Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-136-FOR; Amendment No. 95-4]

Indiana Regulatory Program

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

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the

Indiana regulatory program (hereinafter the ``Indiana program'') under

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

proposed amendment consists of revisions to Indiana's regulation

pertaining to repair or compensation for material damage resulting from

subsidence caused by underground coal mining operations and to

replacement of water supplies adversely impacted by coal mining

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

be consistent with the corresponding Federal regulations.

DATES: Written comment must be received by 4:00 p.m., e.s.t., March 20,

1997. If requested, a public hearing on the proposed amendment will be

held on March 16, 1997. Requests to speak at the hearing must be

received by 4:00 p.m., e.s.t., on March 5, 1997.

ADDRESSES: Written comment and requests to speak at the hearing should

be mailed or hand delivered to Ronald F. Griffin, Acting Director,

Indianapolis Field Office, at the address listed below.

Copies of the Indiana program, the proposed amendment, a listing of

any scheduled public hearings, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

Friday, excluding holidays. Each requester may receive one free copy of

the proposed amendment by contacting OSM's Indianapolis Field Office.

Ronald F. Griffin, Acting 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.

Indiana Department of Natural Resources, 402 West Washington Street,

Room C256, Indianapolis, Indiana 46204, Telephone: (317) 232-1547.

FOR FURTHER INFORMATION CONTACT: Ronald F. Griffin, Acting Director,

Indianapolis Field Office, Telephone: (317) 226-6700.

SUPPLEMENTARY INFORMATION:

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. Description of the Proposed Amendment

By letter dated January 14, 1997 (Administrative Record No. IND-

1551), the Indiana Department of Natural Resources (IDNR) submitted to

proposed amendment to its program pursuant to SMCRA. Indiana submitted

the proposed amendment in response to a May 20, 1996, letter

(Administrative Record No. IND-1540) that OSM sent to Indiana in

accordance with 30 CFR 732.17(c). Indiana proposes to amend the

following regulations of the Indiana Administrative Code (IAC)

pertaining to repair or compensation for material damage resulting from

subsidence and to replacement of water supplies.

1. 310 IAC 12-0.5 Definitions

a. Indiana proposes to add a definition at 310 IAC 12-0.5-39.5 for

[[Page 7190]]

the term ``Drinking, domestic or residential water supply.''

b. Indiana proposes to add a definition at 310 IAC 12-0.5-72.1 for

the term ``Material damage.''

c. Indiana proposes to add a definition at 310 IAC 12-0.5-75.5 for

the term ``Non-commercial building.''

d. Indiana proposes to add a definition at 310 IAC 12-0.5-77.5 for

the term ``Occupied residential dwelling and structures related

thereto.''

e. Indiana proposes to add a definition at 310 IAC 12-0.5-107.5 for

the term ``Replacement of water supply.''

2. 310 IAC 12-3-81 Underground Mining Permit Applications; Reclamation

Plan; Protection of Hydrologic Balance

Indiana proposes to amend 310 IAC 12-3-81(c) by redesignating the

introductory paragraph as subsection (c)(1) and by adding new

subsection (c)(2). New subsection (c)(2) requires the PHC determination

to include findings on ``whether the underground mining activities may

result in contamination, diminution, or interruption of a well or

spring in existence at the time the permit application is submitted and

used for domestic, drinking,or residential purposes within the permit

or adjacent areas.'' Existing subsections (c)(1) through (c)(3) were

redesignated subsections (d)(1) through (d)(3), and existing

subsections (d) and (e) were redesignated subsections (e) and (f),

respectively.

3. 310 IAC 12-3-87.1 Underground Mining Permit Applications;

Reclamation Plan; Subsidence Control Plan

Indiana proposes extensive revisions to this section. The

substantive revisions are discussed below.

a. Subsections (a)(1) through (a)(3) require an application to

include a map, a narrative, and a pre-subsidence survey indicating the

location, type, and condition of structures and renewable resource

lands that subsidence may materially damage or diminish in value and of

drinking, domestic, and residential water supplies that subsidence may

contaminate, diminish, or interrupt. Subsection (a)(3) also requires

the applicant to notify property owners of the effect that denial of

access for purposes of conducting a pre-subsidence survey will have on

their rights, to pay for any technical assessment or engineering

evaluation needed, and to provide copies of the survey and any

technical assessment or engineering evaluation to the property owner

and the director of IDNR.

b. Subsection (b) contains revised requirements for a subsidence

control plan. A new introductory paragraph provides that no further

information need be provided in the application under this section if

the survey conducted under subsection (a) shows that no structures,

drinking, domestic, or residential water supplies, or renewable

resource lands exist or that no material damage or diminution in value

or reasonably foreseeable use of such structures or lands and no

contamination, diminution, or interruption of such water supplies would

occur as a result of mine subsidence. The director of IDNR must agree

with the conclusion of the survey. A subsidence control plan is

required if the survey identifies the existence of structures,

renewable resource lands, or water supplies and if subsidence could

cause material damage to the identified structures and renewable

resource lands diminution in value or foreseeable use, or

contamination, diminution, or interruption of the protected water

supplies.

