[Federal Register Volume 59, Number 26 (Tuesday, February 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2729]
[[Page Unknown]]
[Federal Register: February 8, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 915
Iowa Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: OSM is announcing the approval of a program amendment
submitted by Iowa as a modification to the State's permanent regulatory
program (hereinafter, referred to as the ``Iowa program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
amendment pertains to exemptions for coal extraction incidental to the
extraction of other minerals, restriction of financial interests of
State employees, exemption of coal extraction incident to government-
financed highway or other construction, protection of employees,
initial regulatory program, areas unsuitable, permits for operations
and exploration, small operator assistance, bonding and insurance,
permanent program performance standards, inspection and enforcement,
blaster certification, and contested cases and public hearings. The
amendment is intended to revise the State program to be consistent with
the corresponding Federal standards, clarify ambiguities, and improve
operational efficiency.
EFFECTIVE DATE: February 8, 1994.
FOR FURTHER INFORMATION CONTACT: Jerry R. Ennis, Telephone: (816) 374-
6405.
SUPPLEMENTARY INFORMATION:
I. Background on the Iowa Program
On January 21, 1981, the Secretary of Interior conditionally
approved the Iowa program. General background information on the Iowa
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval of the Iowa program can be
found in the January 21, 1981, Federal Register (46 FR 5885).
Subsequent actions concerning Iowa's program and program amendments can
be found at 30 CFR 915.15 and 915.16.
II. Submission of Amendment
From October 1, 1983, to December 20, 1989, a number of changes
were made to Federal regulations concerning surface coal mining and
reclamation operations. During this time period, pursuant to Federal
regulations at 30 CFR 732.17, OSM notified Iowa in four separate 732
letters dated December 12, 1988, (Administrative Record No. IA-336);
May 11, 1989, (Administrative Record No. IA-340); November 28, 1989,
(Administrative Record No. IA-347); and February 7, 1990,
(Administrative Record IA-349), that the State rules must be amended to
be consistent with the revised Federal regulations.
By letter dated November 23, 1992 (Administrative Record No. IA-
372), Iowa submitted a proposed amendment to its program pursuant to
SMCRA. Iowa submitted the proposed amendment with the intent of
satisfying the outstanding 732 notifications from OSM and the required
program amendments OSM placed on its program in a November 6, 1991,
rulemaking action (56 FR 56578) at 30 CFR 915.16(a) of the Federal
regulations.
OSM announced receipt of the proposed amendment in the January 14,
1993, Federal Register (58 FR 4376) 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 public comment period ended
on February 16, 1993. The public hearing scheduled for February 8,
1993, was not held because no one requested an opportunity to testify.
During its review of the amendment, OSM identified concerns related
to Iowa Administrative Code (IAC) 27-40.1(3), General; 27-40.3(207),
General; IAC 27-40.4(10), Full water year; IAC 27-40.21(207), Areas
designated by an Act of Congress; IAC 27-40.31(207), Requirements for
permits and permit processing; IAC 27-40.32(207), Revision, renewal,
and transfer, assignment, or sale of permit rights; IAC 27-40.34,
Permit application--minimum requirements for legal, financial,
compliance, and related information; IAC 27-40.39(1), Requirements for
permits for special categories of mining; IAC 27-40.61(1), Permanent
program performance standards--general provisions; IAC 27-40.63,
Permanent program performance standards--surface mining activities; IAC
27-40.67, Permanent program performance standards--coal preparation
plants not located within the permit area of a mine; IAC 27-40.73(2)g,
Enforcement; IAC 27-40.74, Civil penalties; and IAC 27-40.75,
Individual civil penalties. OSM notified Iowa of the concerns by letter
dated May 10, 1993 (Administrative Record No. IA-381).
Iowa responded in a letter dated July 8, 1993 (Administrative
Record No. IA-383), by submitting revised language for the proposed
amendment to address the concerns raised by OSM. On July 21, 1993, OSM
published a notice in the Federal Register (58 FR 38991) announcing
receipt of revised language for the proposed amendment and inviting
public comment on its adequacy. The public comment period ended August
5, 1993. By letters dated August 20, 1993 (Administrative Record No.
IA-388), and August 30, 1993 (Administrative Record No. IA-389), Iowa
provided OSM with additional information to clarify and correct three
editorial errors. These clarifications are discussed in the appropriate
findings to follow.
III. Director's Findings
1. Provisions Not Discussed
Iowa proposes revisions to its rules that involve minor editorial
and word changes, and recodification. Iowa also proposes to revise its
current incorporation by reference of OSM's regulations from those in
effect as of July 1, 1987, to those in effect as of July 1, 1992.
The Director finds that these proposed revisions, unless
specifically discussed below, are no less effective than the Federal
regulations and is approving them.
2. Provisions Not Discussed That Are Substantively the Same as the
Counterpart Federal Regulations
Iowa proposes revisions to rules that contain language that is the
same or similar to the counterpart Federal regulations, replace Federal
references and terms with appropriate State references and terms, or
add specificity without adversely affecting other aspects of the
program regulation. The Director, therefore, finds that these proposed
revisions to Iowa's regulations are no less effective in meeting
SMCRA's requirements than the Federal regulations. These revisions are
as follows (Federal regulation counterparts are indicated in brackets):
IAC 27-40.4(207) and 40.4(6), concerning the permanent regulatory
program and the exemption for coal extraction incidental to the
extraction of other minerals [30 CFR Part 702]; IAC 27-40.4(7)(f)(2),
concerning the impact of a request for administrative review by persons
adversely affected on an exemption determination [30 CFR 702.11(f)(2)];
IAC 27-40.4(8)(3), concerning the impact of a petition for
administrative review on a decision to revoke an exemption [30 CFR
702.17(c)(3)]; IAC 27-40.31(15), concerning a permittee's right to
appeal for administrative review [30 CFR 773.21(c)]; IAC 27-40.33(1)
and (2), concerning general content requirements for permit
applications [30 CFR 777.11(a)(3) and 777.14(a)]; IAC 27-40.35(1) and
(3), Vegetation information and land use [30 CFR 779.19(a) and (b)];
IAC 27-40.35(9), Climatological information [30 CFR 779.18]; IAC 27-
40.35(13), Identification of public roads [30 CFR 779.24(h)]; IAC 27-
40.51(5), concerning soil productivity levels required for release of
performance bonds on prime farmlands [30 CFR 800.40(c)(2)]; IAC 27-
40.73(2)g, concerning notification of owners and controllers of a
permit upon issuance of a cessation order [30 CFR 843.11(g)]; IAC 27-
40.74(6), concerning procedures to prepare a request for a hearing on a
violation [30 CFR 845.19]; IAC 27-40.74(7), concerning procedures for
determining final assessment of a violation [30 CFR 845.20]; and IAC
27-40.75(3), concerning final order and opportunity for review of a
penalty assessment [30 CFR 846.17(b)(1)].
3. Iowa Code Chapter 207
In the letter dated July 8, 1993 (Administrative Record No. IA-
383), submitting revised language for the proposed amendment in
response to OSM concerns, Iowa notified OSM that the Iowa Code has been
reorganized in an attempt to achieve more logical groupings by agency
and function in the Code. Therefore, Iowa Code chapter 83 is now Iowa
Code chapter 207. Iowa indicated that no substantive changes were made
to the statute. All references to Iowa Code chapter 83 in the Iowa
Administrative Code have been revised to read Iowa Code chapter 207.
OSM approves the recodification based upon its understanding that no
substantive changes were made to the statute.
4. Provisions Adopting Suspended Federal Regulations
Iowa proposes to adopt by reference several Federal regulations or
portions thereof that are suspended. In its cover letter dated July 8,
1993, Iowa indicated it's intention to adopt the suspension rule
announcements located at the end of the sub-Parts to the Federal
regulations as published in the Code of Federal Regulations.
Accordingly, the Director considers any proposed Iowa rule adopting a
suspended Federal regulation noted in the 30 CFR as of July 1, 1992, to
also be suspended in the State program. Therefore, the Director finds
that with this clarification, these proposed State rules are no less
effective than the Federal counterpart regulations and is approving
them. The following is a list of the proposed Iowa rules adopting
suspended Federal regulations as noted in the July 1, 1992, 30 CFR and
the Federal Register notices that explain the Federal suspensions.
a. At IAC 27-40.3(207), Iowa incorporates 30 CFR 700.11,
Applicability, and the suspension notice that suspends paragraph (b) of
that section insofar as it excepts from the applicability of 30 CFR
chapter VII:
(1) Any surface coal mining operations commencing on or after June
6, 1987; and
(2) Any surface coal mining operations conducted on or after
November 8, 1987 (52 FR 21228, 21229, June 4, 1987).
b. At IAC 27-40.4(207), Iowa incorporates the definition and
suspension notice for ``affected area'' at 30 CFR 701.5, Definitions
(51 FR 41952, 41960, November 20, 1986).
c. At IAC 27-40.12(207), Iowa incorporates 30 CFR 715.17,
Protection of the hydrologic system, and the suspension notice that
suspends paragraph (a)(1) of that section insofar as it applies to
total suspended solids (TSS) discharges (44 FR 77447, 77451, December
31, 1979).
d. At IAC 27-40.21(207), Iowa incorporates the definition of the
term ``significant recreational, timber, economic, or other values
incompatible with surface coal mining operations'' at 30 CFR 761.5,
Definitions, and the suspension notice relating to the definition
insofar as the listed values are evaluated for compatibility solely in
terms of reclaimability (51 FR 41952, 41960, November 20, 1986).
e. At IAC 27-40.21(207), Iowa incorporates 30 CFR 761.11, area
where mining is prohibited or limited, and the suspension notice that
suspends 30 CFR 761.11(h) (51 FR 41952, 41961, November 20, 1986).
f. At IAC 27-40.35(207), Iowa incorporates 30 CFR 779.21, soils
resources information, and the suspension notice that suspends 30 CFR
779.21 to the extent that it requires soils survey information for
lands not qualifying as prime farmland (45 FR 51547, 51548, August 4,
1980).
g. At IAC 27-40.37(207), Iowa incorporates 30 CFR 783.21, soils
resources information, and the suspension notice that suspends 30 CFR
783.21 to the extent that it requires soils survey information for
lands not qualifying as prime farmland (45 FR 51547, 51548, August 4,
1980).
h. At IAC 27-40.63(207), Iowa incorporates 30 CFR 816.46,
hydrologic balance: siltation structures, and the suspension notice
that suspends 30 CFR 816.46(b)(2) (51 FR 41952, 41961, November 20,
1986).
i. At IAC 27-40.63(207), Iowa incorporates 30 CFR 816.81, coal mine
waste: general requirements, and the suspension notice that suspends
paragraph (a) of that section insofor as it allows end dumping or side
dumping of coal mine waste (51 FR 41952, 41961, November 20, 1986).
j. At IAC 27-40.64(207), Iowa incorporates 30 CFR 817.46,
hydrologic balance: siltation structures, and the suspension notice
that suspends 30 CFR 817.46(b)(2) (51 FR 41952, 41962, November 20,
1986).
k. At IAC 27-40.64(207), Iowa incorporates 30 CFR 817.81, coal mine
waste: general requirements, and the suspension notice that suspends
paragraph (a) of that section insofar as it allows end dumping or side
dumping of coal mine waste (51 FR 41952, 41962, November 20, 1986).
l. At IAC 27-40.71(207), Iowa incorporates 30 CFR 840.11,
inspections by State regulatory authority, and the suspension notice
that suspends 30 CFR 840.11(g) and (h) (56 FR 25036, June 3, 1991).
