Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-127-FOR; State Program Amendment No. 95-5]

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 an exemption for

coal extraction incidental to the extraction of other minerals. The

amendment is intended to revise the Indiana program to be consistent

with the corresponding Federal regulations.

EFFECTIVE DATE: September 8, 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.

II. Submission of the Proposed Amendment

By letter dated March 7, 1997 (Administrative Record No. IND-1565),

Indiana submitted a proposed amendment to its program pursuant to

SMCRA. Indiana submitted the proposed amendment in response to the

required program amendments at 30 CFR 914.16(cc) and 914.16(dd). The

proposed amendment revises the Indiana Administrative Code (IAC) at 310

IAC 12-1 pertaining to an exemption for coal extraction incidental to

the extraction of other minerals.

OSM announced receipt of the proposed amendment in the April 29,

1997, Federal Register (62 FR 23192), 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. The

public comment period closed on May 29, 1997. Because no one requested

a public hearing or meeting, none was held.

During its review of the amendment, OSM identified a concern

relating to 310 IAC 12-1-7.1(a), public availability of information

submitted for an exemption for coal extraction incidental to the

extraction of other minerals. The proposed rule did not specify where

the information would be made available. OSM notified Indiana of this

concern by letter dated June 16, 1997 (Administrative Record No. IND-

1572).

By letter dated July 11, 1997 (Administrative Record No. IND-1577),

Indiana responded to OSM's concern by submitting a policy statement

specifying where all public documents, including information submitted

under 310 IAC 12-1, would be maintained for inspection and copying by

the public. Because the additional information merely clarified the

provision at 310 IAC 12-1-7.1(a), 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. Revisions not specifically discussed below concern

nonsubstantive wording changes, or revised cross-references and

paragraph

[[Page 47139]]

notations to reflect organizational changes resulting from this

amendment.

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

Corresponding Provisions of the Federal Regulations

The proposed State rules, pertaining to an exemption for coal

extraction incidental to the extraction of other minerals, listed in

the table contain language that is the same as or similar to the

corresponding sections of the Federal regulations. Differences between

the proposed State rules and the Federal regulations are

nonsubstantive.

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Federal regulation

Topic State regulation counterpart

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Contents of application for 310 IAC 12-1-7(a)... 30 CFR 702.12,

exemption. Introductory

sentence

Contents of application for 310 IAC 12-1- 30 CFR 702.12(o)(1)

exemption. 7(a)(15)(A).

Revocation and enforcement.. 310 IAC 12-1-11(b).. 30 CFR 702.17(b)

Revocation and enforcement.. 310 IAC 12-1- 30 CFR 702.17(c)(1)

11(c)(1) and (2). and (2)

Revocation and enforcement.. 310 IAC 12-1- 30 CFR 702.17(d)(1)

11(d)(1) through through (3)

(3).

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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. 310 IAC 12-1-7(17) Exemption for Coal Extraction Incidental to the

Extraction of Other Minerals; Contents of Application for Exemption.

Indiana proposed to delete subdivision (17), which requires that

information collected under the provision of section 12-1-7 be subject

to the public availability of information provisions in 310 IAC 12-3-

17. As discussed below in Finding No. 3, Indiana proposed to add a new

section at 310 IAC 12-1-7.1 that contains provisions pertaining to

public availability of information that are substantively identical to

the Federal regulations at 30 CFR 702.13. Therefore, the Director finds

that the removal of subdivision (17) will not render the Indiana rules

less effective than the Federal regulations.

3. 310 IAC 12-1-7.1 Exemption for Coal Extraction Incidental to the

Extraction of Other Minerals; Public Availability of Information

Indiana proposed to add new section 12-1-7.1 in response to OSM's

requirement at 30 CFR 914.16(cc) that Indiana amend its rules to make

it clear that information submitted under 310 IAC 12-1-7 must be held

until at least three years after expiration of the period during which

the subject mining area is active. Subsection (a) requires that except

as provided in subsection (c), all information submitted shall be made

immediately available for public inspection and copying and shall be

maintained until at least three years after expiration of the period

during which the subject mining area is active. Per Indiana's policy

statement dated July 11, 1997 (Administrative Record No. IND-1577), all

information submitted would be maintained in the Division of

Reclamation Field Office at Jasonville, Indiana, and it would be

available for inspection and copying by the public during regular

office hours. The Jasonville Field Office is located closest to all

surface mining activities conducted in the State of Indiana. Subsection

(b) allows Indiana to keep information submitted confidential if the

person submitting the information requests in writing, at the time of

submission, that it be kept confidential and demonstrates that the

information concerns trade secrets or is privileged commercial or

financial information of the persons intending to conduct operations.

Subsection (c) requires information requested to be held confidential

under subsection (b) not be made publicly available until after notice

and opportunity to be heard is afforded to persons both seeking and

opposing disclosure of the information.

The Director finds that Indiana's proposed rule along with its

policy statement is consistent with and no less effective than the

Federal regulations at 30 CFR 702.13 and that it satisfies the required

amendment at 30 CFR 914.16(cc). Therefore, the Director is approving

the proposed amendment at 310 IAC 12-1-7.1, and is amending 30 CFR

914.16 to remove paragraph (cc).

4. 310 IAC 12-1-11(c)(3) Exemption for Coal Extraction Incidental to

the Extraction of Other Minerals; Revocation and Enforcement

Indiana proposed to add new subdivision (c)(3) in response to OSM's

requirement at 30 CFR 914.16(dd) that Indiana amend 310 IAC 12-1-11 to

add a counterpart to 30 CFR 702.17(c)(3). Subdivision (c)(3) requires

that a petition for administrative review filed under subdivision

(c)(2) not suspend the effect of a decision on whether to revoke an

exemption.

The Director finds that Indiana's proposed rule is consistent with

and no less effective than the Federal regulation at 30 CFR

702.17(c)(3) and that it satisfies the required amendment at 30 CFR

914.16(dd). Therefore, the Director is approving the proposed amendment

at 310 IAC 12-1-11(c)(3), and is amending 30 CFR 914.16 to remove

paragraph (dd).

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-1567). On May 8, 1997 (Administrative Record No. IND-

1574, the Mine Safety and Health Administration responded without

comment.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is require 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-1567).

The EPA did not respond to OSM's request.

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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 the 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-1567). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Indiana on March 7, 1997, pertaining to

revisions to Indiana's rules relating to an exemption for coal

extraction incidental to the extraction of other minerals, and removes

the required amendments at 30 CFR 914.16(cc) and (dd).

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.

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.

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 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

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

OSM has determined and certifies pursuant to the Unfunded Mandates

Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a

cost of $100 million or more in any given year on local, state, or

tribal governments or private entities.

List of Subjects in 30 CFR Part 914

Intergovernmental relations. Surface mining, Underground mining.

Dated: August 20, 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 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 of final

date publication Citation/description

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* * * *

* * *

March 7, 1997................. September 8, 1997 310 IAC 12-1-7(a),

(15)(A), (17); 12-1-

7.1 (a) through (c);

12-1-11(b), (c) (1)

through (3), (d) (1)

through (3).

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Sec. 914.16 [Amended]

3. Section 914.16 is amended by removing and reserving paragraphs

(cc) and (dd).

[FR Doc. 97-23725 Filed 9-5-97; 8:45 am]

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