02-30608. Iowa Abandoned Mine Land Reclamation Plan

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving an amendment to the Iowa abandoned mine land reclamation plan (Iowa plan) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The Iowa Department of Agriculture and Land Stewardship, Division of Soil Conservation (DSC) proposed to assume responsibility of the abandoned mine land reclamation (AMLR) emergency program in Iowa. DSC also proposed to revise the Iowa plan to be consistent with the corresponding Federal regulations and to update other portions of its plan to reflect its current practices. In addition, we are including Iowa's proposal to revise its statute at Iowa Code (IC), Chapter 207.

EFFECTIVE DATE:

December 5, 2002.

FOR FURTHER INFORMATION CONTACT:

John W. Coleman, Mid-Continent Regional Coordinating Center. Telephone: [phone]. Internet: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Iowa Plan

II. Submission of the Amendment

III. OSM's Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Iowa Plan

The Abandoned Mine Land Reclamation Program was established by Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian Tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On the basis of these criteria, the Secretary of the Interior approved the Iowa plan on March 28, 1983. You can find background information on the Iowa plan, including the Secretary's findings, the disposition of comments, and the approval of the plan in the March 28, 1983, Federal Register (48 FR 12711). You can find later actions concerning the Iowa plan and amendments to the plan at 30 CFR 915.25.

II. Submission of the Amendment

By letter dated June 14, 2002 (Administrative Record No. AML-IA-44), Iowa sent us a proposed amendment to its AMLR plan under SMCRA (30 U.S.C. 1201 et seq.). Iowa sent the amendment at its own initiative and in response to a letter dated September 26, 1994 (Administrative Record No. AML-IA-39), that we sent to Iowa in accordance with 30 CFR 884.15(d). Iowa intended to demonstrate its capability to effectively undertake the AMLR emergency program on behalf of OSM. Iowa also intended to revise the Iowa plan to be consistent with the corresponding Federal regulations and to update other portions of its plan to reflect its current practices. In addition, we are including the revisions Iowa made to its statute at Iowa Code, Chapter 207.

We announced receipt of the proposed amendment in the August 13, 2002, Federal Register (67 FR 52659). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on September 12, 2002. We received comments from one Federal agency and one State agency.

III. OSM's Findings

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are approving the amendment. Any revisions that we do not discuss below concern nonsubstantive wording changes or editorial changes or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

A. AMLR Emergency Program Demonstration

Section 410 of SMCRA authorizes the Secretary to use funds under the AMLR program to abate or control emergency situations in which adverse effects of past coal mining pose an immediate danger to the public health, safety, or general welfare. In a Federal Register notice dated September 29, 1982 (47 FR 42729), we invited states to amend their AMLR plans for the purpose of undertaking emergency reclamation programs on our behalf and published guidelines outlining three requirements for State assumption of the AMLR emergency program. For us to grant emergency authority to the State agency, the agency must demonstrate that it has the following: (1) statutory authority to undertake emergencies, (2) technical capability to design and supervise the emergency work, and (3) administrative mechanisms to respond quickly to emergencies either directly or through contractors.

1. Statutory Authority

The DSC has had statutory authority under IC section 207.21 to administer an emergency response program since approval of the Iowa plan on March 28, 1983. In order to implement this authority, Iowa's regulations at Iowa Administrative Code (IAC) 27-50.70 and 27-50.90 provide for right of entry on any land where an emergency exists. In a letter dated November 17, 1982, the Governor of Iowa designated the Iowa Department of Soil Conservation as the State agency responsible for the AMLR Program in Iowa. The Iowa chief legal officer issued an official opinion on November 24, 1982, that the Iowa Department of Soil Conservation is authorized under State law to establish, administer, and conduct a State reclamation program in accordance with the requirements of Title IV of the Federal Surface Mining Control and Reclamation Act of 1977, the regulations promulgated thereunder, and the State Reclamation Plan. Title IV of SMCRA covers both the regular AMLR program and the emergency reclamation program. A State government reorganization in 1986 transferred the same authorities to the Division of Soil Conservation in the Iowa Department of Agriculture and Land Stewardship.

