[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
