# Indiana Regulatory Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A96-13264 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 28, 1996 - **Citation:** 61 FR 26442 ## Text [[Page 26443]] 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. ----------------------------------------------------------------------- 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 [[Page 26444]] 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). [[Page 26445]] 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] BILLING CODE 4310-05-M --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-13264. Public record. Not legal advice.