2. Technical Capability

The DSC has demonstrated through past performance that it has the technical capability to implement an AMLR emergency program. In its June 14, 2002, submission of the amendment, Iowa submitted the following statement to demonstrate the DSC's technical capability to design and supervise the emergency work.

DSC has operated a successful AML reclamation program for nearly 20 years. We have completed numerous mine shaft closure projects under that program and have been assisting OSM in its abatement of AML subsidence emergencies since 1995. We have a geotechnical engineer on staff who is familiar with emergency project design practices and we have the ability to prepare project design plans, specifications and contract documents in-house. The DSC staff can also provide in-house project inspection services since emergency projects are normally of short duration. Based on the past experience of the AML Program and the current capabilities of our staff, the Division is seeking authority to assume responsibility for the day-to-day administration of the AML emergency program in Iowa.

Iowa has conducted an AMLR program since 1983. We have found that the Iowa AMLR program is run in a cost efficient and professional manner. Iowa has conducted project design and construction work with a high degree of competence and success. Projects are thoroughly analyzed and conducted in compliance with all National Environmental Policy Act (NEPA) requirements. Construction monitoring, post-construction monitoring, and maintenance processes ensure the projects meet contract specifications, project objectives, and program goals. Over the past few years, Iowa has designed and inspected AMLR emergency projects for us. Technical capabilities used for these emergency reclamation projects are the same as those used for normal, high priority reclamation projects. As of the end of evaluation year 2001, Iowa has reclaimed 55,010 feet of dangerous highwalls, 813 acres of dangerous spoil piles and embankments, 3 dangerous impoundments, 22 hazardous water bodies, 13 vertical openings, 7 miles of sediment-clogged streams, and 610 acres of mine land contributing to flooding problems. These are the same types of abandoned mine land features that Iowa will likely encounter in the AMLR emergency program. We have found that Iowa has developed and refined the in-house investigation, design, and project administration abilities necessary to administer an AMLR program and an AMLR emergency response program.

3. Administrative Mechanisms

During a review of Iowa's revised purchasing and procurement procedures at section 884.13(d)(3), we found that the DSC has the authority to issue contracts for emergency work. For contracts not exceeding $25,000, the contracting method will either be sole-sourced or based on selective solicitation of bids depending upon the severity of the emergency and its locality. For contracts exceeding $25,000, the public notice and competitive bidding requirements of IC Chapter 73A will be followed. These contracting methods are similar to those for Federal agencies and will allow Iowa adequate flexibility to address emergency conditions. Other administrative processes required to implement the emergency program are the same as those already in place for the Iowa AMLR program.

In accordance with section 405 of SMCRA and 30 CFR 884.15, Iowa has submitted an amendment to its AMLR plan, and we have determined, pursuant to 30 CFR 884.14, the following:

1. The public has been given adequate notice and opportunity to comment, and the record does not reflect major unresolved controversies.

2. Views of other Federal agencies have been solicited and considered.

3. The State has the legal authority, policies and administrative structure necessary to implement the amendment.

4. The proposed plan amendment meets all requirements of the Federal AMLR program regulations at 30 CFR Chapter VII, Subchapter R.

5. The State has an approved State Regulatory Program.

6. The amendment is in compliance with all applicable State and Federal laws and regulations.

Therefore, we find that the proposed Iowa plan amendment allowing the State to assume responsibility for an AMLR emergency response reclamation program on our behalf is in compliance with SMCRA and meets the requirements of the Federal regulations, and we are approving Iowa's assumption of the AMLR emergency program.

B. Revisions to Iowa's AMLR Plan

Iowa updated its AMLR plan to (1) ensure that it has the administrative mechanisms to quickly respond to AMLR emergencies either directly or through contractors and (2) reflect current state practices. The following table lists the sections of the AMLR plan that Iowa revised.

