[Federal Register Volume 61, Number 103 (Tuesday, May 28, 1996)]
[Rules and Regulations]
[Pages 26442-26445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13264]



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[[Page 26443]]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-112-FOR; Amendment No. 92-7C]


Indiana Regulatory Program

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

ACTION: Final rule; clarification/approval of amendment.

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SUMMARY: OSM is clarifying the previous approval, and noted deferrals 
therein, of an 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 
consisted of revisions to Indiana's Surface Coal Mining and Reclamation 
Rules concerning the control of subsidence caused by underground mining 
operations. The amendment was submitted to revise the Indiana program 
to be consistent with SMCRA and to incorporate State initiatives.

EFFECTIVE DATE: May 28, 1996.

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, 
Indiana 46204-1521, Telephone (317) 226-6166.

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 December 2, 1992 (Administrative Record No. IND-
1175), the Indiana Department of Natural Resources (IDNR) 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 differed in some ways 
from the language approved by OSM on May 17, 1993. Therefore, OSM 
reopened the public comment period and invited comment on the 
substantive differences.
    OSM announced receipt of the proposed amendment (i.e., the adopted 
language of #92-7) in the April 22, 1994, Federal Register (59 FR 
19155), and in the same document opened the public comment period and 
provided opportunity for a public hearing on the adequacy of the 
proposed amendment. The comment period closed on May 23, 1994.
    On April 20, 1995, OSM approved the amendment with deferrals on 
decisions in three areas until July 31, 1995, when OSM was to address 
the enforcement of SMCRA section 720 and 30 CFR 784.20 and 817.121 (60 
FR 19669). The deferrals related to the above enforcement provisions 
during the period from the effective date of SMCRA section 720 (October 
24, 1992) to the effective date of the corresponding Indiana statute IC 
13-4.1-9-2.5 (June 30, 1994).
    On July 28, 1995, OSM announced its decision on initial enforcement 
of underground coal mine subsidence control and water replacement 
requirements in Indiana (60 FR 38680). After consultation with Indiana 
and consideration of public comments, OSM decided that initial 
enforcement in Indiana would be accomplished through joint Indiana and 
OSM enforcement. OSM, however, did not specifically address the 
deferrals of the April 20, 1995, approval (60 FR 19669).

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 
deferrals contained in the original approval of the proposed amendment 
(60 FR 19669). These findings are based on the original proposed 
amendment and the April 20, 1995, approval and deferrals related to the 
enforcement scheme as published on July 28, 1995. It should be noted 
that the July 28, 1995, decision addressed only the initial enforcement 
schemes for water replacement (30 CFR 817.41(j)) and subsidence damage 
repair/compensation (30 CFR 817.121(c)(2)) provided for under section 
720 of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 
as amended by the Energy Policy Act of 1992, Pub. L. 102-486, 106 Stat. 
2776(1992). In addition to the basic water supply replacement 
requirement and the related subsidence damage repair requirement, the 
implementing Federal regulations that became effective March 31, 1995, 
contain other related supporting and permitting provisions. OSM 
anticipates that these other requirements will become effective in the 
same way as other revisions to the permanent program regulations; i.e., 
in primacy states such as Indiana, upon adoption of counterpart State 
regulatory program provisions (60 FR 16722). This process will be 
initiated separately by OSM under the provisions of 30 CFR 732.17(d)).

1. 310 IAC 12-3-87.1  Subsidence Control Plan

    310 IAC 12-3-87.1(c)(2). In the April 20, 1995, Federal Register, 
the Director approved the language at subsection 87.1(c)(2) to the 
extent that it met the requirements of SMCRA section 720 and 30 CFR 
784.20 from June 30, 1994. However, the Director deferred a decision 
until July 31, 1995, on the enforcement of the provisions of SMCRA 
section 720 and 30 CFR 784.20 during the period from the effective date 
of SMCRA section 720 (October 24, 1992) to the effective date of the 
corresponding Indiana statute IC 13-4.1-9-2.5 (June 30, 1994).
    On July 28, 1995, OSM announced its decision on initial enforcement 
of underground coal mine subsidence control and water replacement 
requirements in Indiana (60 FR 38680). After consultation with Indiana 
and consideration of public comments, OSM decided that initial 
enforcement in Indiana would be accomplished through joint Indiana and 
OSM enforcement. In discussions leading to this decision, Indiana 
indicated that Indiana law at IC 13-4.1-9-2.5 incorporates the 
substantive language of section 620 of SMCRA and applies to underground 
mining operations conducted after June 30, 1994. For underground mining 
operations conducted in Indiana in the interim period between October 
24, 1992 (the effective date of the Energy Policy Act of 1992 and SMCRA 
section 720), and June 30, 1994 (the effective

