[Federal Register Volume 59, Number 78 (Friday, April 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9827]


[[Page Unknown]]

[Federal Register: April 22, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

 

Indiana Regulatory Program Amendment

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

ACTION: Proposed rule.

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SUMMARY: OSM is announcing receipt of the final State-adopted language 
of an amendment to the Indiana regulatory program (hereinafter referred 
to as the ``Indiana program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The amendment (#92-7) consists of 
revisions to the Indiana rules concerning underground mine subsidence. 
OSM is opening the public comment period on amendment #92-7 because 
Indiana's final adopted language of this amendment differs from the 
language of #92-7 was approved by OSM on May 17, 1993 (58 FR 28775). 
The amendment is intended to revise the Indiana program to be 
consistent with SMCRA and to incorporate State initiatives.

DATES: Written comments must be received by 4 p.m. e.s.t. May 23, 1994. 
If requested, a public hearing on the proposed amendment will be held 
on May 17, 1994. Requests to speak at the hearing must be received by 4 
p.m., e.s.t. on May 9, 1994. Any disabled individual who has been for a 
special accommodation to attend a public hearing should contact the 
individual listed under FOR FURTHER INFORMATION CONTACT.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to Roger W. Calhoun, Director, Indianapolis 
Field Office at the first 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.

Roger W. Calhoun, Director, Indianapolis Field Office, Office of 
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal 
Building, Room 301, Indianapolis, Indiana 46204, Telephone: (317) 226-
6166
Indiana Department of Natural Resources, 402 West Washington Street, 
room C256, Indianapolis, Indiana 46204, Telephone: (317) 232-1574

FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director, 
Indianapolis Field Office, Telephone: (317) 226-6166.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program
II. Discussion of the Proposed Amendment
III. Public Comment Procedures
IV. 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 32071). Subsequent actions concerning the 
conditions of approval and program amendments can be found at 30 CFR 
914.10, 914.15, and 914.16.

II. Discussion of the Proposed Amendment

    By letter dated December 2, 1992 (Administrative Record No. IND-
1175), the Indiana Department of Natural Resources (INDR) 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 differs in some ways 
from the language approved by OSM on May 17, 1993. Therefore, OSM is 
announcing a public comment period and inviting comment on the 
substantive differences identified below.

1. 310 IAC 12-3-87.1(c)(2)  Subsidence Control Plan

    In May 17, 1993, Federal Register notice which approved most of 
Indiana amendment #92-7 concerning subsidence, the Director did not 
fully approve the proposed language at subsection 87.1(c)(2). The 
language at subsection 87.1(c)(2) was approved except to the extent the 
provision defers to State law to correct subsidence related material 
damage.
    On October 24, 1992, SMCRA was amended by the addition of new 
section 720 concerning subsidence. New section 720 provides that 
underground coal mining operations shall promptly repair, or compensate 
for, material damage resulting from subsidence caused to any occupied 
residential dwelling and structures related thereto, or noncommercial 
building due to underground coal mining operations. The new SMCRA 
provision does not provide for deference to State law regarding the 
repair or compensation for material damage resulting from subsidence 
due to underground coal mining operations. Therefore, in the May 17, 
1993, Federal Register notice, the Director found the proposed language 
at 310 IAC 12-3-87.1(c)(2) less effective than the counterpart Federal 
regulations at 30 CFR 784.20(b) to the extent that the language affords 
a lesser degree of protection to occupied residential dwellings, 
related structures, and noncommercial buildings than SMCRA as revised.
    Currently proposed subsection 87.1(c)(2) provides that the 
subsidence control plan must contain a map of underground workings 
which includes all areas where the measures described in subdivisions 
(4) and (5) will be taken ``where appropriate under State law'' to 
correct subsidence related material damage. The quoted language, 
``where appropriate under state law'' is identical to the language 
which OSM did not approve in the May 17, 1993, Federal Register notice.
    In its submittal of this final adopted language, Indiana provided 
two reasons for its retention of the language quoted above. First, 
Indiana asserts that the language quoted above is substantively 
identical to the counterpart Federal regulations at 30 CFR 784.20(b). 
Second, Indiana asserts that a newly enacted statute, IC 13-4.1-9-2.5, 
which was included in Senate Enrolled Act No. 408 and signed into 
Indiana law on March 11, 1994, codifies the October 24, 1992, changes 
made to Federal SMCRA at section 720. Specifically, Indiana asserts 
that because Indiana law (IC 13-4.1-9-2.5) requires the correction of 
material subsidence damage to the same degree as amended SMCRA at 
section 720, the current regulation's (310 IAC 12-3-87.1(c)(2)(B)(ii)) 
reference to Indiana law is no longer less effective than the 
requirements of the Federal program.
    In its March 18, 1994, submittal of the notice of final adoption of 
the subsidence rules contained in amendment #92-7, Indiana provided a 
copy of the final language of the newly enacted subsidence statute at 
IC 13-4.1-9-2.5 as contained in SEA 408. This information, as well as a 
copy of OSM's May 17, 1993, approval (with exceptions) of amendment 
#92-7 will be available for public review along with the final adopted 
language.