5. Required Program Amendments
Iowa submitted proposed revisions in response to required program
amendments at 30 CFR 915.16(a) of the Federal regulations that OSM
placed on the Iowa program in the November 6, 1991, final rule Federal
Register notice (56 FR 56578, 56594). The Director finds that the
following proposed State regulations satisfy the required program
amendments and are no less effective than the Federal regulations
indicated in each required program amendment, and the Director is
approving them [the codified required amendments at 30 CFR 915.16 are
indicated in brackets]: IAC 27-40.11(2), by deleting from incorporation
by reference the Federal regulation at 30 CFR 710.12 and by insuring
that the appropriate State citations are substituted for incorporated
Federal citations, [30 CFR 915.16(a)(2)]; IAC 27-40.13(207), by
deleting from incorporation by reference subparagraphs (1) through (5)
from the Federal regulation at 30 CFR 716.1(a), [30 CFR 915.16(a)(3)];
IAC 27-40.21(5) and (7), by specifying that the general word
substitutions for ``Act'' and ``Secretary'' at rule IAC 27-40.1(207) do
not apply to the incorporated 30 CFR 761.3 and by removing the
incorporation by reference of 30 CFR 761.12(c), [30 CFR 915.16(a)(4)];
IAC 27-40.51(5) by insuring that the phrase ``and Part 823 of this
chapter'' is incorporated in its rule, [915.16(a)(7)]; IAC 27-40.61(1)
through (4) by requiring that the performance standards and design
requirements of Iowa's approved program be followed and by deleting the
reference to ``Parts 818 through 828'' and replacing it with ``Parts
819, 823, 827, and 828,'' [30 CFR 915.16(a)(8)]; IAC 27-40.63 (207) and
27-40.64 (207) by providing design criteria for the construction or
modification of coal mine waste refuse piles, [30 CFR 915.16(a)(9)];
IAC 27-40.63 (207) by incorporating by reference the Federal
regulations at 30 CFR 816.104 and .105 that define thick and thin
overburden, [30 CFR 915.16(a)(11)]; IAC 27-40.66(207) by deleting from
its incorporation by reference the Federal regulation at 30 CFR
823.11(a) thereby requiring that prime farmland occupied by all coal
preparation plants, support facilities and roads that are a part of the
surface mining activities meet the applicable prime farmland
performance standards, [30 CFR 915.16(a)(12)]; IAC 27-40.67(2) by
deleting from incorporation by reference subchapters 30 CFR
827.13(a)(1) through (3) that deal with interim performance standards
that are not applicable to the Iowa program, [30 CFR 915.16(a)(14)];
IAC 27-40.72(3)b by requiring that the name of the person who is or may
be adversely affected shall not be disclosed unless confidentiality had
been waived or disclosed, [30 CFR 915.16(a)(15)]; IAC 27-40.73(2)c by
referencing the appropriate counterpart rule to section 521(a)(5) of
SMCRA, which is Iowa Code Section 207.14(6), [30 CFR 915.16(a)(16)];
IAC 27-40.73(6)e by referencing the State statute that establishes
procedural requirements for formal adjudicatory hearings, which is Iowa
Code Chapter 17A, [30 CFR 915.16(a)(17)]; IAC 27-40.73(6)g by
referencing Iowa Code section 207.14 which contains provisions
corresponding to section 521(a)(4) and 525 of SMCRA, [30 CFR
915.16(a)(18)]; IAC 27-40.74(5), (6), and (7) by replacing the current
rules with rules that are substantively the same as the corresponding
Federal rules at 30 CFR 845.18, .19, and .20 thereby: (1) providing
rule specific procedures for conducting informal settlements; (2)
providing that the proposed penalty amount be put in escrow prior to
the commencement of the assessment conference; and (3) providing escrow
account handling provisions, [30 CFR 915.16(a)(19)]; IAC 27-40.82(1) by
deleting 30 CFR 955.1 and .2 regarding certification of blasters since
they are not applicable to the State, [30 CFR 915.16(a)(20)]; and IAC
27-40.99(1)d. and (2) by deleting the reference to Iowa Code section
207.14, subsection 4, and instead referring to Iowa Code section
17A.15(3), the provision that establishes procedures for appealing the
decision of an administrative law judge, [30 CFR 915.16(a)(21)].
Accordingly, the Director is removing the required program
amendments as identified above from the Iowa program and as codified at
30 CFR 915.16.
6. IAC 27-40.1 (3) and (4), IAC 27-40.35, IAC 27-40.37, IAC 27-40.38,
IAC 27-40.63, and IAC 27-40.64, Authorization of Land Surveyors
Iowa proposes to revise its rules at IAC 27-40.1 (3) and (4) by
deleting from 30 CFR 779.25(b), 780.14(c), 780.25(a)(1)(i),
780.25(a)(3)(i), 783.25(b), 784.16(a)(1)(i), 784.16(a)(3)(i),
816.46(b)(3), 816.49(a)(2), 816.49(a)(10)(ii), 816.151(a),
817.46(b)(3), and 817.151(a), as incorporated by reference into the
State program, specific language which allows land surveyors to prepare
and certify certain cross-sections, maps, and plans. Iowa also
proposes, at IAC 27-40.37 (incorporating 30 CFR Part 783), IAC 27-40.38
(incorporating 30 CFR Part 784), IAC 27-40.63 (incorporating 30 CFR
Part 816), and IAC 27-40.64 (incorporating 30 CFR Part 817), to make
similar changes to the incorporated language which allows land
surveyors to prepare and certify certain cross-sections, maps, and
plans.
Section 507(b)(14) of SMCRA and the Federal regulations allow land
surveyors to prepare and certify such cross-sections, maps, and plans
only to the extent allowed by the State. Thus, this option is
discretionary to the State regulatory authority and Iowa's decision not
to allow land surveyors to perform such duties does not render Iowa's
program inconsistent with SMCRA or the Federal regulations. Iowa, in a
previous program amendment submittal, received approval from the
Director on November 6, 1991, to prohibit land surveyors from
performing design and certification tasks in other locations of its
program (56 FR 56578, 56584).
In Iowa's July 8, 1993, response to OSM's May 10, 1993, concerns on
this amendment, some of the Federal regulations incorporated by
reference at IAC 27-40.1 (3) and (4) included similar, but slightly
different language from the language the State proposed to delete.
Therefore, Iowa submitted an editorial clarification to OSM in a
letter dated August 20, 1993 (Administrative Record No. IA-388), to
clarify the exact language that the State proposed to delete from the
incorporated Federal provisions. Consequently, the Director finds
Iowa's proposed revisions at IAC 27-40.1 (3) and (4), IAC 27-40.35
(incorporating 30 CFR Part 779), IAC 27-40.37 (incorporating 30 CFR
Part 783), IAC 27-40.38 (incorporating 30 CFR Part 784), IAC 27-40.63
(incorporating 30 CFR Part 816), and IAC 27-40.64 (incorporating 30 CFR
Part 816), and IAC 27-40.64 (incorporating 30 CFR Part 817), to be
consistent with SMCRA and the Federal regulations and is approving the
revisions.
7. IAC 27-40.1(5), Registered, Professional Engineer
Iowa proposes to revise its rules at IAC 27-40.1(5) by deleting the
words ``registered, professional engineer'' from its incorporation by
reference of 30 CFR Parts 779, 780, 783, 784, 816, and 817. Iowa
proposes to replace the deleted phrase with the phrase ``professional
engineer, registered with the State of Iowa.'' This proposed change
insures that professional engineers meet State registration
requirements.
The Director finds the proposed revision at IAC 27-40.1(5) to be
consistent with SMCRA and the Federal regulations and is approving it.
8. IAC 27-40.3(207), General
Iowa, at IAC 27-40.3(207), proposes to revise its rules by deleting
30 CFR 700.12, dealing with petitions to initiate rulemakings, from its
incorporation by reference of 30 CFR Part 700. OSM, in its May 10,
1993, issue letter (Administrative Record No. IA-381) to Iowa,
expressed concern that, by deleting the incorporation of 30 CFR 700.12,
Iowa would be left without any rule to provide procedural requirements
pertaining to such petitions. In a letter dated July 8, 1993
(Administrative Record No. IA-383), Iowa supported its decision to
delete 30 CFR 700.12 by explaining that the Iowa Department of
Agriculture and Land Stewardship promulgated rules to provide
procedural requirements for petitions to initiate rulemaking at IAC 21-
3. The Iowa rules at IAC 21-3, in turn, adopt the Iowa Uniform Rules on
Agency Procedure, Chapter X, that set forth procedures for handling
petitions for rulemaking. Iowa submitted both the Iowa Uniform Rules on
Agency Procedure, Chapter X, and IAC 21-10 for OSM's review.
Iowa further explained in its July 8, 1993, letter that rule IAC
21-3.5(17A) addresses petitions received for related entities and that
``[w]hile the Division has its own rulemaking authority separate from
the Secretary of Agriculture, the Division is an entity of the Iowa
Department of Agriculture and Land Stewardship * * * . Any petitions
received relative to the coal regulatory program will be so
forwarded.'' OSM understands Iowa's explanation to mean that any
petitions received by the Secretary of Agriculture relative to the coal
regulatory program will be forwarded to the Division for processing in
accordance with IAC 21-3 and the Iowa Uniform Rules on Agency
Procedure, Chaper X.
Upon review of IAC 21-3 and the Iowa Uniform Rules on Agency
Procedure, the Director finds them to be no less effective than the
Federal counterpart regulation at 30 CFR 700.12 and is approving them.
With regard to Iowa's proposed revision at IAC 27-40.3(207), to delete
the incorporation of 30 CFR 700.12 of the Federal regulations, the
Director finds this deletion acceptable so long as Iowa amends this
rule to clearly identify IAC 21-3 as governing procedures regarding
petitions for initiating rulemaking. Thus, the Director is requiring
Iowa to further amend its rules at IAC 27-40.3 by clearly identifying
IAC 21-3 as governing procedures regarding petitions for initiating
rulemaking.
9. IAC 27-40.4(9), Definition for ``Previously Mined Area''
Iowa proposes to revise its rules at IAC 27-40.4(9) by deleting the
Federal definition for ``previously mined area'' at 30 CFR 701.5 and
inserting in lieu thereof the following:
``Previously mined area'' means land previously mined on which
there were no surface coal mining operations subject to the standard
of the Surface Coal Mining and Reclamation Act of 1977 (Public Law
95-87, as amended); all highwalls created after August 3, 1977, and
all fully reclaimed sites are excluded from this definition.
Iowa's proposal is in response to a required amendment at 30 CFR
915.16(a)(1) (November 6, 1991 (56 FR 56578, 56594)), that required the
State to provide a definition for ``previously mined area'' that
excludes all highwalls created after August 3, 1977, and all fully
reclaimed sites. The Director finds that Iowa's proposal satisfies the
required amendment at 30 CFR 915.16(a)(1) and the Director is,
therefore, approving the proposed definition.