[[Page 26444]]

date of Indiana law counterpart to the Energy Policy Act of 1992), the 
State concluded that the existing Indiana program provisions provide 
the IDNR with sufficient authority to impose the requirements of the 
Energy Policy Act of 1992 with respect to underground mining operations 
conducted in Indiana during the interim period. The State concluded, 
however, that although it believes that the IDNR has sufficient 
authority to impose the requirements of the Energy Policy Act of 1992 
during the interim period, joint State and OSM enforcement in Indiana 
should be the chosen enforcement scheme in Indiana, as it would assure 
protection for the citizens of Indiana during the interim period 
(Administrative Record Number IND-1494). Under this scheme, the IDNR 
would enforce the requirements of the Energy Policy Act of 1992 in 
Indiana from June 30,1994, and during the interim period to the extent 
permissible under Indiana law. OSM would enforce the requirements of 
the Energy Policy Act of 1992 in the interim period only if a situation 
arose where the State could not so enforce.
    Based on the discussion above, the Director finds that 310 IAC 12-
3-87.1(c)(2) is no less effective than 30 CFR 784.20 and no less 
stringent than SMCRA section 720, to the extent that IC 13-4.1-9-2.5 
meets the requirements of SMCRA section 720 and 30 CFR 784.20 from June 
30, 1994, and the enforcement scheme approved July 28, 1995, meets the 
requirements of SMCRA section 720 and 30 CFR 784.20 during the period 
from the effective date of SMCRA section 720 (October 24, 1992) to the 
effective date of IC 13-4.1-9-2.5 (June 30, 1994).

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

    310 IAC 12-5-130.1(c)(2). In the April 20,1995, Federal Register, 
the Director approved the language at subsection 130.1(c)(2) to the 
extent that it met the requirements of SMCRA section 720 from June 30, 
1994. However, the Director deferred a decision until July 31, 1995, on 
the enforcement of the provisions of SMCRA section 720 and 30 CFR 
817.121 during the period from the effective date of SMCRA section 720 
(October 24, 1992) to the effective date of the corresponding Indiana 
statute IC 13-4.1-9-2.5 (June 30, 1994).
    As discussed in Finding 1 above, on July 28, 1995, OSM announced 
its decision on initial enforcement of underground coal mine subsidence 
control and water replacement requirements in Indiana (60 FR 38680). 
OSM decided that initial enforcement would be accomplished through 
joint Indiana and OSM enforcement. The IDNR would enforce the 
requirements of the Energy Policy Act of 1992 in Indiana from June 30, 
1994, and during the interim period (October 24, 1992-June 30, 1994) to 
the extent permissible under Indiana law. OSM would enforce the 
requirements of the Energy Policy Act of 1992 in the interim period 
only if a situation arose where the State could not so enforce.
    Based on the above discussion, the Director finds that 310 IAC 12-
5-130.1(c)(2) is no less effective than 30 CFR 817.121(c)(2) and no 
less stringent than SMCRA section 720, to the extent that IC 13-4.1-9-
2.5 meets the requirements of SMCRA section 720 from June 30, 1994, and 
the enforcement scheme approved July 28, 1995, meets the requirements 
of SMCRA section 720 and 30 CFR 817.121(c)(2) during the period from 
the effective date of SMCRA section 720 (October 24, 1992) to the 
effective date of IC 13-4.1-9-2.5 (June 30, 1994).

