[Federal Register Volume 62, Number 32 (Tuesday, February 18, 1997)]
[Proposed Rules]
[Pages 7189-7191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3897]


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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-136-FOR; Amendment No. 95-4]


Indiana Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the 
Indiana regulatory program (hereinafter the ``Indiana program'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 
proposed amendment consists of revisions to Indiana's regulation 
pertaining to repair or compensation for material damage resulting from 
subsidence caused by underground coal mining operations and to 
replacement of water supplies adversely impacted by coal mining 
operations. The amendment is intended to revise the Indiana program to 
be consistent with the corresponding Federal regulations.

DATES: Written comment must be received by 4:00 p.m., e.s.t., March 20, 
1997. If requested, a public hearing on the proposed amendment will be 
held on March 16, 1997. Requests to speak at the hearing must be 
received by 4:00 p.m., e.s.t., on March 5, 1997.

ADDRESSES: Written comment and requests to speak at the hearing should 
be mailed or hand delivered to Ronald F. Griffin, Acting Director, 
Indianapolis Field Office, at the 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.

Ronald F. Griffin, Acting 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) 226-6700.
Indiana Department of Natural Resources, 402 West Washington Street, 
Room C256, Indianapolis, Indiana 46204, Telephone: (317) 232-1547.

FOR FURTHER INFORMATION CONTACT: Ronald F. Griffin, Acting Director, 
Indianapolis Field Office, Telephone: (317) 226-6700.

SUPPLEMENTARY INFORMATION:

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. Description of the Proposed Amendment

    By letter dated January 14, 1997 (Administrative Record No. IND-
1551), the Indiana Department of Natural Resources (IDNR) submitted to 
proposed amendment to its program pursuant to SMCRA. Indiana submitted 
the proposed amendment in response to a May 20, 1996, letter 
(Administrative Record No. IND-1540) that OSM sent to Indiana in 
accordance with 30 CFR 732.17(c). Indiana proposes to amend the 
following regulations of the Indiana Administrative Code (IAC) 
pertaining to repair or compensation for material damage resulting from 
subsidence and to replacement of water supplies.

1. 310 IAC 12-0.5  Definitions

    a. Indiana proposes to add a definition at 310 IAC 12-0.5-39.5 for

[[Page 7190]]

the term ``Drinking, domestic or residential water supply.''
    b. Indiana proposes to add a definition at 310 IAC 12-0.5-72.1 for 
the term ``Material damage.''
    c. Indiana proposes to add a definition at 310 IAC 12-0.5-75.5 for 
the term ``Non-commercial building.''
    d. Indiana proposes to add a definition at 310 IAC 12-0.5-77.5 for 
the term ``Occupied residential dwelling and structures related 
thereto.''
    e. Indiana proposes to add a definition at 310 IAC 12-0.5-107.5 for 
the term ``Replacement of water supply.''

2. 310 IAC 12-3-81  Underground Mining Permit Applications; Reclamation 
Plan; Protection of Hydrologic Balance

    Indiana proposes to amend 310 IAC 12-3-81(c) by redesignating the 
introductory paragraph as subsection (c)(1) and by adding new 
subsection (c)(2). New subsection (c)(2) requires the PHC determination 
to include findings on ``whether the underground mining activities may 
result in contamination, diminution, or interruption of a well or 
spring in existence at the time the permit application is submitted and 
used for domestic, drinking,or residential purposes within the permit 
or adjacent areas.'' Existing subsections (c)(1) through (c)(3) were 
redesignated subsections (d)(1) through (d)(3), and existing 
subsections (d) and (e) were redesignated subsections (e) and (f), 
respectively.

3. 310 IAC 12-3-87.1  Underground Mining Permit Applications; 
Reclamation Plan; Subsidence Control Plan

    Indiana proposes extensive revisions to this section. The 
substantive revisions are discussed below.
    a. Subsections (a)(1) through (a)(3) require an application to 
include a map, a narrative, and a pre-subsidence survey indicating the 
location, type, and condition of structures and renewable resource 
lands that subsidence may materially damage or diminish in value and of 
drinking, domestic, and residential water supplies that subsidence may 
contaminate, diminish, or interrupt. Subsection (a)(3) also requires 
the applicant to notify property owners of the effect that denial of 
access for purposes of conducting a pre-subsidence survey will have on 
their rights, to pay for any technical assessment or engineering 
evaluation needed, and to provide copies of the survey and any 
technical assessment or engineering evaluation to the property owner 
and the director of IDNR.
    b. Subsection (b) contains revised requirements for a subsidence 
control plan. A new introductory paragraph provides that no further 
information need be provided in the application under this section if 
the survey conducted under subsection (a) shows that no structures, 
drinking, domestic, or residential water supplies, or renewable 
resource lands exist or that no material damage or diminution in value 
or reasonably foreseeable use of such structures or lands and no 
contamination, diminution, or interruption of such water supplies would 
occur as a result of mine subsidence. The director of IDNR must agree 
with the conclusion of the survey. A subsidence control plan is 
required if the survey identifies the existence of structures, 
renewable resource lands, or water supplies and if subsidence could 
cause material damage to the identified structures and renewable 
resource lands diminution in value or foreseeable use, or 
contamination, diminution, or interruption of the protected water 
supplies.
    c. Subsection (b)(7) requires a description of the methods that 
will be taken to minimize damage to non-commercial buildings and 
occupied residential dwellings and related structures; or a submittal 
of the written consent of the owner of the structure or facility that 
minimization measures need not be taken; or, unless the anticipated 
damage would constitute a threat to health or safety, a demonstration 
that the costs of minimizing damage to these structures or facilities 
exceed the anticipated cost of repair for areas where planned 
subsidence is projected.
    d. Subsection (b)(8) requires a description of the measures to be 
taken to replace adversely affected protected water supplies or to 
mitigate or remedy any subsidence-related material damage to protected 
land and structures.