Since the required amendment was promulgated at 30 CFR
915.16(a)(1), however, on January 8, 1993 (58 FR 3466), OSM issued a
new definition for ``previously mined area.'' The new definition
provides as follows: ``Previously mined area means land affected by
surface coal mining operations prior to August 3, 1977, that has not
been reclaimed to the standards of 30 CFR chapter VII.''
This definition limits the applicability of 30 CFR 816.106 and
817.106 to those areas mined prior to August 3, 1977, that are either
unreclaimed or reclaimed to lesser standards than those prescribed by
SMCRA, while also ensuring that areas mined prior to that date that
have been fully and satisfactorily reclaimed pursuant to SMCRA's
standards will not be redisturbed and then reclaimed under the less
stringent requirements of 30 CFR 816.106 and 817.106. According to the
preamble discussion for the definition of ``previously mined area,''
under the definition, unreclaimed or partially reclaimed areas mined
prior to August 3, 1977, would continue to qualify for the partial
highwall elimination exemption of 30 CFR 816.106 and 817.106, but would
be otherwise held to full compliance with the reclamation standards of
30 CFR chapter VII. In such instances, the operator would be required
to eliminate the highwall to the maximum extent technically practical,
and to demonstrate the stability of the remaining highwall remnant.
As stated above, Iowa's proposed definition explicitly excludes all
highwalls created after August 3, 1977, and all fully reclaimed sites.
It is not explicitly clear, however, that the proposed Iowa definition
is consistent in all respects with the newly-promulgated Federal
definition. For example, under the Federal definition, in order for
land to qualify as a ``previously mined area,'' the land must both: (1)
have been affected by surface coal mining operations prior to August 3,
1977; and (2) not have been reclaimed to the standards of 30 CFR
chapter VII.
By comparison, under the State proposal, the key consideration in
determining whether an area of land qualifies as previously mined area,
is whether the previous surface coal mining operations there were
``subject to the standards of the [SMCRA] * * *'' To the extent the
State proposal relies upon whether an area of land was subject to the
standards of SMCRA, it is similar to the previous Federal definition of
``previously mined area,'' promulgated on May 8, 1987 (52 FR 17526,
17529).
As discussed in the preamble to the promulgation of the current
Federal definition of ``previously mined area,'' the 1987 Federal
definition of that term was remanded by the United States District
Court for the District of Columbia. See National Wildlife Federation v.
Lujan, 733 F. Supp. 419, 438-442 (1990). The Court found that the 1987
definition did not conform to the requirements of SMCRA to the extent
it relied upon any date other than the date of SMCRA's enactment--
August 3, 1977. Id.
Therefore, although the Director finds Iowa's proposed rule at IAC
27-40.4(9) satisfies the previous required amendment at 30 CFR
915.16(a)(1) and is approving it, the Director is requiring Iowa to
further amend its definition of ``previously mined area'' at IAC 27-
40.4(9) to be explicitly no less effective than the current Federal
definition at 30 CFR 701.5. The Director will modify the required
amendment at 30 CFR 915.16(a)(1) in accordance with this finding.
10 IAC 27-40.21(207), Definition for ``Valid Existing Rights''
Iowa proposes to revise its rules at IAC 27-40.21(207) by
incorporating by reference the definition for ``valid existing rights''
(VER) at 30 CFR 761.5 as it existed on July 1, 1992. Paragraphs (a) and
(c) of the definition were suspended on November 20, 1986 (51 FR 41952,
41954-41955). In that suspension notice, OSM stated the following with
regard to Federal Programs and the Indian Lands Program:
* * * Suspending the rule has the effect of undoing the
improper promulgation and leaving in place the VER test in use
before the 1983 definition was promulgated. That test was the 1979
test, including the ``needed for and adjacent'' test, as modified by
the August 4, 1980, suspension notice which implemented the District
Court's February 1980 opinion in In Re: Permanent (I) (the 1980
test) * * * Under the 1980 test, a demonstration of both property
rights and that the person either had made a good faith effort to
obtain all permits necessary to mine or that the coal is both needed
for and adjacent to an ongoing surface coal mining operation is
sufficient to establish VER.
Accordingly, OSM will make VER determinations in Federal program
States and on Indian lands using the 1980 test. OSM will make VER
determinations on a case-by-case basis after examining the
particular facts of each case, and will consider property rights in
existence on August 3, 1977, the owner of which by that date had
made a good faith effort to obtain all permits, as one class of
circumstances which would invariably entitle the property owner to
VER. VER would also exist when there are property rights in
existence on August 3, 1977, the owner of which can demonstrate that
the coal is both needed for an immediately adjacent to a mining
operation in existence prior to August 3, 1977.
As discussed in Finding no. 4 of this document, Iowa has indicated
its intention to adopt the suspension notices located at the end of the
federal regulations published in the Code of Federal regulations. Thus,
as applied to the definition of VER, the Director interprets Iowa's
adoption of the Federal definition to include the above-quoted language
language from the November 20, 1986, preamble. The Director will notify
Iowa of any change in the Federal regulation in accordance with 30 CFR
732.17(d) and may in the future require Iowa to modify its regulatory
program to remain consistent with the Federal provision. In the
meantime, the Director is approving Iowa's proposed adoption by
reference of the definition for VER at 30 CFR 761.5.
11. IAC 27-40.31(2), Requirements for Permits and Permit Processing
Iowa proposes to revise its rules at IAC 27-40.31(2) by requiring
that the words ``and the scale of the map'' be added at the end of the
last sentence of 30 CFR 773.13(a)(1)(ii), as incorporated by reference
into the State program. In addition, Iowa proposes to add the following
paragraph to 30 CFR 773.13(a)(1)(ii), as incorporated by reference into
the State program:
The legal description shall include popular township, county,
township, range, section, and the United States Geological Survey
map identification by property owners. Section lines shall be marked
and the sections shall be identified on the map. The total acreage
of the proposed permit area shall be given to the nearest acre.
While the Federal regulations at 30 CFR 773.13(a)(1) do not require
such detailed information, in accordance with section 505(b) of SMCRA
and 30 CFR 730.11(b), the State regulatory authority has the discretion
to impose land use and environmental controls and regulations on
surface coal mining and reclamation operations that are more stringent
than those imposed under SMCRA and the Federal regulations. Moreover,
the State regulatory authority has the discretion to impose land use
and environmental controls and regulations on surface coal mining and
reclamation operations for which no Federal counterpart provision
exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such
State provisions shall not construed to be inconsistent with the
Federal program. Therefore, the Director is approving Iowa's proposed
revision at IAC 27-40.31(2).
12. IAC 27-40.31(9), Requirements for Permits and Permit Processing
Iowa proposes, at IAC 27-40.31, to add paragraph (9) that specifies
that the general word substitution of the term ``Act'' with the term
``Iowa Code chapter 207'' found at IAC 27-40.1(2) does not apply to 30
CFR 773.15(b), as incorporated by reference into the Iowa program.
The incorporated Federal regulation, 30 CFR 773.15(b), requires
that no permit be issued if any surface coal mining and reclamation
operation owned or controlled by either the applicant or by any person
who owns or controls the applicant ``is currently in violation of the
Act or any other law, rule or regulation referred to in [30 CFR
773.15],'' as indicated by any available information, including the
list of violation notices submitted in the application. Among the
specified violations are:
Federal and State failure-to-abate cessation orders, unabated
Federal and State imminent harm cessation orders, delinquent civil
penalties issued pursuant to section 518 of the Act, bond
forfeitures where violations upon which the fortfeitures were based
have not been corrected, delinquent abandoned mine reclamation fees,
and unabated violations of Federal and State laws, rules, and
regulations pertaining to air or water environmental protection
incurred in connection with any surface coal mining operation. . . .
The preamble to the Federal regulation dated October 3, 1988 (53 FR
38868, 38886, clarifies that all unabated violations are included, no
matter when they were issued:
The Act requires regulatory authorities to consider past conduct
in the permitting process. . . . In view of [sections 507(b)(4),
(b)(5), and 510(c)] of the Act, it is clear that Congress both
contemplated and authorized holding applicants accountable for past
violations.
Furthermore, permit denial is based on violations of any State or
Federal program. As explained in the preamble to 30 CFR 778.14(c) dated
September 28, 1983 (48 FR 44344, 44389), the reference to ``the Act''
in SMCRA section 510(c), on which these Federal regulations are based,
includes all State and Federal programs approved under SMCRA. See also
(53 FR 38868, 38882-38883) October 3, 1988. Therefore, in the context
of the State's incorporation by reference of the Federal regulation at
30 CFR 773.15(b), the term ``Act'' must be understood to have the same
meaning that it has under the Federal program.
The Director therefore finds Iowa's proposed revision at IAC 27-
40.31(9) to be consistent with SMCRA and the Federal regulations and is
approving it.
13. IAC 27-40.31 (13) and (14), Requirements for Permits and Permit
Processing
a. Time frame for permit application objections. Iowa proposes to
revise its rule at IAC 27-40.31 that addresses comments and objections
on permit applications by adding a paragraph (13) that would replace
the phrase ``a reasonable time established by the regulatory
authority'' in incorporated 30 CFR 773.13(b)(1) with the phrase ``60
days of the notification.'' This would allow those public entities
identified at 30 CFR 773.13(b)(1) 60 days to submit written comments or
objections with respect to the effects of the proposed mining
operations on the environment within their areas of responsibility. OSM
interprets the phrase ``60 days of the notification'' to mean 60 days
from the date of receipt of the notification required to be given to
specific public entities under 30 CFR 773.13(a)(3).
The allowance of 60 days from the date of receipt of the
notification of an application for a permit action for the governmental
entities identified at 30 CFR 773.13(a)(3) to submit written comments
or objections is a reasonable time frame and is consistent with the
time frames allowed for in SMCRA. Therefore, the Director finds this
proposed revision to be no less effective than the Federal regulation
in meeting SMCRA's requirements and is approving it.
b. Reapplication requirements. Iowa proposes to revise its rule at
IAC 27-40.31(14), dealing with the review of permit applications, to
require that the following sentence be added at the end of incorporated
30 CFR 773.15(a)(2): ``In case willful suppressing or falsifying of any
facts or data is identified, the division may require the applicant to
reapply for the same area.''
Iowa's proposed revision conflicts with SMCRA, the Federal
regulations, and other provisions of the Iowa program. Section
510(b)(1) of SMCRA and section 30 CFR 773.15(c)(1) of the Federal
regulations provide that no application for a permit or permit revision
shall be approved unless the application affirmatively demonstrates and
the regulatory authority finds in writing on the basis of information
set forth in the application or from information otherwise available
which will be documented in the approval, and made available to the
applicant, that the permit application is accurate and complete and
that all the requirements of this Act and the State or Federal program
have been complied with. Counterpart State provisions to section
510(b)(1) of SMCRA and 30 CFR 773.15(c)(1) can be found in the Iowa
program at section 207.9(2)(a) of the Iowa Code and IAC 27-40.31
(incorporating 30 CFR 773.15 by reference).