Plan section	Topic
I. 30 CFR 884.13(a)	A designation by the Governor of the state agency authorized to administer the state reclamation program and to receive and administer grants under 30 CFR part 886.
II. 30 CFR 884.13(b)	A legal opinion from the State Attorney General or the chief legal officer of the state agency that the designated agency has the authority under state law to conduct the program in accordance with the requirements of Title IV of the Act.
III. Policies and procedures for the state abandoned mine land reclamation program (30 CFR 884.13(c))	A description of the policies and procedures to be followed by the designated state agency in conducting the reclamation program.
IV. Administrative and Management Structure (30 CFR 884.13(d))	A description of the administrative and management structure to be used in conducting the reclamation program.
V. General Description of AML Reclamation (30 CFR 884.13(e)(2)-(e)(3))	A general description, derived from available data, of the reclamation activities to be conducted under the state reclamation plan.

We find that the requirements of the revised Iowa AMLR plan meet the requirements of the Federal regulations at 30 CFR 884.13(a) through (e). Therefore we are approving them.

C. Revisions to Iowa's AMLR Statutes

Iowa proposed to amend the following sections in its statute at Iowa Code (IC), Chapter 207.

1. Iowa's statutes listed in the table below contain language that is the same as or similar to the corresponding sections of the Federal statutes.

Topic	State statute	Federal counterpart statute
Priority order for the expenditure of moneys from the AMLR Fund on eligible lands and water	IC 207.21 subsection 3	Section 403(a) of SMCRA.
Liens	IC 207.23	Section 408 of SMCRA.
Powers and Authority	IC 207.29	Section 413(a) of SMCRA.

Because the above State statutes contain language that is the same as or similar to the corresponding Federal statutes, we find that they are no less stringent than SMCRA. Therefore, we are approving them.

2. IC 207.21 Abandoned Mine Reclamation Program

Iowa proposed to revise IC 207.21 by adding subsections 2.a.(2) through 2.b. to read as follows:

(2) Coal lands and water damaged by coal mining processes and abandoned after August 3, 1977, if they were mined for coal or affected by coal mining processes and if either of the following occurred:

(a) The mining occurred and the site was left in either an unreclaimed or inadequately reclaimed condition between August 4, 1977, and April 10, 1981, and any moneys for reclamation or abatement that are available pursuant to a bond or other form of financial guarantee or from any other source are not sufficient to provide for adequate reclamation or abatement at the site.

(b) The mining occurred and the site was left in either an unreclaimed or inadequately reclaimed condition between August 4, 1977, and November 5, 1990, and the surety of the mining operator became insolvent during that period and, as of November 5, 1990, moneys immediately available from proceedings relating to the insolvency or from any financial guarantee or other source are not sufficient to provide for adequate reclamation or abatement at the site.

b. If requested by the governor, the division may fill voids and seal tunnels, shafts, and entryways resulting from any previous noncoal mining operation and may reclaim surface impacts of any such noncoal underground or surface mines that were mined prior to August 3, 1977, and which constitute an extreme danger to the public health, safety, general welfare, or property. Sites and areas designated for remedial action pursuant to the Federal Uranium Mill Tailings Radiation Control Act of 1978, 42 U.S.C. 7901 et seq., or which have been listed for remedial action pursuant to the Federal Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. 7901 et seq., are not eligible for expenditures under this section.

The counterpart Federal provisions are found at sections 402(g)(4)(A) through (B)(ii) and 409(a) of SMCRA, and 30 CFR 875.16. Iowa's proposed provisions have the same meaning as the counterpart Federal provisions except that at IC 207.21 subsection 2.a.(2)(a), sites must have been left in either an unreclaimed or inadequately reclaimed condition between August 4, 1977, and April 10, 1981. The counterpart Federal provisions for IC 207.21 subsection 2.a.(2)(a) are found at section 402(g)(4)(B)(i) of SMCRA and provide that sites must have been left in either an unreclaimed or inadequately reclaimed condition beginning on August 4, 1977, and ending on or before the date on which the Secretary approved the State's program. Because the dates in Iowa's provision fall within the dates of the Federal provision and because the remaining proposed provisions have the same meaning as their counterpart Federal provisions, we are approving the above revisions to Iowa's program.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment, but did not receive any.