4. 310 IAC 12-5-94  Underground Mining; Hydrologic Balance; Water 
Rights and Replacement

    Indiana proposes to revise 310 IAC 12-5-94 to require the permittee 
to replace any drinking, domestic or residential water supply that is 
contaminated, diminished or interrupted by underground mining 
activities if the affected well or spring was in existence before the 
date the director of IDNR received the permit application. The baseline 
hydrologic information and geologic information concerning baseline 
hydrologic conditions required in the permit application will be used 
to determine the impact of mining activities upon water supply.

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

    Indiana proposes extensive revisions to this section. The 
substantive revisions are discussed below.
    a. Indiana proposes to revise subsection (a) by redesignating the 
existing provisions (1)(A) and (1)(B) and by adding two new provisions. 
Subsection (a)(2) provides that if planned subsidence is used, the 
permittee must minimize material damage to noncommercial buildings and 
occupied residential dwellings and related structures to the extent 
technologically and economically feasible. Except this is not required 
if he has the written consent of the owners or unless the anticipated 
damage would constitute a threat to health or safety, the costs would 
exceed the anticipated costs of repair. Subsection (a)(3) provides that 
the standard method of room-and-pillar mining is not prohibited.
    b. Indiana proposes to revise subsection (c)(2) by deleting the 
existing language and adding new language. New subsection (c)(2) 
requires the permittee to repair or compensate the owner for 
subsidence-related material damage to non-commercial buildings or 
occupied residential dwellings that existed at the time of mining. It 
also specifies the responsibilities of the permittee under both the 
repair and compensation options.
    c. Indiana proposes to add new subsection (c)(3) to provide for 
repair or compensation for subsidence-related material damage to 
structures or facilities not protected by subdivision (2).
    d. Indiana proposes to add new subsection (c)(4)(A) to provide that 
if damage to non-commercial buildings or occupied residential dwellings 
and related structures occurs as a result of earth movement within the 
area determined by projecting a specified angle of draw from 
underground mine workings to the surface, a rebuttable presumption 
exists that the permittee caused the damage. The presumption will 
normally apply to a 30-degree angle of draw. The director of IDNR may 
apply the presumption to a different angle of draw under specified 
circumstances.
    e. Indiana proposes to add new subsection (c)(4)(B) to provide that 
the permittee or permit applicant may request that the presumption 
apply to a different site-specific angle of draw based on a site-
specific geotechnical

[[Page 7191]]

analysis of the potential surface impact of the mining operation that 
demonstrates that the proposed angle of draw has a more reasonable 
basis than the one established in the Indiana program.
    f. Indiana proposes to add new subsection (c)(4)(C) to provide that 
no rebuttable presumption will exist if the permittee is denied access 
to the land or property for the purpose of conducting a pre-subsidence 
survey.
    g. Indiana proposes to add new subsection (c)(4)(D) to provide for 
a rebuttal of presumption under specified circumstances.
    h. Indiana proposes to add new subsection (c)(4)(E) to provide that 
all relevant and reasonably available information will be considered in 
determining whether damage to protected structures was caused by 
subsidence.
    i. Indiana proposes to add new subsection (c)(5) to require 
additional performance bond if subsidence-related material damage to 
protected land, structures, or facilities occurs and if contamination, 
diminution, or interruption to water supplies occur. No additional bond 
is required if repairs, compensation or replacement is completed within 
90 days of the occurrence of damage. Indiana may extend the 90-day time 
frame under specified circumstances.

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 4:00 p.m., 
e.s.t., on March 5, 1997. The location and time of the hearing will be 
arranged with those persons requesting the hearing. If no one requests 
an opportunity to speak at the public hearing, the hearing will not be 
held. Any disabled individual who has need for a special accommodation 
to attend a public hearing should contact the individual listed under 
FOR FURTHER INFORMATION CONTACT.
    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 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 rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

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 
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.

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 Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 6, 1997.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 97-3897 Filed 2-14-97; 8:45 am]
BILLING CODE 4310-05-M