Thus, under SMCRA, the Federal regulations, and the Iowa program,
in the event willful suppressing or falsifying of any facts or data is
identified, the regulatory authority would have no discretion and would
be required to deny the permit. Therefore, the Director finds Iowa's
proposed added language at IAC 27-40.31(14) to be less stringent than
SMCRA, less effective than the Federal regulations in meeting SMCRA's
requirements, and inconsistent with approved Iowa program. Accordingly,
the Director is not approving it.
The Director also notes that under the Federal, as well as the
State, program, anyone who knowingly makes any false statement,
representation, or certification, or knowingly fails to make any
statement, representation, or certification in any application, record,
report, plant, or other document filed or required to be maintained
under the program, is subject to criminal penalties, including
imprisonment. See section 518(g) of SMCRA. See also Section 207.15(6)
of the Iowa Code.
14. IAC 27-40.32, Revision; Renewal; and Transfer, Assignment, or Sale
of Permit Rights
a. Revisions and amendments. Iowa proposes to revise its rule at
IAC 27-40.32(1) by adding an introductory provision that explains that
the term ``revision'' is used to describe ``a change to a permit that
constitutes a significant departure from the original permit. Any
change to an Iowa permit that does not constitute a significant
departure from the original permit is called an ``amendment'' to the
permit in the context of these rules.'' The introductory provision
continues by requiring that the public notice, public participation,
and notice of decision requirements of 30 CFR 773.13, 773.19(b), and
778.21 apply to all revisions.
Iowa proposes to revise IAC 27-40.32(1) by clarifying that
``[s]ignificant departures, including incidental boundary revisions,
shall be treated as revisions.'' Significant departures include any
change in the permit area, mining method or reclamation procedure,
which would, in the opinion of the regulatory authority, significantly
change the effect the mining operations would have on either those
persons impacted by the permitted operation or on the environment. At
IAC 27-40.32(3), Iowa clarifies that, unless it qualifies as an
incidental boundary revision, any change in permit area must be treated
as a new permit application.
At IAC 27-40.32(1), Iowa also proposes to add a sentence to the end
of the State's substitute paragraph (b) for 30 CFR 774.13(b) that
requires ``[a] change which does not constitute a significant departure
from the original permit will be processed as an amendment to the
permit[.]''
Iowa proposes to add a new paragraph (6) at IAC 27-40.32 that
modifies its incorporation by reference of 30 CFR 774.13(a) by adding
the following at the end of the incorporated Federal regulation:
The ``revision'' is a significant departure in mining and
reclamation operations defined at subrule 40.32(1)(b)(2)(i), and it
requires a public notice. The division uses the term ``amendment''
for an insignificant revision, and it does not require a public
notice.
The Federal regulations at 30 CFR 774.13 do not address permit
``revisions'' versus ``amendments'' specifically, however, 30 CFR
774.13(b)(2) requires the regulatory authority to create guidelines
establishing the scale or extent of revisions for which all the permit
application information requirements and procedures of 30 CFR Chapter
VII, Subchapter G, including the public notice, public participation,
and notice of decision requirements of 30 CFR Secs. 773.13, 773.19(b)
(1) and (3), and 778.21, shall apply. The Federal regulations at 30 CFR
774.13(b)(2) also specify that such requirements and procedures shall
apply ``at a minimum to all significant permit revisions.''
There are four concerns regarding Iowa's proposed changes to its
program. First, Iowa has language in its program, at IAC 27-40.32(2),
that provides, in part:
Any application for a revision which proposes significant
alterations in the operations described in the materials submitted
in the application for the original permit under Part 3 of these
rules or in the conditions of the original permit, shall, at a
minimum, be subject to the requirements of Part 9 of these rules and
must provide replacement documentation fully describing changes to
be made in the same detail as required in the original permit
(emphasis added).
By comparison, the proposed language at 27-40.32 (1) and (6)
described above refers to significant departures and significant
departures appear to only be required to provide public participation
and public notice. Therefore, it appears that Iowa is proposing a two-
tiered system for revisions: an all-inclusive revision, referred to as
a significant alteration, which requires full replacement documentation
and adherence to the requirements of Part 9, and a subset to the
significant alteration, referred to as a significant departure, which
only requires public participation and notice.
Second, the preamble to the Federal rules at 30 CFR 774.13(b)(2)
dated September 28, 1983, (48 FR 44344, 44377) makes it clear that all
revisions to the permit, whether they be significant or insignificant,
or in Iowa's case a revision or an amendment, must be approved by the
regulatory authority and incorporated into the permit.
Under the final rule, the regulatory authority will establish
the guidelines for revisions. However, all revisions must be
approved and incorporated into the permit since they are changes to
that document. The permit and all public copies of it should reflect
all revisions approved by the regulatory authority so that all
interested persons, including inspectors, the operator, and the
public, will have an accurate copy of the permit. The permit is the
document which authorizes the operator to mine and must be accurate.
The first paragraph of proposed IAC 27-40.32(1) seems to require
that any change to a permit be approved by the regulatory authority,
either by amendment or revision. At a later section of proposed IAC 27-
40.32(1), however, Iowa states that:
[(b)](2) A revision or amendment to a permit shall be obtained:
(i) For changes in the surface coal mining or reclamation
operations described in the original application and approved under
the original permit, when such changes constitute a departure from
the method or conduct of mining and reclamation operations
contemplated in the original permit (emphasis added).
Thus, in one portion of the proposal Iowa seems to require, like
the Federal regulations, that all changes to a permit be approved by
the regulatory authority. However, in another portion of the proposal,
Iowa seems to require such regulatory authority approval only for a
particular type of change to a permit. Moreover, Iowa does not insure
that all revisions (significant departures and amendments) be
incorporated into the permit and all public copies of the permit.
Third, the Federal regulations set forth criteria for approval at
30 CFR 774.13(c) that govern all permit revisions, whether significant
or nonsignificant. Iowa has, at proposed 27-40.32(207), incorporated by
reference the Federal provision at 30 CFR 774.13(c) into the Iowa
program. However, in the context of the Iowa program, the term ``permit
revision'' only includes significant revisions. Thus, the Federal
regulations require that the criteria at 30 CFR 774.13(c) govern the
approval of all revisions, while the State proposal requires that such
criteria govern only the approval of significant revisions.
Finally, Iowa has not outlined what permit application standards
and procedures apply to amendments. The preamble to 30 CFR 774.13(b)(2)
dated September 28, 1983 (48 FR 44344, 44377), clearly requires the
regulatory authority to establish guidelines as to what requirements
will apply to nonsignificant revisions (i.e. amendments) to the permit.
In light of the concerns outlined above, the Director finds Iowa's
proposed rules at IAC 27-40.32(1) and 32(6) to be inconsistent with and
less effective than the Federal program requirements and is not
approving them to the extent that these proposed rules attempt to
distinguish between permit amendments and revision.
b. Permit review. Iowa proposes to revise IAC 27-40.32(1) and
.32(1)(b)(2)(ii) in response to a required program amendment placed on
the Iowa program at 30 CFR 915.16(a)(5). This required program
amendment directed Iowa to require that the Federal regulations at 30
CFR 773.13, 773.19(b) (1) and (3), and 778.21 apply, at a minimum, to
all significant permit revisions and that the division may, at any
time, as well as at midterm review, require reasonable revisions or
modifications.
Iowa, at IAC 27-40.32(1), proposes to require that 30 CFR 773.13,
773.19(b) (1) and (3), and 778.21 apply, at a minimum, to all
significant permit revisions. However, since the Director is not
approving Iowa's proposed distinction between permit amendments and
revisions, this proposed language does not work in the context of the
existing rules at IAC 27-40.32(1). Therefore, the Director is not
approving the proposed language at IAC 27-40.32(1).
Iowa, at IAC 27-40.32(1)(b)(2)(ii), proposes to require that the
division may, at any time, as well as at midterm review, require
reasonable revisions or modifications. Therefore, the Director finds
that Iowa has adequately addressed this portion of the required program
amendment at 30 CFR 915.16(a)(5) and is approving the proposed language
at IAC 27-40.32(1)(b)(2)(ii).
The Director will amend the required program amendment at 30 CFR
915.16(a)(5) in accordance with this finding.
c. Incidental boundary revisions. Iowa proposes to add a
requirement to IAC 27-40.32(3) that incidental boundary revisions
(IBR's) shall be considered, on demonstration by the operator, for an
area in which the proposed mining operations are contiguous to the
approved permit. OSM interprets the proposed language to mean that
before an area of land can be added to a permit as an IBR, it must be
contiguous to the approved permit.
The Federal regulations at 30 CFR 774.13(d) do not specifically
require that lands subject to an IBR be contiguous to the approved
permit area. However, in accordance with section 505(b) of SMCRA and 30
CFR 730.11(b), the State regulatory authority has the discretion to
impose land use and environmental controls and regulations on surface
coal mining and reclamation operations that are more stringent than
those imposed under SMCRA and the Federal regulations. Moreover, the
State regulatory authority has the discretion to impose land use and
environmental controls and regulations on surface coal mining and
reclamation operations for which no Federal counterpart provisions
exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such
State provisions shall not be construed to be inconsistent with the
Federal program. Therefore, the Director finds that the reproposed rule
at IAC 27-40.32(3) is not inconsistent with SMCRA or the Federal
regulations and is approving it.
d. Permit renewal exclusion. Iowa proposes to add a new paragraph
(8) at IAC 27-40.32 that would exclude the need for a permit renewal if
the Division determines that the phase II bond was released over the
entire permit area before the expiration of the permit term. This
proposed language is similar to OSM's final rule at 30 CFR 773.11(a)
published in the April 5, 1989, Federal Register (54 FR 13814), that
establishes that a permittee need not renew the permit if no surface
coal mining operations will be conducted under the permit and solely
reclamation activities remain to be done.
However, the Federal regulation at 30 CFR 773.11(a) continues by
requiring that obligations established under a permit continue until
completion of surface coal mining and reclamation operations,
regardless of whether the authorization to conduct surface coal mining
operations has expired or has been terminated, revoked, or suspended.
Iowa incorporates by reference, at IAC 27-40.31(207), that portion of
30 CFR 773.11(a) which requires that obligations established under a
permit continue until completion of surface coal mining and reclamation
operations, regardless of whether the authorization to conduct surface
coal mining operations has expired or has been terminated, revoked, or
suspended. Therefore, the Director finds Iowa's proposed rule at IAC
27-40.32(8) to be no less effective than the Federal regulation and is
approving it.
e. Permit application information. Iowa proposes to add a new
paragraph (9) at IAC 27-40.32 that modifies its incorporation by
reference of 30 CFR 774.15(b)(2)(i) to require that, in addition to the
application information required by the Federal provision for a permit
renewal, an applicant must also provide information concerning the
``current status of the mine plan, other details and the time table--if
different from the one previously approved--for the remaining phases of
the operation and reclamation plans.''
While the corresponding Federal regulation does not require this
additional information, in accordance with section 505(b) of SMCRA and
30 CFR 730.11(b), the State regulatory authority has the discretion to
impose land use and environmental controls and regulations on surface
coal mining and reclamation operations that are more stringent than
those imposed under SMCRA and the Federal regulations. Moreover, the
State regulatory authority has the discretion to impose land use and
environmental controls and regulations on surface coal mining and
reclamation operations for which no Federal counterpart exists. Section
505(b) of SMCRA and 30 CFR 730.11 dictate that such State provisions
shall not be construed to be inconsistent with the Federal program.
