[Federal Register Volume 60, Number 76 (Thursday, April 20, 1995)]
[Rules and Regulations]
[Pages 19669-19673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9775]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 914
[IN-112-FOR; Amendment 92-7C]
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, with exceptions, 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 is a continuation of an earlier program
amendment and consists of revisions to Indiana's Surface Coal Mining
and Reclamation Rules concerning the control of subsidence caused by
underground mining operations. The amendment is intended to revise the
Indiana program to be consistent with SMCRA and to incorporate State
initiatives.
EFFECTIVE DATE: April 20, 1995.
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 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 differs 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 in the April 22,
1994, Federal Register (59 FR 19155), [[Page 19670]] 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 May 23, 1994.
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. Nonsubstantive word changes
and paragraph notation changes also appear in the final adopted version
of amendment #92-7. However, only the substantive changes are discussed
below.
1. 310 IAC 12-3-87.1 Subsidence Control Plan
a. 310 IAC 12-3-87.1(c)(2). In the 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.
The currently proposed 310 IAC 12-3-87.1(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 substantially
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 response to Indiana's assertions, the Director notes the
following. On March 31, 1995 (60 FR 16722-16751), OSM amended the
Federal subsidence regulations at 30 CFR 784 to bring those regulations
into conformance with SMCRA at new section 720. Currently, neither
SMCRA at section 720 nor 30 CFR 784.20(b) provide for deference to
State law regarding the repair or compensation for material damage
resulting from subsidence due to underground coal mining operations.
However, Indiana State law at IC 13-4.1-9-2.5 provides a
counterpart to SMCRA section 720 from June 30, 1994, on.
On April 4, 1995 (60 FR 16985), the Director published an approval
of IC 13-4.1-9-2.5, Indiana's new law concerning subsidence control. In
that notice, the Director determined that IC 13-4.1-9-2.5 is
substantively identical to and no less stringent than SMCRA at new
section 720 with one exception. The Indiana law applies only to damage
that occurs after June 30, 1994. SMCRA at section 729(a) provides that
underground coal mining operations conducted after the date of
enactment of section 720 (October 24, 1992) shall comply with each of
the requirements of section 720. Therefore, the Director approved IC
13-4.1-9-2.5 to the extent that the Indiana law meets the requirements
of SMCRA section 720(a) from June 30, 1994.
In addition, the Director deferred decision on the enforcement of
the provisions of SMCRA section 720(a) 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). Pursuant to newly promulgated
30 CFR 843.25, OSM intends to publish by July 31, 1995, for each State
with a regulatory program, including Indiana, final rule notices
concerning the enforcement of the provisions of the Energy Policy Act
in those States.
Since, by letter dated March 18, 1994 (Administrative Record IND-
1340), Indiana interpreted ``state law'' as used in 310 IACV 12-3-87.1
to mean the provisions found at IC 13-4.1-9-2.5, the Director finds
that this provision is no less effective than 30 CFR 784.20(b) 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. The
Director is deferring 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 IC 13-4.1-9-2.5 (June 30, 1994).
b. 310 IAC 12-3-87.1(c)(7). In the second sentence of this
subdivision, Indiana is deleting the word ``operator'' and adding in
its place the word ``permittee.'' With this change, the permittee is
required to include required information in the permit application. The
word ``permittee'' is the appropriate word to use in this section on
permit application requirements. The Director finds the change to be
consistent with and no less effective than the Federal regulations at
30 CFR 784.20 concerning subsidence control plan.
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 its submittal of this final adopted language, Indiana provided
an explanation why the language which defers to State law was retained.
Indiana [[Page 19671]] 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 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.
As discussed in Finding 1 above, the new Indiana law at IC 13-4.1-
9-2.5 is substantially identical to and no less stringent than SMCRA at
section 720 except to the extent that the Indiana law applies only to
damage that occurs after June 30, 1994. SMCRA at section 720(a)
provides for such repair or compensation by underground coal mining
operations conducted after the date of enactment of section 720
(October 24, 1992). Since, by letter dated March 18, 1994
(Administrative Record No. IND-1340), Indiana interpreted ``state law''
as used in 310 IAC 12-5-130.1(c)(2), to mean the provisions found at IC
13-4.1-9-2.5, the Director finds that this provision is no less
effective than 30 CFR 817.121(a)(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. The Director is deferring
decision 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 IC 13-4.1-9-2.5
(June 30, 1994).
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 INDR 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
INDR 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 INDR
shall also suspend underground mining activities whenever required or
authorized by IC 13-4.1-11-5 concerning cessation orders. The Director
finds that these changes are consistent with and no less effective than
the Federal regulations at 30 CFR 817.121(f).
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. The
Director finds that the amendments are not inconsistent with and are no
less effective than the counterpart Federal regulations at 30 CFR
817.121(g) which provide that the operator shall submit a detailed plan
of the underground workings.
5. Repealed Provisions
Indiana proposes to repeal 310 IAC 12-3-87, 310 IAC 12-5-130, 310
IAC 12-5-131, and IAC 12-5-132. The provisions are proposed for repeal
because they are replaced by 310 IAC 12-3-87.1, 310 IAC 12-5-130.1, and
10 IAC 12-5-131.1.
The Director is approving the repeal of 310 IAC 12-3-87, 310 IAC
12-5-130, and 310 IAC 12-5-131 because such repeal does not render the
Indiana program less effective than the Federal regulations. The
director is deferring decision on the repeal of 310 IAC 12-5-132 until
July 31, 1995, when OSM will address 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 IC 13-4.1-9-2.5 (June 30, 1994).