Federal Agency Comments

On June 19, 2002, under 30 CFR 884.14(a)(2) and 884.15(a), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Iowa plan (Administrative Record No. AML-IA-44.01). We received a letter dated July 22, 2002, from the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) stating that it had no concerns over Iowa's proposed amendment (Administrative Record No. AML-IA-44.02).

State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)

Under 30 CFR 884.14(a)(6), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 19, 2002, we requested comments on Iowa's amendment (Administrative Record No. AML-IA-44.01). The ACHP did not respond to our request. The State Historical Society of Iowa (SHSOI) responded on July 8, 2002 (Administrative Record No. AML-IA-44.04) that the creation, amendment, and promulgation of the proposed administrative policies and procedures are not activities that would result in effects to historic properties, but that actions carried out thereunder may have the potential to cause effects. The SHSOI then stated that Part D [30 CFR 884.13(c)(3)] of Iowa's proposed AML Reclamation Plan stipulates pre-consultation and coordination with other State, Federal, and local entities, including the Iowa SHPO, that may have an interest in any proposed work and that it found this to be consistent with the procedures for consultations that are outlined in the ACHP's Protection of Historic Properties Final Rule (36 CFR Part 800). Further, the SHSOI stated that it had no objections to the amendment and no further comments. We agree that Part D [30 CFR 884.13(c)(3)] of Iowa's proposed AML Reclamation Plan regarding coordination of reclamation work is consistent with the procedures for consultations that are outlined in the ACHP's Protection of Historic Properties Final Rule (36 CFR Part 800). This final rule requires a review to determine the effect on historic properties of Federal or federally assisted undertakings such as emergency abatement projects.

V. OSM's Decision

Based on the above findings, we approve the amendment as submitted by Iowa on June 14, 2002. We approve the AMLR plan and statutes proposed by Iowa with the provision that they be fully promulgated in identical form to the plan and statutes submitted to and reviewed by us and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR part 915, which codify decisions concerning the Iowa program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 405(d) of SMCRA requires that the state have a program that is in compliance with the procedures, guidelines, and requirements established under the Act. Making this rule effective immediately will expedite that process.

VI. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 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 and Tribal abandoned mine land reclamation plans and plan amendments because each plan is drafted and promulgated by a specific State or Tribe, not by OSM. Decisions on proposed abandoned mine land reclamation plans and plan amendments submitted by a State or Tribe are based solely on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR part 884 of the Federal regulations.

Executive Order 13132—Federalism

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of abandoned mine reclamation programs. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 405(d) of SMCRA requires State abandoned mine reclamation programs to be in compliance with the procedures, guidelines, and requirements established under SMCRA.

Executive Order 13211—Regulations That Significantly Affect The Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because agency decisions on proposed State and Tribal abandoned mine land reclamation plans and plan amendments are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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 certifies 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. 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.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 915

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: November 12, 2002.

Jeffrey D. Jarrett,

Director, Office of Surface Mining Reclamation and Enforcement.

For the reasons set out in the preamble, 30 CFR Part 915 is amended as set forth below:

PART 915—IOWA

1. The authority citation for Part 915 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 915.25 is added to read as follows:

§ 915.25

Approval of Iowa abandoned mine land reclamation plan amendments.

The following is a list of the dates amendments were submitted to OSM, the dates when the Director's decision approving all or portions of these amendments were published in the Federal Register, and the State citations or a brief description of each amendment. The amendments in this table are listed in the order of the date of final publication in the Federal Register.

Original amendment submission date	Date of final publication	Citation/description
June 14, 2002	December 5, 2002	Emergency response reclamation program; AMLR Plan sections I. through IV., V.B. and C.; Iowa Code (IC) 207.21 subsection 2.a.(2) through 2.b. and subsection 3.d.; 207.23; and 207.29.