Therefore, the Director is approving Iowa's proposed revision at IAC
27-40.32(9).
15. IAC 27-40.34(3), Permit Application--Minimum Requirements for
Legal, Financial, Compliance, and Related Information
Iowa proposes to add, at IAC 27-40.34, a paragraph (3) that
specifies that the general word substitution of the term ``Act'' with
the term ``Iowa Code chapter 207'' at IAC 27-40.1(2) does not apply to
30 CFR 778.14(c), as incorporated by reference into the Iowa program,
regarding minimum information requirements about violations that must
be included in any permit application. As discussed in Finding No. 12
of this document, references to ``the Act'' in the Federal regulations
at 30 CFR 778.14(c) and section 510(c) of SMCRA include, in addition to
SMCRA and its implementing regulations, all State and Federal programs
approved under SMCRA. See e.g. (48 FR 44344, 44389) September 28, 1983.
See also (53 FR 38868, 38882-38883) October 3, 1988.
Thus, 30 CFR 778.14(c) requires information regarding violations
received pursuant to SMCRA or any State or Federal law, rule, or
regulation enacted or promulgated pursuant to SMCRA. In addition, 30
CFR 778.14(c) requires information regarding violations received
pursuant to any non-SMCRA Federal law, rule, or regulation, or any non-
SMCRA State law, rule, or regulation which was enacted pursuant to
Federal law, rule, or regulation, which pertains to air or water
environmental protection and which were received in connection with any
surface coal mining and reclamation operation. Therefore, in the
context of the State's incorporation by reference of the Federal
regulation at 30 CFR 778.14(c), the term ```Act'' must be understood to
have the same meaning that it has under the Federal program.
The Director finds Iowa's proposed revision at IAC 27-40.34(9) to
be consistent with SMCRA and the Federal regulations and is approving
it.
16. IAC 27-40.35 (10) and (11), Climatological Information
a. Rain gauge identification Iowa proposes to revise IAC 27-
40.35(10) by adding a paragraph (c) to the incorporated Federal
regulation at 30 CFR 779.18 that would provide as follows:
Location of the rain gauges nearest to the permit area,
preferably in the same watershed as the permit itself, shall be
marked on a map, and these shall be described in the text as well,
along with the period of available record at these gauges.
While the corresponding Federal regulations at 30 CFR 779.18 do not
require this information, in accordance with section 505(b) of SMCRA
and 30 CFR 730.11(b), the State regulatory authority has the discretion
to impose land use and environmental controls and regulations on
surface coal mining and reclamation operations that are more stringent
than those imposed under SMCRA and the Federal regulations. Moreover,
the State regulatory authority has the discretion to impose land use
and environmental controls and regulations on surface coal mining and
reclamation operations for which no Federal counterpart provision
exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such
State provisions shall not be construed to be inconsistent with the
Federal program. Therefore, the Director is approving Iowa's proposed
revision at IAC
27-40.35(10).
b. Climatological impact description. Iowa proposes to revise IAC
27-40.35(11) by adding a paragraph (d) to the incorporated Federal
regulation at 30 CFR 779.18 that would provide as follows:
A brief descrition shall be provided about the impact of the
climatological factors on operation and reclamation plans,
specifically what part of the year would be more conducive than
others to various mining and reclamation operations.
While the corresponding Federal regulations at 30 CFR 779.18 do not
require this information, in accordance with section 505(b) of SMCRA
and 30 CFR 730.11(b), the State regulatory authority has the discretion
to impose land use and environmental controls and regulations on
surface coal mining and reclamation operations that are more stringent
than those imposed under SMCRA and the Federal regulations. Moreover,
the State regulatory authority has the discretion to impose land use
and environmental controls and regulations on surface coal mining and
reclamation operations for which no Federal counterpart provision
exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such
State provisions shall not be construed to be inconsistent with the
Federal program. Therefore, the Director is approving Iowa's proposed
revision at IAC
27-40.35(11).
17. IAC 27-40.35 (12), (13) and (14) Maps: General Information
a. Hydrologic area. Iowa proposes, at IAC 27-40.35(12), to revise
its incorporation by reference of 30 CFR 779.24(g) by deleting the
phrase ``defined by the regulatory authority.'' Iowa further proposes
to add the following sentence at the end of incorporated 30 CFR
779.24(g): ``Hydrologic area'' is the area that consists of the permit
area and the adjacent area.'' Thus, the Iowa proposal would require
permit applications to include maps showing, among other things, the
locations of water supply intakes for current users of surface water
flowing into, out of, and within the permit and adjacent area.
Iowa adopts by reference at IAC 27-40.4(207), the term ``adjacent
area'' as it is defined at 30 CFR 701.5. The definition for ``adjacent
area'' includes the area outside the permit area where resources,
determined according to the context in which adjacent area is used, are
or reasonably could be expected to be adversely impacted by proposed
mining operations, including probable impacts from underground
workings. In explaining the meaning of the term ``adjacent area,'' OSM
stated in the Federal Register notice dated April 5, 1983 (48 FR 14814,
14818-14819), that:
The term ``adjacent area'' is intended to refer to an area of
variable size in which specified resources could be adversely
impacted by mining operations. The size of the adjacent area could
vary on a case-by-case basis depending upon whether impacts on
water, fish and wildlife, cultural resources, or others are being
considered * * * .
* * * * *
* * * The area determined to be within the ``adjacent area''
must be defined within the context of the particular resource being
evaluated and often will depend upon local conditions. * * * Thus,
the adjacent area may differ from case to case depending upon the
factors under consideration. This can best be resolved by the
regulatory authority within the context of the particular
requirement of the regulatory program and the conditions within the
particular State, region, or locale where the proposed mining
operation is located.
Thus, Iowa's proposed revision ensures that permit application maps
will illustrate the locations of all water supply intakes for current
users whose surface water supply will or could reasonably be expected
to be adversely affected by the proposed mining operations.
Accordingly, the Director finds IAC 27-40.35(12) to be consistent with
SMCRA and no less effective than the Federal regulations, and is
approving it.
b. Section and section line identification. Iowa proposes, at IAC
27-40.35(14), to revise its incorporation by reference of 30 CFR
779.24(1) by inserting the following at the beginning of the
regulation: ``Section lines and section identification, and any * *
*.'' Thus, as revised by the State, the incorporated provision would
require that permit applications include maps showing, among other
things, ``[s]ection lines and section identification, and any other
relevant information required by the regulatory authority.''
The Federal regulation at 30 CFR 779.24(1) simply allows the
regulatory authority to require other information. While the
corresponding Federal regulations 30 CFR 779.24(1) do not require the
information regarding section lines and section identification, in
accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State
regulatory authority has the discretion to impose land use and
environmental controls and regulations on surface coal mining and
reclamation operations that are more stringent than those imposed under
SMCRA and the Federal regulations. Moreover, the State regulatory
authority has the discretion to impose land use and environmental
controls and regulations on surface coal mining and reclamation
operations for which no Federal counterpart provision exists. Section
505(b) of SMCRA and 30 CFR 730.11 dictate that such State provisions
shall not be construed to be inconsistent with the Federal program.
Therefore, the Director is approving Iowa's proposed revision at IAC
27-40.35(14).
18. IAC 27-40.36(3), Surface Mining Applications--Minimum Permit
Requirements for Reclamation and Operation Plan and IAC 27-40.38(8),
Underground Mining Permit Applications--Minimum Permit Requirements for
Reclamation and Operation Plan
Iowa proposes to add the following new language at IAC 27-40.36(3)
and 27-40.38(8), which deal with minimum requirements for reclamation
and operations plans for surface and underground mining permit
applications, respectively:
The determination of probable hydrologic consequence (PHC) made
pursuant to these rules as part of a permit application shall
address all proposed mining activities associated with the permit
area for which authorization is sought as opposed to addressing only
those activities expected to occur during the term of the permit.
In a November 6, 1991, rulemaking (56 FR 56578, 56584-56578), OSM
requested that Iowa clarify how it intended to implement 30 CFR
780.21(f) and 784.14(d) regarding PHC determinations. The State
proposal satisfies the concerns OSM expressed in Finding No. 15 of the
November 6, 1991, Federal Register document. Accordingly, the Director
finds the State proposals at IAC 27-40.36(3) and 27-40.38(8) to be
consistent with SMCRA and the Federal regulations and is approving
them.
19. 27-40.36 (5) and (6), Hydrologic Information
a. Water quality measurement. Iowa proposes, at IAC 27-40.36(5), to
revise its incorporation by reference of 30 CFR 780.21(a) by adding the
following sentence at the end of the regulation: ``The methodology for
measurement of the quantity of both surface water and groundwater shall
also be described.'' OSM interprets this to mean that such measurement
methodologies must be described in the permit application, although the
State proposal does not explicitly so provide. The Federal regulation
at 30 CFR 780.21(a) requires that all water-quality analyses performed
shall be conducted according to the methodology in the 15th edition of
``Standard Methods for the Examination of Water and Wastewater'' or the
methodology in 40 CFR Parts 136 and 434 but the regulation does not
specify that the methodology for measurement of the quantity of both
surface water and groundwater shall also be described.
However, section 30 CFR 777.13(a) requires all technical data
submitted in the application be accompanied by, among other things, a
description of the methodology used to collect and analyze the data.
Iowa incorporates 30 CFR 777.13(a) at IAC 27-40.33(207). Hence, the
addition of this proposed language simply reiterates the need for a
description of the methodology used. Therefore, The Director is
approving Iowa's proposed revision at IAC 27-40.36(5).
b. Water information requirements. Iowa proposes, at IAC 27-
40.36(6), to revise its incorporation by reference of 30 CFR 780.21(d)
by deleting the phrase ``may be required by the regulatory authority''
and replacing it with the phrase ``is required.'' The deleted phrase
provided the State with discretion whether to require actual surface
and groundwater information be provided when modeling techniques,
interpolation or statistical techniques are included in the permit
application. Iowa, by removing this phrase, will now require the actual
surface and groundwater information to be included in all permits
applications.
The Director finds that this is a matter left to the discretion of
the State regulatory authority under the Federal regulations.
Accordingly, the Director finds this proposed revision at IAC 27-
40.36(6) to be no less effective than the Federal regulations and is
approving it.
20. IAC 27-40.37(4), Cross Sections, Maps, and Plans
Iowa proposes to revise its rule at 27-40.37(4) to correct a
typographical error. The current language provides that the first
sentence in incorporated 30 CFR 783.24, dealing with informational
requirements for underground mining permit applications, is changed to
read ``The permit application shall include cross sections at a
vertical exaggeration of 10:1, maps at a scale of 1:2400, and plans
showing. . . .'' The State provision thus specifies more detailed
requirements for cross sections and maps than are specified in the
Federal regulations at 30 CFR 783.25(a). This State provision, along
with IAC 27-40.35(a), the parallel State provisions for surface mining
permit applications, was approved by OSM on November 6, 1991 (56 FR
56578, 56579-56580), as a provision that added specificity to the Iowa
program without adversely affecting other aspects of the program.