3. Repeal of 310 IAC 12-5-132

    Indiana proposed the repeal of 310 IAC 12-3-87, 310 IAC 12-5-130, 
310 IAC 12-5-131, and 310 IAC 12-5-132 because the provisions were 
replaced by 310 IAC 12-3-87.1, 310 IAC 12-5-130.1, and 310 IAC 12-5-
131.1. The Director deferred decision on the repeal of 310 IAC 12-5-132 
until July 31, 1995, when OSM was to address the enforcement of the 
provisions of SMCRA section 720 and 30 CFR 784.20 and 817.121 during 
the period from the effective date of SMCRA section 720 (October 24, 
1992) to the effective date of IC 13-4.1-9-2.5 (June 30, 1994).
    As discussed in Findings 1 and 2 above, on July 28, 1995, OSM 
announced its decision on initial enforcement of underground coal mine 
subsidence control and water replacement requirements in Indiana (60 FR 
38680), finding that initial enforcement would be accomplished through 
joint Indiana and OSM enforcement. IDNR would enforce the requirements 
of the Energy Policy Act of 1992 in Indiana from June 30, 1994, and 
during the interim period (October 24, 1992-June 30, 1994) to the 
extent permissible under Indiana law. OSM would enforce the 
requirements of the Energy Policy Act of 1992 in the interim period 
only if a situation arose where the State would not so enforce.
    Based on the above discussion, the Director is approving the repeal 
of 310 IAC 12-5-132 because appropriate provisions are replaced by 310 
IAC 12-3-87.1 and 310 IAC 12-5-130.1 and the repeal does not render the 
Indiana program less effective than the counterpart Federal 
requirements to the extent that IC 13-4.1-9-2.5 meets the requirements 
of SMCRA section 720 from June 30, 1994, and the enforcement scheme 
approved July 28, 1995, meets the requirements of SMCRA section 720 and 
30 CFR 784.20 and 817.121(c)(2) during the period from the effective 
date of SMCRA section 720 (October 24, 1992) to the effective date of 
IC 13-4.1-9-2.5 (June 30, 1994).

IV. Summary and Disposition of Comments

    Comments on the initial submittal were solicited from Federal 
agencies and the public on January 14, 1993 (58 FR 4372), and on the 
adopted language of the approved changes on April 22, 1994 (59 FR 
19155). Comments received were discussed in the related Federal 
Registers of May 17, 1993 (58 FR 28775), and April 20, 1995 (60 FR 
19669), respectively. As this current action is based on language of 
the previous submittals, the solicitation of additional comments is not 
necessary; refer to the Federal Registers identified above for the 
discussion of comments received.

V. Director's Decision

    Based on the findings above, the Director is approving the three 
provisions of Indiana's program amendment concerning subsidence, as 
originally submitted by Indiana on March 18, 1994, and for which the 
decisions were deferred in the April 20, 1995, Federal Register (60 FR 
19669). As discussed above in Finding 1 concerning 310 IAC 12-3-
87.1(c)(2) and Finding 2 concerning 310 IAC 12-5-130.1(c)(2), the 
Director is approving the proposed deference to State law to the extent 
that IC 13-4.1-9-2.5 meets the requirements of SMCRA section 720 from 
June 30, 1994, and the enforcement scheme approved July 28, 1995, meets 
the requirements of SMCRA section 720 and 30 CFR 784.20 and 
817.121(c)(2) during the period from the effective date of SMCRA 
section 720 (October 24, 1992) to the effective date of IC 13-4.1-9-2.5 
(June 30, 1994). As discussed in Finding 3, the Director is also 
approving the repeal of 310 IAC 12-5-132.
    The Federal regulations at 30 CFR Part 914, codifying decisions 
concerning the Indiana program, are being amended to implement this 
decision.

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).

[[Page 26445]]

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 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 8, 1996.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating 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. Section 914.15 is amended by adding paragraph (qqq) to read as 
follows:


Sec. 914.15  Approval of regulatory program amendments.

* * * * *
    (qqq) The revised provisions at 310 IAC 12-3-87.1(c)(2) and 310 IAC 
12-5-130.1(c)(2) and the repeal of 310 IAC 12-5-132 contained in 
Indiana's program amendment concerning subsidence, as originally 
submitted by Indiana on March 18, 1994, and for which the decisions 
were deferred on April 20, 1995, are approved effective May 28, 1996.

[FR Doc. 96-13264 Filed 5-24-96; 8:45 am]
BILLING CODE 4310-05-M