IV. Summary and Disposition of Comments
Federal Agency Comments
Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i),
comments were solicited from various interested Federal agencies. The
U.S. Department of Agriculture, Soil Conservation Service (SCS)
commented on the amendment (Administrative Record Number IND-1345). The
SCS stated that the SCS determined that the changes will not impact SCS
programs differently from the existing rules.
Public Comments
The public comment period and opportunity to request a public
hearing was announced in the April 22, 1994, Federal Register (59 FR
19155). The comment period closed on May 23, 1994. No one requested an
opportunity to testify at the scheduled public hearing so no hearing
was held.
Ms. Freida K. Harris commented that OSM should not approve the
proposed amendments because the amendments contain language which OSM
has previously not approved. Specifically, the commenter is referring
to Indiana's deference to State law at 310 IAC 12-3-87.1(c)(2)(B)(ii)
and 310 IAC 12-5-130.1(c)(2).
As discussed above in Findings 1 and 2, the Director did not fully
approve the previously-proposed language at 310 IAC 12-3-87.1(c)(2) and
310 IAC 12-5-130.1(c)(2) to the extent that the proposed language
deferred to State law to correct subsidence related material damage.
Since the time of that final rule notice, however, Indiana amended its
statutes by adding IC 13-4.1-9-2.5 as a counterpart to the new SMCRA
provision at section 720 concerning subsidence liability. Upon review
of Indiana's new subsidence statute, the Director determined that the
subsidence statute is no less stringent than SMCRA at section 720 to
the extent that Indiana's statue meets the requirements of SMCRA
section 720 from June 30, 1994. As discussed in Findings 1 and 2 above,
the Director is deferring, until July 31, 1995, decision concerning the
enforcement of the provisions of the Energy Policy Act in Indiana
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). In
the March 31, 1995, approval of the Federal subsidence regulations (60
FR 16722-16751) OSM stated that it will publish proposed notices and
open public comment periods to seek comment on information submitted by
States with approved regulatory programs, including Indiana, concerning
enforcement of the Energy Policy Act provisions in those States. The
public comment period for Indiana closes on May 8, 1995.
Mr. R. Gehres commented on the proposed changes at 310 IAC 12-5-
130.1(h). Specifically, the commenter objected to the removal of the
term ``registered'' as it appeared before the words ``professional
engineer,'' and to the addition of a ``registered land surveyor'' to
the language describing who must prepare the required maps of
[[Page 19672]] underground workings. In response, the Director notes
that the counterpart Federal regulations at 30 CFR 817.121(g), while
requiring the submittal of a detailed plan of the underground workings
do not specify the credentials of individuals who may prepare those
plans. Therefore, Indiana's amendments at 310 IAC 12-5-130.1(h) do not
render the Indiana language less effective than 30 CFR 817.121(g).
Amoco Pipeline Company and Tennico Gas, Inc., pipeline operators,
commented that the proposed amendments provide inadequate protection to
pipelines from unplanned subsidence. The proposed wording is
unnecessarily restrictive without justification the commenter stated.
In response, the Director notes that the proposed Indiana language
is patterned after the Federal regulations at 30 CFR 817.121 concerning
subsidence control, and SMCRA at section 720 concerning repair or
compensation of subsidence damage. On March 31, 1995 (60 FR 16722-
16751), OSM published subsidence regulations that are intended to
implement the new provisions at SMCRA section 720. In that notice, OSM
noted that Congress directed OSM to review existing Federal, State, and
local laws, as well as common law related to underground coal mine
subsidence and natural gas and petroleum pipeline safety. Since that
mandated review and report are not finished, OSM believes that it would
be premature to revise existing law at this time.
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 that 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
responded by letter dated June 21, 1994 (Administrative Record Number
IND-1373). In that letter, the EPA concurred without comment.
V. Director's Decision
Based on the findings above, the Director is approving, except as
noted below, Indiana's program amendment concerning subsidence as
submitted by Indiana on March 18, 1994. 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 propose 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. The Director is deferring decision on
the enforcement of the provisions of SMCRA section 720 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 5, the Director is deferring decision on 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. 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.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In his
oversight of the Indiana program, the Director will recognize only the
statutes, regulations and other materials approved by him, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by Indiana of only such
provisions.
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.
[[Page 19673]] Dated: April 14, 1995.
Tim L. Dieringer,
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 Sec. 914.15, paragraph (iii) is added to read as follows:
Sec. 914.15 Approval of regulatory program amendments.
* * * * *
(iii) The following amendment to the Indiana program concerning
underground mine subsidence as submitted to OSM on March 18, 1994, is
approved, except as noted herein, effective April 20, 1995: 310 IAC 12-
3-87.1(c)(2) concerning subsidence control plan, to the extent that IC
13-4.1-9-2.5 meets the requirements of SMCRA section 720 from June 30,
1994. The Director is deferring decision on the enforcement of the
provisions of SMCRA section 720 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); 310 IAC 12-3-87.1(c)(7) concerning
subsidence control plan; 310 IAC 12-5-130.1(c)(2) concerning subsidence
control plan, general requirements, to the extent that IC 13-4.1-9-2.5
meets the requirements of SMCRA section 720 from June 30, 1994. The
Director is deferring decision on the enforcement of the provisions of
SMCRA section 720 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); 310 IAC 12-5-130.1(g) concerning suspension of
underground mining; 310 IAC 12-5-130.1(h) concerning detailed report of
underground workings; the repeal of 310 IAC 12-3-87, 310 IAC 12-5-130,
and 310 IAC 12-5-131; decision on the repeal of 310 IAC 12-5-132 is
deferred.
[FR Doc. 95-9775 Filed 4-19-95; 8:45 am]
BILLING CODE 4310-05-M