Iowa, in its July 8, 1993, submission proposed to correct the
provision to require cross sections with a vertical exaggeration of
1:10, instead of 10:1. However, in revising the provision, Iowa
inadvertently created another typographical error by requiring cross
sections with a vertical exaggeration of 10:11:10. Consequently, Iowa,
in a letter dated August 20, 1993, submitted an editorial clarification
to is revised rule to clarify that the provision requires cross
sections with a vertical exaggeration of 1:10. OSM understands Iowa's
intent to exaggerate the vertical scale of a relief map or cross
section in order to make the map or section more clearly perceptible.
Therefore, in Iowa's case, the scale of vertical representation is
exaggerated 10 times compared to the horizontal.
The Director finds this proposed revision to be no less effective
than the Federal requirement and is approving it.
21. IAC 27-40.39(8), IAC 27-40.67.1, and IAC 27-40.67(3), Coal
Preparation Plants Not Located Within the Permit Area of a Mine
Iowa proposes to revise IAC 27-40.39(8) to require that the
following clarifying sentence be added to incorporated 30 CFR
785.21(a): ``An off-site processing plant operated in connection with
the mine but off the mine site will be regulated without regard to its
proximity to the mine.'' Iowa also proposes to add a rule at IAC 27-
40.67(1) that would delete the Federal regulation 30 CFR 827.1 from
Iowa's incorporation by reference of 30 CFR Part 827. Finally, Iowa
proposes to add a rule at IAC 27-40.67(3) that states ``[p]roximity
shall not be the decisive factor in deciding to regulate an offsite
processing plant.''
These proposed rule changes are in response to, and satisfy,
required program amendments placed on Iowa's program at 30 CFR
915.16(a)(6) and (13) in a November 6, 1991 (56 FR 56578, 56594-56595),
rulemaking action.
These proposed rule changes are also in accordance with OSM's
latest clarification of its position regarding regulation of off-site
coal preparation plants. In a final rule Federal Register notice
published on January 8, 1993, (58 FR 3466, 3468) OSM stated its
position as follows:
OSM's position on the proximity issue, as clarified today in
this final rule, is that surface mining regulatory authorities may
consider geographic proximity as a factor in determining whether
off-site coal processing facilities operate in connection with a
mine as long as proximity is not the decisive factor. To allow
proximity to be the decisive factor would render ``in connection
with'' equivalent to ``at or near.'' That is not the Secretary's
intent.
Therefore, the Director finds Iowa's proposed rules at IAC 27-
40.39(8), IAC 27-40.67(1), and IAC 27-40.67(3) to be consistent with
the Federal program and is approving them. The Director will amend 30
CFR 915.16(a) by removing the required program amendments at 30 CFR
915.16(a)(6) and 30 CFR 915.16(a)(13).
22. IAC 27-40.51(7), Bond Release Application
Iowa proposes to revise its rules at IAC 27-40.51(7) to modify 30
CFR 800.40(a)(2), as incorporated by reference into the Iowa program,
by deleting the phrase ``Within 30 days after an application for bond
release has been filed with the regulatory authority, the permittee
shall submit a copy of an advertisement placed'' and inserting in its
place the following: ``After an application for bond release is deemed
complete by the division, an advertisement shall be placed by the
permittee within 30 days of the date of notification of completeness.''
In addition, Iowa proposes to add the following sentence after the
first sentence of 30 CFR 800.40(a)(2), as modified: ``The permittee
shall submit a copy of the advertisement to the division within 30 days
of the last publication.''
The Federal regulations at 30 CFR 800.40(a)(2) do not require a
permittee to obtain a ``notification of completeness'' prior to placing
an advertisement announcing an application for bond release. Under the
Federal regulations, the advertisement is placed within 30 days after
the application has been filed with the regulatory authority. Iowa
proposes to delay the advertisement until it can verify that the
application is complete.
While the concept of requiring a permittee to obtain a notification
of completeness prior to placing the advertisement is not considered
less effective than the Federal program, the implementation of this
concept would render Iowa's program less effective than the Federal
program because of the inherent contradiction this revision would
create in the State rules regarding applicable time limits for the
processing of bond release applications.
That is, the Iowa proposal retains the provision of the Federal
regulations at 30 CFR 800.40(b)(2) that requires the regulatory
authority to notify the involved parties of its decision on the bond
release application ``[w]ithin 60 days from the filing of the bond
release application * * *'' However, under the proposed revision, once
an application is submitted, and allowance is made for: (1) The
permittee obtaining a notice of completeness; (2) the permittee's 30-
day time frame for placing the newspaper advertisement; (3) the running
of the advertisement of four successive weeks; and (4) the permittee's
30 day time frame for submitting a copy of the advertisement to the
regulatory authority, it would be virtually impossible for the
regulatory authority to ever comply with the 60-day notification
requirement of 30 CFR 800.40(b)(2). Therefore, the Director finds
Iowa's proposed rule at 27-40.51(7) is less effective than the Federal
regulations at 30 CFR 800.40(a)(2) and is not approving it.
23. IAC 27-40.63(207) and (2), Contemporaneous Reclamation,
Backfilling and Grading Time and Distance Requirements
Iowa proposes, at IAC 27-40.63(207), to incorporate by reference
the Federal regulations at 30 CFR Part 816 as they were in effect on
July 1, 1992. This would include the Federal regulation at 30 CFR
816.101 concerning backfilling and grading time and distance
requirements. The Federal regulation at 30 CFR 816.101 was suspended on
July 31, 1992 (57 FR 33874), in compliance with a Joint Stipulation of
Dismissal dated April 16, 1992, entered by the United States District
Court for the District of Columbia in National Coal Association and
American Mining Congress v. U.S. Department of the Interior, et al.,
Civil No. 92-0408-CRR. The impact of this suspension is that all coal
mining operations are subject to the State-specific contemporaneous
reclamation rules currently in effect.
In addition, Iowa, at IAC 27-40.63(2), proposes to delete the last
sentence of 30 CFR 816.100, concerning contemporaneous reclamation,
from its incorporation by reference of 30 CFR Part 816, and replace it
with the requirement that:
Contemporaneous reclamation shall not exceed 180 days following
coal removal and shall not be more than four spoil ridges behind the
pit being worked, the spoil from the active pit being considered the
first ridge. The regulatory authority may grant additional time for
rough backfilling and grading if the permittee can demonstrate,
through a detailed written analysis under 30 CFR 780.18(b)(3), that
additional time is necessary.
Since the Federal provision at 30 CFR 816.100 only contains one
sentence, the Director interprets Iowa's intent to be a complete
deletion of the Federal provision at 30 CFR 816.100.
The State's proposed substitute language for 30 CFR 816.100 is
substantively the same as the language found in the Federal regulations
at 30 CFR 816.101 (a)(2) and (b). The combination of the State's
proposed substitute language for 30 CFR 816.100 and the incorporation
of 30 CFR 816.101, will provide the Iowa program with backfilling and
grading time and distance performance standards.
Iowa's deletion of 30 CFR 816.100 which requires backfilling,
grading, topsoil replacement, and revegetation to occur as
contemporaneously as practicable on all lands disturbed by surface
mining activities, does not render Iowa's program less effective than
the Federal program because contemporaneous reclamation requirements
are found elsewhere in the Iowa program.
As discussed above, the Iowa program contains time and distance
performance standards for backfilling and grading. Moreover, the
contemporaneous reclamation requirement for revegetation, incorporated
by reference by Iowa at IAC 27-40.63(207), is provided for at 30 CFR
816.113.
With regard to the requirement of 30 CFR 816.100 that topsoil
replacement occur as contemporaneously as practicable with mining
operations, while there is no specific State counterpart provision,
logic maintains that if revegetation is completed contemporaneously,
topsoil replacement, which must be done prior to revegetation, is also
contemporaneous. Nevertheless, the Director finds that, in order to be
no less effective than the requirements of the Federal regulations at
30 CFR 816.100, Iowa must amend its program to explicitly require that
topsoil replacement occur as contemporaneously as practicable with
mining operations.
Therefore, the Director finds Iowa's proposed rule at IAC 27-
40.63(2) to be no less effective than the Federal program and is
approving it. The Director also finds that Iowa's incorporation of the
Federal regulation at 30 CFR 816.101 does not render its program less
effective than the Federal program and is approving it. However, the
Director is requiring Iowa to further amend its program to explicitly
require that topsoil replacement occur as contemporaneously as
practicable with mining operations.
24. IAC 27-40.63(207) and 27-40.64(207), Design Criteria for the
Construction or Modification of Coal Mine Waste Refuse Piles
Iowa proposes to revise its rules at IAC 27-40.63(207) and 27-
40.64(207) by incorporating by reference the Federal regulations at 30
CFR Parts 816 and 817, including 30 CFR 816.83 and 817.83, as they
existed on July 1, 1992.
Iowa's current rules, approved by the Director in a November 6,
1991, rulemaking (56 FR 56578), incorporate the Federal regulations at
30 CFR 816.83 and 817.83 as they existed on July 1, 1987, including the
editorial notes at the end of these regulations. These editorial notes
state that 30 CFR 816.83 and 817.83 are suspended insofar as they
``permit the construction of coal refuse piles using lifts of greater
than 2 feet thickness.'' The Director, in the same November 6, 1991,
rulemaking, placed a required program amendment on Iowa's program at 30
CFR 915.16(a)(10). This required program amendment directed Iowa to
amend its rules to provide design criteria, specifically, for lift
thickness and long-term stability. Iowa has chosen, instead, to
incorporate the current Federal regulations at 30 CFR 816.83 and
817.83, as reinstated on June 9, 1988 (53 FR 21764, 21765-21766), that
do not impose specific design criteria for lift thickness and long-term
stability, but instead impose performance standards to assure
stability.
The Director finds that Iowa's proposed revision at IAC 27-
40.63(207) and 27-40.64(207) regarding design criteria for the
construction or modification of coal mine waste refuse piles is no less
effective than the Federal regulations and is approving them.
Consequently, the Director is removing the required program amendment
at 30 CFR 915.16(a)(10).
25. IAC 27-40.63(9), Impoundment Inspections
Iowa proposes to revise its rules at 27-40.63(9) by adding the
following sentence to 30 CFR 816.49(a)(10)(i), as incorporated by
reference into the State program: ``Yearly inspection of the
impoundments shall be done in the second quarter of each calendar year,
and the inspection report shall be submitted to the Division with the
second quarter water monitoring report.'' The Division, by adopting
this revision, is fixing the time of the yearly inspections.
The corresponding Federal regulation requires a yearly inspection
but does not set a specific time that the yearly inspection must be
conducted. Therefore, the State regulatory authority is implicitly
given the discretion to provide for such specific time frames.
Therefore, the Director finds Iowa's proposed revision at IAC 27-
40.63(9) to be no less effective than the counterpart Federal
regulation and is approving it.
26. IAC 27-40.63(12), Disposal of Noncoal Mine Wastes
Iowa proposes to revise its rules at IAC 27-40.63(12) by deleting
30 CFR 816.89, dealing with disposal of noncoal mine wastes, from the
State's incorporation by reference of 30 CFR Part 816 and inserting, in
lieu thereof, the following:
(a) Noncoal mine wastes including, but not limited to, grease,
garbage, abandoned mining machinery, lumber and other combustible
materials generated during mining activities shall be placed and
stored in a controlled manner in a landfill permitted by the Iowa
department of natural resources (DNR) pursuant to 561 IAC 101, 102,
and 103. Lubricants, paints, and flammable liquids may not be buried
in the State of Iowa but, along with and (sic) other toxic wastes,
must be disposed of in the legally prescribed manner. Iowa law
prohibits final disposal of noncoal wastes within the permit area.
