Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-138-FOR; State Program Amendment No. 95-3 II]

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

regulatory program (hereinafter referred to as the ``Indiana program'')

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

Indiana proposed revisions to its rules pertaining to the small

operator assistance program (SOAP). Topics covered in the proposed

amendment are definitions for program administrator and qualified

laboratory, eligibility for assistance, filing for assistance,

application approval and notice, program services and data

requirements, qualified laboratories, assistance funding, and applicant

liability. The amendment is intended to revise the Indiana program to

be consistent with the corresponding Federal regulations and to

incorporate changes desired by the State.

EFFECTIVE DATE: August 25, 1997.

FOR FURTHER INFORMATION CONTACT:

Andrew R. Gilmore, 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) 226-6700.

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.

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II. Submission of the Proposed Amendment

By letter dated January 13, 1997 (Administrative Record No. IND-

1550), Indiana submitted a proposed amendment to its program pursuant

to SMCRA. Indiana submitted the proposed amendment at its own

initiative. The proposed amendment revises the Indiana Administrative

Code (IAC) at 310 IAC 12-3 pertaining to SOAP.

OSM announced receipt of the proposed amendment in the February 18,

1997, Federal Register (62 FR 7192), and in the same document opened

the public comment period and provided an opportunity for a public

hearing or meeting on the adequacy of the proposed amendment. A

proposed rule correction notice was published in the March 18, 1997,

Federal Register (62 FR 12766). The public comment period closed on

March 20, 1997. Because no one requested a public hearing or meeting,

none was held.

During its review of the amendment, OSM identified concerns

relating to technical errors at 310 IAC 12-3-130(5), definition of

qualified laboratory; 310 IAC 12-3-131(2)(B), eligibility for

assistance; and 310 IAC 12-3-132(a)(3)(C), filing for assistance. OSM

notified Indiana of these concerns by letter dated March 26, 1997

(Administrative Record No. IND-1562).

By letter dated April 30, 1997 (Administrative Record No. IND-

1569), Indiana responded to OSM's concerns by submitting additional

explanatory information showing that the editorial errors at 310 IAC

12-3-130(5), 12-3-131(2)(B), and 12-3-132(a)(3)(C) had either been

corrected or would be corrected in an Errata to be published upon final

approval of the proposed amendment by the Governor of Indiana. Because

the additional information merely clarified certain provisions of

Indiana's proposed amendment, OSM did not reopen the public comment

period.

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.

A. Withdrawal of Previously Approved SOAP Amendment

Indiana notified OSM in its letter dated January 13, 1997, that the

Indiana Legislative Service Agency had rejected, for procedural

reasons, a proposed SOAP amendment dated May 3, 1995, which was

approved by the Director and codified on October 25, 1995 (60 FR

54593). Since Indiana did not adopt the SOAP amendment, the Director is

removing the approval and is amending 30 CFR 914.15 to reflect this

decision.

B. Revisions to Indiana's Rules That Are Substantively Identical to the

Corresponding Provisions of the Federal Regulations

1. The proposed State rules listed in the table contain language

that is the same as or similar to the corresponding sections of the

Federal regulations pertaining to SOAP. Differences between the

proposed State rules and the Federal regulations are nonsubstantive.

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Topic State regulation Federal regulation counterpart

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Definition for program 310 IAC 12-3-130(4)................... 30 CFR 795.3

administrator.

Definition for qualified 310 IAC 12-3-130(5)................... 30 CFR 795.3

laboratory.

Eligibility for assistance....... 310 IAC 12-3-131...................... 30 CFR 795.6

Filing for assistance............ 310 IAC 12-3-132...................... 30 CFR 795.7

Application approval and notice.. 310 IAC 12-3-132.5.................... 30 CFR 795.8

Program services and data 310 IAC 12-3-133...................... 30 CFR 795.9

requirements.

Qualified laboratories........... 310 IAC 12-3-134.1.................... 30 CFR 795.10

Assistance funding............... 310 IAC 12-3-134.5.................... 30 CFR 795.11

Applicant liability.............. 310 IAC 12-3-135 (a) (1) through (3) 30 CFR 795.12

and (b).

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Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, the Director finds that

Indiana's proposed rules are no less effective than the Federal

regulations.

2. Indiana also proposed to remove previously approved 310 IAC 12-

3-134, concerning qualified laboratories, and to replace it with 310

IAC 12-3-134.1. As noted in the above table, 310 IAC 12-3-134.1 is

substantively identical to the Federal regulations at 30 CFR 795.10,

concerning qualified laboratories. Therefore, the proposed removal of

310 IAC 12-3-134 will not render the Indiana rules less effective than

the Federal regulations.

C. Revisions to Indiana's Rules With No Corresponding Federal

Regulations

At 310 IAC 12-3-135(a)(4), Indiana proposed to include another

criterion under which a SOAP applicant is responsible for reimbursing

Indiana for the cost of services rendered under its program. This

criterion requires the applicant to reimburse Indiana if mining does

not begin within six months after obtaining the permit. The Federal

regulations at 30 CFR 795.12(a), concerning applicant liability for

reimbursement of the cost of services, do not contain this specific

requirement. However, the Director finds the proposed regulation is not

inconsistent with the intent of the requirements of SMCRA or the

Federal regulations pertaining to reimbursement for SOAP services.

Therefore, the addition of this new criterion does not render the

Indiana rules less effective than the Federal regulations at 30 CFR

Part 795.12.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment, but none

were received.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Indiana program (Administrative

Record No. IND-1552). On February 13, 1997, the U.S. Fish and Wildlife

Service responded that it had no specific comments on the program

amendment (Administrative Record No. IND-1554). On March 6, 1997, the

U.S. Mine Safety and Health Administration responded that no comments

were being submitted for the proposed revisions (Administrative Record

No. IND-1561).

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Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed 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.).

None of the revisions that Indiana proposed to make in this amendment

pertain to air or water quality standards. Therefore, OSM did not

request the EPA's concurrence.

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

proposed amendment from the EPA (Administrative Record No. IND-1552).

The EPA did not respond to OSM's request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

IND-1552). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based upon the above findings, the Director approves the proposed

amendments as submitted by Indiana on January 13, 1997, and as revised

on April 30, 1997.

The Director approves the rules as proposed by Indiana with the

provision that they be fully promulgated in identical form to the rules

submitted to and reviewed by OSM and the public.

For the reasons discussed in finding III.A, the Director is also

amending 30 CFR Part 914 by removing the approval of an Indiana

proposed amendment that was submitted on May 3, 1995, and codified on

October 25, 1995 (60 FR 54593).

The Federal regulations at 30 CFR Part 914, codifying decisions

concerning the Indiana program, are being amended to implement the

above decisions. 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 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 Part 914

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 23, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 914 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 in the table by revising the entry for

``Original amendment submission date'' of May 3, 1995, and by adding a

new entry in chronological order by ``Date of final publication'' to

read as follows:

Sec. 914.15 Approval of Indiana regulatory program amendments.

* * * * *

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Original amendment submission date Date of final publication Citation/description

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* * * * * * *

May 3, 1995.............................. September 14, 1995...................... 310 IAC 12-5-64.1(c), -

128.1(c); correction of

typographical, clerical,

spelling errors

* * * * * * *

January 13, 1997......................... August 25, 1997......................... 310 IAC 12-3-130 (4), (5), -

131, -132, -132.5, -133, -

134, -134.1, -134.5, -135

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[FR Doc. 97-22412 Filed 8-22-97; 8:45 am]

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