[Federal Register Volume 59, Number 143 (Wednesday, July 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18200]


[[Page Unknown]]

[Federal Register: July 27, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

 

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 permanent 
regulatory program (hereinafter referred to as the Indiana program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The amendment consists of revisions to Indiana's Surface Coal Mining 
and Reclamation Statutes concerning an exemption for operations 
conducted under IC 13-4.1 (Indiana SMCRA) from the need for a 
``construction in a floodway'' permit issued by the Indiana Department 
of Natural Resources (IDNR), Division of Water. The amendment is 
intended to consolidate and streamline Indiana's permit system by 
implementing statutory changes contained in the 1993 Senate Enrolled 
ACT (SEA) 179.

effective date: July 27, 1994.

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, IN 46204, Telephone (317) 226-6166.

supplementary information:
I. Background on the Indiana Program.
II. Submission of the 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 Indiana program was made effective by the 
conditional approval of the Secretary of the Interior. Information 
pertinent to the general background on the Indiana program, including 
the Secretary's findings, the disposition of comments, and a detailed 
explanation of the conditions of approval of the Indiana program can be 
found in the July 26, 1982 Federal Register (47 FR 32107). Subsequent 
actions concerning the conditions of approval and program amendments 
are identified at 30 CFR 914.10, 914.15, and 914.16.

II. Submission of the Amendment

    By letter dated October 1, 1993 (Administrative Record Number IND-
1325), the IDNR submitted a proposed amendment to the Indiana program 
concerning statutes enacted by Indiana under SEA 179 from the 1993 
Indiana Legislative Session. SEA 179 contains numerous amendments to 
the Indiana statutes, but only those which pertain to the Indiana 
program are discussed below.
    OSM announced receipt of the proposed amendment in the May 5, 1994, 
Federal Register (59 FR 23176), and, in the same notice, opened the 
public comment period and provided opportunity for a public hearing on 
the adequacy of the proposed amendment. The comment period closed on 
June 6, 1994. On May 26, 1994 (59 FR 27251), OSM corrected a 
typographical error in the May 5, 1994, proposed rule announcement.

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 to the Indiana program.

IC 13-4.1-4  Permit Approval or Denial

    Indiana has amended subsection IC 13-4.1-4-3(a) concerning the 
findings required to be made by the director of the IDNR prior to 
issuing a permit. New subdivision 3(a)(10) is added to provide as 
follows:
    (10) if any part of the operation would take place in a floodway 
(as defined in IC 13-2-22-3), the operation will not:
    (A) result in unreasonably detrimental effects upon the fish, 
wildlife, or botanical resources;
    (B) adversely affect the efficiency; or
    (C) unduly restrict the capacity of the floodway.
    In its submittal of this amendment, Indiana explained that the 
proposed language quoted above is being added to the Indiana program as 
a consequence of an amendment to IC 13-2-22-13. New subdivision 
13(e)(3) is added to IC 13-2-22-13 to provide that operations conducted 
under IC 13-4.1 (Indiana SMCRA) are exempted from the need for a 
``construction in a floodway'' permit issued by the IDNR, Division of 
Water. Instead, any activity in a floodway which is to be conducted as 
part of an operation regulated under IC 13-4.1 must be identified in 
the permit application to the Division of Reclamation. A determination 
must then be made by the Division of Reclamation that the environmental 
standards identified in the proposed language are met. This 
determination will then become part of the ``Findings Document'' which 
accompanies each of the Division's final permit recommendations.
    There is no direct Federal counterpart in SMCRA or the Federal 
regulations to the proposed amendment. As explained by Indiana in its 
submittal of this amendment, the purpose of this legislative change is 
to consolidate and streamline the permit system as well as strengthen 
the technical review of the floodway permit work. Indiana further 
explained that any disturbance on a mine site is part of a much larger 
effort already being reviewed by the Division of Reclamation. Further, 
Indiana asserts that this change allows for a more thorough evaluation 
of the work when taken in context with the overall plan of operation.
    The Director finds that the proposed amendments are not 
inconsistent with SMCRA and the Federal regulations. None of the 
existing Indiana program provisions are rendered less effective by the 
inclusion of the proposed provisions in the Indiana program. On the 
contrary, all of the approved provisions of the Indiana program remain 
in full effect. Further, the proposed provisions are not inconsistent 
with SMCRA sections 503 concerning State programs, and 505 concerning 
State laws. Therefore, the Director is approving the amendment.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and 3 CFR 732.17(h)(11)(i), 
comments were solicited from various interested Federal agencies. The 
U.S. Fish and Wildlife Service (FWS) commented on the amendment 
(Administrative Record Number IND-1378). The FWS stated that if the 
review of impacts to ``fish, wildlife, and botanical resources'' 
continues to be administered by the IDNR's Division of Fish and 
Wildlife, or other trained fish and wildlife biologists, the FWS 
assumes that the level of protection of fish and wildlife resources 
would not be changed from the current situation. As discussed above in 
the Director's Findings, Indiana explained in its submittal that the 
proposed amendment should strengthen the technical review of the 
floodway permit work since the review will become part of a much larger 
effort already being conducted by the Division of Reclamation. The 
change, Indiana asserts, will allow for a more thorough evaluation of 
the construction on a floodway. In his review of this amendment, the 
Director has concluded that none of the existing Indiana program 
provisions are rendered less effective by the inclusion of the proposed 
provisions in the Indiana program.
    The FWS further stated that the FWS does not anticipate any impacts 
to Federally endangered/threatened species as a result of the proposed 
revision. The Director concurs.

Public Comments

    The public comment period and opportunity to request a public 
hearing was announced in the May 5, 1994, Federal Register (59 FR 
23176). The comment period closed on June 6, 1994. No one requested an 
opportunity to testify at the scheduled public hearing so no hearing 
was held. No public comments were received in response to this 
amendment.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the EPA with respect to 
any provisions of a State 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.). The Director has determined that this amendment contains no 
provisions in these categories and the EPA's concurrence is not 
required.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (Administrative Record No. IND-1221). EPA 
did not respond to OSM's request.

V. Director's Decision

    Based on the findings above, the Director is approving Indiana's 
program amendment concerning construction in a floodway as submitted by 
Indiana on October 1, 1993. 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 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: July 20, 1994.
Patricia P. Acker,
Acting Assistant Director, Eastern Support 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. In Section 914.15, paragraph (bbb) is added to read as follows:
Sec. 914.15  Approval of regulatory program amendments

* * * * *
    (bbb) The following amendment to the Indiana program concerning 
construction in a floodway as submitted to OSM on October 1, 1993, is 
approved effective July 27, 1994: 310 IAC 13-4.1-4-3(a)(10) concerning 
required findings on construction in a floodway.

[FR Doc. 94-18200 Filed 7-26-94; 8:45 am]
BILLING CODE 4310-05-M