Pending final disposal at a permitted DNR facility, noncoal mine
waste shall be placed and stored in a controlled manner in a
designated portion of the permit area so as to ensure that leachate
and surface runoff do not degrade surface or ground water, that
fires are prevented and that the area remains stable and suitable
for reclamation and revegetation compatible with the natural
surroundings.
Noncoal mine waste shall at no time be deposited in a refuse
pile or impounding structure.
No excavation for or storage of noncoal mine waste shall be
located within eight feet of any coal outcrop or coal storage area.
(b) Final disposal of noncoal mine wastes shall be in a
designated, State-approved solid waste disposal site permitted by
the Iowa department of natural resources pursuant to 561 IAC 101,
102, and 103.
(c) Notwithstanding any other provision in this chapter, any
noncoal mine waste defined as ``hazardous'' under section 3001 of
the resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 as
amendment) and 40 CFR Part 261 shall be handled in accordance with
the requirements of Subtitle C of RCRA and any implementing
regulations.
The State proposal differs from the Federal provision at 30 CFR
816.89 in several respects. First, Iowa's proposed rule makes it clear
that, in Iowa, lubricants, paints, and flammable liquids may not be
buried and must be disposed of in the legally prescribed manner. This
difference between the State and the Federal provisions does not render
the State program less effective in meeting SMCRA's requirements than
the Federal regulation since the Federal provision at 30 CFR 816.89(b)
explicitly provides that operation of a disposal site shall be
conducted in accordance with all local, State, and Federal
requirements.
Second, Iowa's proposed rule also makes it clear that there can be
no final disposal of noncoal wastes within the permit area. Instead,
final disposal of noncoal mine wastes must be in a landfill permitted
by the Iowa Department of Natural Resources. This provision of the Iowa
program is no less effective in meeting SMCRA's requirements than the
Federal counterpart provisions since the Federal provision at 30 CFR
816.89(b) requires that final disposal of noncoal mine waste shall be
in a designated disposal site in the permit area or a State-approved
solid waste disposal area.
Third, at subsection (c), the Iowa proposal requires that any
noncoal mine waste defined as ``hazardous'' under section 3001 of the
Resource Conservation and Recovery Act (RCRA) and the Federal
regulations at 40 CFR Part 261 shall be handled in accordance with the
requirements of Subtitle C of RCRA and any implementing regulations.
This portion of the Iowa proposal is substantively similar to a former
Federal provision that existed at 30 CFR 816/817.89(d). See (48 FR
43994, 44006) September 26, 1983. The Federal provision was suspended
on November 20, 1986 (51 FR 41952, 41962) to implement the decision of
the U.S. District Court for the District of Columbia in In re:
Permanent Surface Min. Regulation Litigation, 620 F. Supp. 1519, 1538
(D.D.C. 1985). The court remanded the rule because OSM failed to comply
with the public notice and comment requirements of the Administrative
Procedure Act, 5 U.S.C. Secs. 500-706, in promulgation of the Federal
provision.
OSM subsequently deleted 30 CFR 816/817.89(d) in the Federal
Register notice dated December 17, 1991 (56 FR 65612, 65635-65636). As
discussed in the December 17, 1991, Federal Register notice, in
deleting the provision, OSM reasoned that Congress had assigned
permitting, inspection, and enforcement responsibilities under RCRA to
the Environmental Protection Agency (EPA) and that SMCRA did not
require OSM or the State regulatory authorities to assume such
responsibilities. It was further reasoned that Congress would not
appropriate funds to OSM or State regulatory authorities for this task.
With the deletion of this requirement, OSM stated that it would
continue ``consistent with its jurisdiction under the Act, to
coordinate its regulatory program with EPA to facilitate the
implementation of RCRA regulations.'' However, OSM's action does not
prohibit or prevent a State regulatory authority from choosing to
assume such responsibilities in coordination with EPA. Under section
505(b) of SMCRA and 30 CFR 730.11, the State regulatory authority has
the discretion to impose land use and environmental controls and
regulations on surface coal mining and reclamation operations for which
no Federal counterpart provision exists. Section 505(b) and 30 CFR
730.11 dictate that such State provisions shall not be construed to be
inconsistent with the Federal program.
Because there is no Federal counterpart provision to the paragraph
(c) of proposed IAC 27-40.63(12), OSM evaluated Iowa's proposal based
upon its consistency with section 515(b)(14) of SMCRA. Section
515(b)(14) of SMCRA generally requires that all debris, acid-forming
materials, toxic materials, or materials constituting a fire hazard,
are to be treated or buried and compacted or otherwise disposed of in a
manner designed to prevent contamination of ground or surface waters.
Because Iowa's proposal here provides for the handling and disposal of
``hazardous'' noncoal mine wastes in a manner designed to prevent
contamination of ground or surface waters, i.e., pursuant to the
provisions of subtitle C of RCRA, the Director finds that Iowa's
proposed provision at paragraph (c) of proposed IAC 27-40.63(12) is not
inconsistent with section 515(b)(14) of SMCRA and is approving the
provision.
In summary, then, the Director finds that Iowa's proposed revisions
at IAC 27-40.63(12) are consistent with SMCRA and the Federal
regulations and is approving them. The Director, by way of this notice,
is requesting that Iowa correct a typographical error in its rule in
the phrase ``along with and other toxic wastes.'' The word ``and''
should be corrected to read ``any.''
27. IAC 27-40.68, Special Permanent Program Performance Standards--In
Situ Mining
Iowa proposes, at IAC 27-40.68, to delete the incorporation by
reference of 30 CFR Part 828, dealing with performance standards for in
situ mining operations, and to reserve IAC 27-40.68. Therefore, in situ
mining operations are prohibited in Iowa and the State cannot approve
any such operations since there are no rules to govern such operations.
In accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the
State regulatory authority has the discretion to impose land use and
environmental control and regulations on surface coal mining and
reclamation operations that are more stringent than those imposed under
SMCRA and the Federal regulations. Section 505(b) of SMCRA and 30 CFR
730.11 dictate that such provisions shall not be construed to be
inconsistent with the Federal program. Therefore, the Director is
approving the proposed revision at IAC 27-40.68.
28. IAC 27-40.71(4), State Regulatory Authority--Inspection and
Enforcement, and 27-40.74(3), Civil Penalties
Iowa proposes, at IAC 27-40.71(4) and IAC 27-40.74(3), to delete
from its incorporation by reference of 30 CFR 840.11(g)(3)(ii) and
845.15(b)(2) the phrase ``sections 518(e), 518(f), 521(a)(4) or 521(c)
of the Act'' and replace it with ``Iowa Code sections 207.15, 207.15,
207.14 and 207.14,'' respectively.
The proposed State substitute citations are not exact counterpart
provisions to the provisions of SMCRA referenced at 30 CFR
840.11(g)(3)(ii) and 845.15(b)(2).
Iowa, in a letter dated August 30, 1993 (Administrative Record No.
IA-389), proposed to editorially clarify its program at IAC 27-40.71(4)
by providing alternate State substitute citations that are the exact
counterparts to the Federal provisions cited at 30 CFR
840.11(g)(3)(ii). Therefore, the Federal Citations at sections 518(e),
518(f), 521(a)(4) and 521(c) of SMCRA are proposed to be replaced by
Iowa Code subsections 207.15(6), 207.15(7), 207.14(3), and 207.14(8),
respectively.
The Director finds Iowa's proposed revision at IAC 27-40.71(4) to
be no less effective than the Federal counterpart regulation and is
approving it. However, the Director finds that the State proposal at
IAC 27-40.74(3) is less effective than its Federal counterpart
provision. The Federal provision at 30 CFR 845.15(b)(2) refers to very
specific enforcement procedures that the regulatory authority should
take under particular circumstances. In contrast, the State proposal at
IAC 27-40.74(3) merely refers to the statutory sections of the Iowa
program dealing with enforcement in general. Therefore, the Director is
not approving the proposed revision at IAC 27-40.74(3). Iowa is
required to amend its program by providing the same specific editorial
citation corrections at IAC 27-40.74(3) as it did at IAC 27/40.71(4).
29. IAC 27-40.74(207) and (8), Use of Civil Penalties for Reclamation
Iowa proposes, at IAC 27-40.74(207), to incorporate 30 CFR Part 845
as in effect on July 1, 1992. This incorporation by reference includes
30 CFR 845.21 which deals with the use of Federal funds collected from
civil penalties by OSM for reclamation. The Director recognizes that 30
CFR 845.21 deals with the disbursement of money collected by the United
States from the assessment of civil penalties and does not have
application within the State program.
Iowa also proposes to revise its rules at IAC 27-40.74 by adding a
paragraph (8) which provides as follows:
Use of civil penalties for reclamation. In accordance with Iowa
Code section 207.10(6), the division may expend funds collected from
civil penalties to perform reclamation work on sites where the bond
has been forfeited and additional funds are needed to complete the
reclamation of the site.
The Federal regulations at 30 CFR 845.21 address only how the
Federal government is to allocate its funds. Therefore, Iowa has
discretion as to how it spends its monies collected from civil
penalties.
Accordingly, the Director finds Iowa's proposed rule at IAC 27-
40.74(8) not to be inconsistent with the Federal program and is
approving it.
30. IAC 27-40.74(5)a., Procedures for Assessment Conference
Iowa proposes, at IAC 27-40.74(5)a. to revise its rule by changing
the number of days that a person who was issued a notice of assessment
has to provide written request for an assessment conference to review
the proposed assessment. Iowa proposes to increase the timeframe from
15 days from the date the notice of assessment was mailed to 30 days
from the date the notice of assessment was mailed.
The Federal regulation at 30 CFR 845.18 allows the person to
request an assessment conference within 30 days from the date that the
proposed assessment is received. Since the number of days within which
a person may request an assessment conference is a procedural matter,
Iowa's proposal must be evaluated from the point of view of its
similarity to the Federal rules in affording rights and remedies to
persons. See (46 FR 53376) October 28, 1981.
The Director finds that the time difference between the date of
mailing versus the date of receipt is minor enough to be considered
similar and, therefore, finds the proposed revision at IAC 27-40.74(5)
to be no less effective than the Federal regulation and is approving
it.
31. IAC 27-40.75(207), Individual Civil Penalties
Iowa proposes, at IAC 27-40.75(207), to incorporate by reference
the Federal regulations at 30 CFR Part 846 as in effect on July 1,
1992, dealing with individual civil penalties. Some exceptions to this
incorporation by reference are proposed and are discussed below.
a. Scope. Iowa proposes, at IAC 27-40.75(1), to delete from
incorporation by reference, the Federal regulation at 30 CFR 846.1,
Scope. This provision merely states that Part 846 covers assessment of
individual civil penalties (ICP's) under section 518(f) of the Act. It
does not set out any separate substantive requirement relating to
ICP's. The Director, therefore, finds that the proposed revision at IAC
27-40.75(1) does not render Iowa's program less effective than the
Federal program and is approving it.
b. Violation, failure or refusal. Iowa proposes, at IAC 27-
40.75(2), to delete paragraphs (1) and (2) from the definition of
``violation, failure or refusal'' at 30 CFR 846.5, and insert in lieu
thereof, substitute paragraphs (1) and (2). Iowa's proposed language is
substantively similar to the deleted Federal language except that,
where the Federal regulation provides the specific statutory cite of
section 518(b) of the Act as being excepted from failure or refusal to
comply with orders, Iowa substitutes a general reference to Iowa Code
section 207.15.
