-96; 8:45 am]

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