[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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