c. Subsection (b)(7) requires a description of the methods that

will be taken to minimize damage to non-commercial buildings and

occupied residential dwellings and related structures; or a submittal

of the written consent of the owner of the structure or facility that

minimization measures need not be taken; or, unless the anticipated

damage would constitute a threat to health or safety, a demonstration

that the costs of minimizing damage to these structures or facilities

exceed the anticipated cost of repair for areas where planned

subsidence is projected.

d. Subsection (b)(8) requires a description of the measures to be

taken to replace adversely affected protected water supplies or to

mitigate or remedy any subsidence-related material damage to protected

land and structures.

4. 310 IAC 12-5-94 Underground Mining; Hydrologic Balance; Water

Rights and Replacement

Indiana proposes to revise 310 IAC 12-5-94 to require the permittee

to replace any drinking, domestic or residential water supply that is

contaminated, diminished or interrupted by underground mining

activities if the affected well or spring was in existence before the

date the director of IDNR received the permit application. The baseline

hydrologic information and geologic information concerning baseline

hydrologic conditions required in the permit application will be used

to determine the impact of mining activities upon water supply.

5. 310 IAC 12-5-130.1 Underground Mining; Subsidence Control; General

Requirements

Indiana proposes extensive revisions to this section. The

substantive revisions are discussed below.

a. Indiana proposes to revise subsection (a) by redesignating the

existing provisions (1)(A) and (1)(B) and by adding two new provisions.

Subsection (a)(2) provides that if planned subsidence is used, the

permittee must minimize material damage to noncommercial buildings and

occupied residential dwellings and related structures to the extent

technologically and economically feasible. Except this is not required

if he has the written consent of the owners or unless the anticipated

damage would constitute a threat to health or safety, the costs would

exceed the anticipated costs of repair. Subsection (a)(3) provides that

the standard method of room-and-pillar mining is not prohibited.

b. Indiana proposes to revise subsection (c)(2) by deleting the

existing language and adding new language. New subsection (c)(2)

requires the permittee to repair or compensate the owner for

subsidence-related material damage to non-commercial buildings or

occupied residential dwellings that existed at the time of mining. It

also specifies the responsibilities of the permittee under both the

repair and compensation options.

c. Indiana proposes to add new subsection (c)(3) to provide for

repair or compensation for subsidence-related material damage to

structures or facilities not protected by subdivision (2).

d. Indiana proposes to add new subsection (c)(4)(A) to provide that

if damage to non-commercial buildings or occupied residential dwellings

and related structures occurs as a result of earth movement within the

area determined by projecting a specified angle of draw from

underground mine workings to the surface, a rebuttable presumption

exists that the permittee caused the damage. The presumption will

normally apply to a 30-degree angle of draw. The director of IDNR may

apply the presumption to a different angle of draw under specified

circumstances.

e. Indiana proposes to add new subsection (c)(4)(B) to provide that

the permittee or permit applicant may request that the presumption

apply to a different site-specific angle of draw based on a site-

specific geotechnical

[[Page 7191]]

analysis of the potential surface impact of the mining operation that

demonstrates that the proposed angle of draw has a more reasonable

basis than the one established in the Indiana program.

f. Indiana proposes to add new subsection (c)(4)(C) to provide that

no rebuttable presumption will exist if the permittee is denied access

to the land or property for the purpose of conducting a pre-subsidence

survey.

g. Indiana proposes to add new subsection (c)(4)(D) to provide for

a rebuttal of presumption under specified circumstances.

h. Indiana proposes to add new subsection (c)(4)(E) to provide that

all relevant and reasonably available information will be considered in

determining whether damage to protected structures was caused by

subsidence.

i. Indiana proposes to add new subsection (c)(5) to require

additional performance bond if subsidence-related material damage to

protected land, structures, or facilities occurs and if contamination,

diminution, or interruption to water supplies occur. No additional bond

is required if repairs, compensation or replacement is completed within

90 days of the occurrence of damage. Indiana may extend the 90-day time

frame under specified circumstances.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Indiana program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Indianapolis Field Office

will not necessarily be considered in the final rulemaking or included

in the Administrative Record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

e.s.t., on March 5, 1997. The location and time of the hearing will be

arranged with those persons requesting the hearing. If no one requests

an opportunity to speak at the public hearing, the hearing will not be

held. Any disabled individual who has need for a special accommodation

to attend a public hearing should contact the individual listed under

FOR FURTHER INFORMATION CONTACT.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to speak have been heard. Persons in the audience who

have not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the audience who wish

to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the Administrative Record.

IV. 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

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.

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: February 6, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 97-3897 Filed 2-14-97; 8:45 am]

BILLING CODE 4310-05-M