As explained in the preamble to the final rule for 30 CFR 846.5 (53
FR 3664, 3666, February 8, 1988), the specific exception for orders
issued pursuant to section 518(b) of the Act in the definition of
violation, failure or refusal is required by section 518(f) of SMCRA:
Section 518(f) specifically prohibits the Secretary from
assessing penalties for failure to comply with an order incorporated
in a civil penalty decision rendered under section 518(b),
presumably because it would be counter-productive to assess an
individual civil penalty for the nonpayment of the original civil
penalty assessed against the corporate permittee.
Both section 518 of SMCRA and the State counterpart provision at
Iowa Code section 207.15 cover more than just the original civil
penalty assessed against the corporate permittee. Accordingly, Iowa's
proposal to completely exempt all orders issued under Iowa code section
207.15 is less effective in meeting SMCRA's requirements than the
Federal rule because section 518(f) exempts only one particular type of
order issued under section 518. The Director is not approving Iowa's
proposed revision at IAC 27-40.75(2) to the extent that Iowa's proposed
rule provides for the exemption of all orders issued under Iowa Code
section 207.15.
c. Service. Iowa proposes, at IAC 27-40.75(4), to delete from its
incorporation by reference the Federal regulation at 30 CFR 846.17(c),
dealing with service of civil penalty assessments, and insert in lieu
thereof the following:
Service. For purposes of this section, service is sufficient if
it would satisfy Division III of the Iowa rules of civil procedure
for service of an original notice and petition.
Iowa provided OSM with a copy of the service requirements from the
Division III of the Iowa Rules of Civil Procedure for review
(Administrative Record No. IA-383).
Upon review, the Director finds that the Division III of the Iowa
Rules of Civil Procedure for service of an original notice and petition
provision is the State counterpart provision to rule 4 of the Federal
Rules of Civil Procedure. The Director notes that Division III of the
Iowa Rules of Civil Procedure, unlike 30 CFR 846.17(c), does not appear
to normally allow service to be performed on the individual to be
assessed an individual civil penalty by certified mail. Proposed State
alternatives to procedural rules contained in the Federal regulations
are evaluated ``from the point of view of their similarity to the
Secretary's rules in affording rights and remedies to persons'' (46 FR
53376, October 28, 1981). The Director finds that the State proposal
affords additional procedural rights and remedies to persons by not
allowing service by certified mail. Accordingly, the Director finds
that Division III of the Iowa Rules of Civil Procedure is not
inconsistent with the Federal program and is approving it. The Director
also finds that the IAC 27-40.75(4) incorporation of Division III of
the Iowa Rules of Civil Procedure does not render its program less
effective than the Federal regulation at 30 CFR 846.17(c) and is
approving it as well.
IV. Public and Agency Comments
Public Comments
For a complete history of the opportunity provided for public
comment on the proposed amendment, please refer to ``Submission of
Amendment.'' Because no one requested an opportunity to testify at a
public hearing, no hearing was held. No public comments were received.
Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), comments were solicited from
the Administrator of the Environmental Protection Agency (EPA), and
various other Federal agencies with an actual or potential interest in
the Iowa program. Comments were also solicited from various State
agencies.
Environmental Protection Agency (EPA) Concurrence
Pursuant to 30 CFR 732.17(h)(11)(ii), concurrence was solicited
from the EPA for those aspects of the proposed amendment that relate to
air or water quality standards promulgated under the authority of the
Clean Water Act and the Clean Air Act.
By letter dated January 4, 1993 (Administrative Record No. IA-376),
the EPA regional office in Kansas City, Kansas responded that it had no
comment.
By letter dated October 19, 1993 (Administrative Record No. IA-
392), the EPA headquarters office in Washington, D.C. concurred with
Iowa's proposed amendment as it related to air or water quality
standards promulgated under the authority of the Clean Water Act and
the Clean Air Act.
No other agencies commented on the proposed amendment.
State Historic Preservation Officer (SHPO) and Advisory Council on
Historic Preservation Comments (ACHP)
30 CFR 732.17(h)(4) requires that all amendments that may have an
effect on historic properties be provided to the SHPO and ACHP for
comment. Comments were solicited from these offices. No comments were
received from SHPO or ACHP.
V. Director's Decision
Based on the above findings, the Director is approving the proposed
amendment submitted by Iowa on November 23, 1992, and revised on July
21, 1993, with the exception of those provisions found to be
inconsistent with SMCRA or the Federal regulations and identified in
the codified portion of this notice under 30 CFR 915.16(b).
The Director is not approving certain provisions of the Iowa
amendment for reasons set forth in Findings: no. 13b, IAC 27-40.31(14),
concerning willful suppressing or falsifying of facts in permit
applications: no. 14a, IAC 27-40.32(1), concerning guidelines for
permit revisions and amendments; no. 22, IAC 27-40.51(7), concerning
bond release applications, no. 28, IAC 27-40.71(4), concerning
enforcement procedures; and no. 31b, IAC 27-40.75(2), concerning the
definition of violation, failure or refusal.
The Director is approving but requiring Iowa to further amend its
regulations as discussed in Findings: no. 8, IAC 27-40.3(207),
concerning petitions to initiate rulemaking; no. 9, IAC 27-40.4(9),
concerning the definition of ``previously mined area;'' and no. 23, IAC
27-40.63(207) and (2), concerning contemporaneous reclamation,
backfilling and grading time and distance requirements.
The Director is approving the Iowa proposed rules with the
provision that they be fully promulgated in identical form to the rules
submitted to and reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 915 codifying decisions
concerning the Iowa 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. Effect of Director's Decision
Section 503 of SMCRA provides that a State may not excercise
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 732.17(g) prohibit
any unilateral changes to approved State programs. In the oversight of
the Iowa program, the Director will recognize only the statutes,
regulations, and other materials approved by OSM, together with any
consistent implementing policies, directives, and other materials, and
will require the enforcement by Iowa of only such provisions.
VII. Procedural Determinations
Compliance with 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 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 12550) and the Federal regulations at 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.
Compliance With Executive Order 12866
This final rule is exempted from review by the Office of Management
and Budget under Executive Order 12866 (Regulatory Planning and
Review).
Compliance With the 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 the Office of Management and Budget under the
Paperwork Reduction Act, 44 U.S.C. 3507 et seq.
Compliance With the 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. Hence, 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.
VIII. List of Subjects in 30 CFR Part 915
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 28, 1994.
Raymond L. Lowrie,
Assistant Director, Western 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 915--IOWA
1. The authority citation for Part 915 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 915.15 is amended by adding paragraph (j) to read as
follows:
915.15 Approval of regulatory program amendments.
* * * * *
(j) With the exceptions of IAC 27-40.31(14), concerning willfull
suppressing or falsifying of facts in permit applications, IAC 27-
40.32(1), concerning guidelines for permit revisions and amendments,
IAC 27-40.51(7), concerning bond release applications, and IAC 27-
40.75(2), concerning the definition of violation, failure or refusal,
the following revisions to the Iowa Administrative Code submitted to
OSM on November 23, 1992, as revised on July 8, 1993, are approved
effective February 8, 1994.
IAC 27-40.1, Authority and scope; 27-40.3, General; 27-40.4,
Permanent regulatory program and exemption for coal extraction
incidental to the extraction of other minerals; 27-40.5, Restrictions
on financial interests of State employees; 27-40.6, Exemptions for coal
extraction incident to government-financed highway or other
constructions; 27-40.7, Protection of employees; 27-40.11, Initial
regulatory program; 27-40.12, General performance standards--initial
program; 27-40.13, Special performance standards--initial program; 27-
40.21, Areas designated by an Act of Congress; 27-40.22, Criteria for
designating areas as unsuitable for surface coal mining operations; 27-
40.23, State procedures for designating areas unsuitable for surface
coal mining operations; 27-40.30, Requirements for coal exploration;
27-40.31, Requirements for permits and permit processing; 27-40.32,
Revision; renewal; and transfer, assignment, or sale of permit rights;
27-40.33, General content requirements for permit applications; 27-
40.34, Permit application--minimum requirements for legal, financial,
compliance, and related information; 27-40.35, Surface mining permit
applications--minimum requirements for information on environmental
resources; 27-40.36, Surface mining permit applications--minimum
requirements for reclamation and operation plan; 27-40.37, Underground
mining permit applications--minimum requirements for information on
environmental resources; 27-40.38, Underground mining permit
applications--minimum requirements for reclamation and operation plan;
27-40.39, Requirements for permits for special categories of mining;
27-40.41, Permanent regulatory program--small operator assistance
program; 27-40.51, Bond and insurance requirements for surface coal
mining and reclamation operations under regulatory programs; 27-40.61,
Permanent program performance standards--general provisions; 27-40.62,
Permanent program standards--coal exploration; 27-40.63, Permanent
program standards--surface mining activities; 27-40.64, Permanent
program standards--underground mining activities; 27-40.65, Special
permanent program standards--auger mining; 27-40.66, Special permanent
program standards--operations on prime farmland; 27-40.67, Special
permanent program standards--coal preparation plants not located within
the permit area of a mine; 27-40.68, Special permanent program
standards--in situ processing; 27-40.71, State regulatory authority--
inspection and enforcement; 27-40.73, Enforcement; 27-40.74, Civil
penalties; 27-40.75 Individual civil penalties; 27-40.81, Permanent
regulatory program requirements--standards for certification of
blasters; 27-40.82, Certification of blasters; and 27-40.92, Contested
cases.
3. Section 915.16 is amended by revising paragraph (a) introductory
text and paragraph (a)(1), removing and reserving paragraphs (a)(2)-
(a)(4), revising paragraph (a)(5), removing and reserving paragraphs
(a)(6)-(a)(21) and by adding paragraph (b) to read as follows:
Sec. 915.16 Required program amendments.
(a) By April 11, 1994, Iowa shall amend its program at:
* * * * *
(1) IAC 27-40(9) by providing a definition of ``previously mined
area'' that is no less effective than the current Federal definition at
30 CFR 701.5.
* * * * *
(5) IAC 27-40.32(1) by requiring that the Federal regulations at 30
CFR 773.13, 773.19(b) (1) and (3), and 778.21 apply, at a minimum, to
all significant permit revisions.
* * * * *
(b) By April 11, 1994, Iowa shall amend its program at:
(1) IAC 27-40.3(207) by providing a rule reference to IAC 21-3 as
the source for procedures regarding petitions for initiating
rulemaking.
(2) IAC 27-40.63(207) and (2), by explicitly requiring that topsoil
replacement occur as contemporaneously as practicable with mining
operations.
(3) IAC 27-40.74(3) by providing exact State counterpart provisions
to the provisions of SMCRA referenced at 30 CFR 845.15(b)(2).
[FR Doc. 94-2729 Filed 2-7-94; 8:45 am]
BILLING CODE 4310-05-M