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

    In the final adopted language at subsection 130.1(c)(2), language 
appears which is identical to language which OSM did not approve in the 
May 17, 1993, Federal Register notice. Specifically, the language at 
subsection 130.1(c)(2) provides for the repair or compensation of 
damage caused by subsidence ``[t]o the extent required under Indiana 
law.'' In the May 17, 1993, notice at Finding #2, OSM did not approve 
the language which reads ``[t]o the extent required under Indiana 
law.''
    OSM did not approve the Indiana deference to State law because it 
afforded a lesser degree of protection to occupied residential 
dwellings, related structures, and noncommercial buildings than section 
720 of SMCRA. See Finding 1, above, for a discussion of section 720 of 
SMCRA.
    In the May 17, 1993, Federal Register notice (Finding 2) OSM 
acknowledged that new section 720 of SMCRA supersedes, in part, 30 CFR 
817.121(c)(2). 30 CFR 817.121(c)(2) contains language deferring to 
State law. Specifically, 30 CFR 817.121(c)(2) is superseded to the 
extent that it is inconsistent with SMCRA section 720 which does not 
provide for deference to State law regarding repair or compensation of 
subsidence caused material damage.
    In its submittal of this final adopted language, Indiana provided 
an explanation why the language which defers to State law was retained. 
Indiana stated (also see Finding 1, above) that new Indiana law IC 13-
4.1-9-2.5 requires the correction of material subsidence damage to the 
same degree as amend SMCRA at section 720. Therefore, Indiana asserts, 
the language at 310 IAC 12-5-130.1(c)(2) which defers to State law is 
no longer less effective than the requirements of the Federal program.

3. 310 IAC 12-5-130.1(g)  Suspension of Underground Mining

    Indiana added language to this provision after the provision was 
approved by OSM on May 17, 1993. At subdivision 130.1(g)(2) the words 
``under or'' are added. With the added language, the provision provides 
that the director of IDNR shall suspend underground mining activities 
under or adjacent to industrial or commercial buildings, pipelines, 
major impoundments, or perennial streams.
    In addition, the words ``under any other location'' are added in 
new subdivision 130.1(g)(3). With this new language, the director of 
IDNR shall suspend underground mining activities under any other 
location if imminent danger is found to inhabitants of urbanized areas, 
cities, towns, or communities ``or whenever required or authorized by 
IC 13-4.1-11-5.''
    The quoted language immediately above identifies the third revision 
to subsection 130.1(g). With this new language, the director of IDNR 
shall also suspend underground mining activities whenever required or 
authorized by IC 13-4.1-11-5 concerning cessation orders.

4. 310 IAC 12-5-130.1(h)  Detailed Report of Underground Workings

    The changes in this subsection are related to the preparation and 
certification of the required map of underground workings. 
Specifically, Indiana has deleted the word ``registered'' immediately 
preceding the words ``professional engineer.'' Also, the words ``or 
registered land surveyor'' are added following the words ``professional 
engineer.'' With these changes, the required map of underground 
workings shall be prepared by, or under the direction of, and certified 
by a qualified professional engineer or registered land surveyor with 
assistance from experts in related fields such as land surveying.
    Other nonsubstantive word changes and paragraph notations also 
appear in the final adopted version of amendment #92-7.

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 p.m., e.s.t. 
on May 9, 1994. The location and time of the hearing will be arranged 
with those persons requesting the hearing. If no one requests an 
opportunity to testify at the public hearing, the hearing will not be 
held.
    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 in advance 
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 proposed rule is exempted from review by the Office of 
Management and Budget (OMB) under Executive Order 12866 (Regulatory 
Planning and Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (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.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 14, 1994.
Robert J. Biggi,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 94-9827 Filed 4-21-94; 8:45 am]
BILLING CODE 4310-05-M