[Federal Register Volume 60, Number 66 (Thursday, April 6, 1995)]
[Rules and Regulations]
[Pages 17458-17464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8465]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 915
Iowa Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the Iowa regulatory
program (hereinafter referred to as the ``Iowa program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Iowa
proposed revisions to rules pertaining to rulemaking petitions,
definitions, permit processing, permit revisions, bonding, backfilling
and grading, alternative enforcement, and individual civil penalties.
The amendment is intended to revise the Iowa program to be consistent
with the [[Page 17459]] corresponding Federal standards, to clarify
ambiguities, and to improve operational efficiency.
EFFECTIVE DATE: April 6, 1995.
FOR FURTHER INFORMATION CONTACT:
Michael C. Wolfrom, Telephone: (816) 374-6405.
SUPPLEMENTARY INFORMATION:
I. Background on the Iowa Program
On January 21, 1981, the Secretary of the 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. Proposed Amendment
By letter dated April 13, 1994, Iowa submitted a proposed amendment
to its program pursuant to SMCRA (Administrative Record No. IA-397).
Iowa submitted the proposed amendment with the intent of satisfying the
required program amendments codified at 30 CFR 915.6 (a) and (b), and
at Iowa's own initiative to improve the operation of its program. The
provisions of the Iowa Administrative Code (IAC) that Iowa proposed to
revise were: IAC 27-40.3(207), 27-40.4(9), 27-40.31(14), 27-40.32(207),
27-40.51(7), 27-40.63(2), 27-40.74(3), and 27-40.75(2).
OSM announced receipt of the proposed amendment in the May 5, 1994,
Federal Register (59 FR 23177), provided an opportunity for a public
hearing or meeting on its substantive adequacy, and invited public
comment on its adequacy (Administrative Record No. IA-402). Because no
one requested a public hearing or meeting, none was held. The public
comment period ended on June 6, 1994.
During its review of the amendment, OSM identified concerns
relating to the provisions of IAC 27-40.32 (permit revisions), 27-
40.51(7) (application for bond release), and 27-40.75(2) (individual
civil penalties). OSM notified Iowa of the concerns by issue letter
dated October 3, 1994 (Administrative Record No. IA-407).
Iowa responded in a letter dated November 8, 1994, by submitting a
revised amendment (Administrative Record No. IA-408). Iowa proposed
additional revisions to IAC 27-40.32 (permit revisions), 27-40.51(7)
(bond release application), and 27-40.75(2) (individual civil
penalties).
Based upon the revisions to the proposed program amendment
submitted by Iowa, OSM reopened the public comment period in the
November 23, 1994, Federal Register (59 FR 60341; Administrative Record
No. IA-410). The public comment period ended on December 8, 1994.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds that the proposed program amendment
submitted by Iowa on April 13, 1994, and as revised by it on November
8, 1994, is no less effective than the corresponding Federal
regulations in meeting SMCRA's requirements. Accordingly, the Director
approves the proposed amendment.
1. Nonsubstantive Revisions to Iowa's Rules
Iowa proposed revisions to the following previously-approved rules
that are nonsubstantive in nature and consist of minor editorial and
recodification changes (corresponding Federal regulation provisions are
listed in parentheses):
IAC 27-40.32(3)a. 3. & 4. (no corresponding Federal provisions),
requirements for permit amendment or revision;
IAC 27-40.32(5) (30 CFR 773.11(a)), permit renewal not required when
only Phase III bond liability remains on the permit area;
IAC 27-40.32(6) (no corresponding Federal provision, additions to the
Federal requirements at 30 CFR 774.15(b)), contents of permit renewal
application; and
IAC 27-40.32(7) (no corresponding Federal provision), modification of
the incorporation of Federal regulations by reference so that they cite
the correct regulatory authority.
Because the proposed revisions to these previously-approved rules
are nonsubstantive in nature, the Director finds that these proposed
revisions to the Iowa rules are no less effective than the Federal
regulations in meeting SMCRA's requirements, and approves these
proposed revisions.
2. Substantive Revisions to Iowa's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
Iowa proposed revisions to the following rules that are substantive
in nature and contain language that is substantively identical to the
requirements of the corresponding Federal regulation provisions (listed
in parentheses).
IAC 27-40.4(9) (30 CFR 701.5, definition of ``previously mined area'').
IAC 27-40.32(3)a. (introductory text) (30 CFR 774.13(a)), permittee
right to submit application for permit revision/amendment.
IAC 27-40.32(3)a.2. (30 CFR 774.11 (b) & (c)), right of regulatory
authority to order permit revision/amendment, and administrative and
judicial review of such orders.
Because these proposed Iowa rules are substantively identical to
the corresponding provisions of the Federal regulations, the Director
finds that they are no less effective than the Federal regulations in
meeting SMCRA's requirements and approves these proposed revisions.
The Director further notes that the revision to IAC 27-40.4(9)
(definition of ``previously mined area'') satisfies a required program
amendment codified at 30 CFR 915.16(a)(1) that was imposed on November
6, 1991 (56 FR 56578, 56594), and is removing this requirement.
3. IAC 27-40.3(207). General Provisions of Regulatory Program
Iowa proposes to add a new paragraph providing that ``[i]n lieu of
the regulations deleted at 30 CFR 700.12 concerning `Petitions to
initiate rulemaking,' rules of the Iowa Department of Agriculture and
Land Stewardship at 21 IAC Chapter 3, `Petitions for Rulemaking' shall
serve as the basis for submitting petitions to initiative rulemaking.''
Iowa had previously submitted the referenced rules as part of an
earlier program amendment, and OSM found them to be no less effective
than the Federal regulations at 30 CFR 700.12 that Iowa chose not to
incorporate by reference in its program. However, in that earlier
amendment Iowa was required to further amend its program to include a
clear reference to these State rules within its regulatory program (see
59 FR 5709, 5712; February 8, 1994; Finding No. 8). The Director finds
that Iowa's current proposed program amendment clearly informs the
public of where to locate the procedures and requirements for petitions
for rulemaking under the Iowa regulatory program, and approves the
proposal. Additionally, the proposal satisfies a required program
amendment codified at 30 CFR 915.16(b)(1) that was imposed on February
8, 1994 (59 FR 5709, 5723); therefore the Director is removing this
requirement.
[[Page 17460]]
4. IAC 27-40.31(14). Requirements for Permits and Permit Processing
Iowa proposes to delete and reserve this subrule, which adds to
Iowa's incorporation by reference of 30 CFR 773.15(a)(2) the words
``[i]n case willful suppressing or falsifying of any facts or data is
identified, the division may require the applicant to reapply for the
same area.'' OSM notes that 30 CFR 773.15(a)(2) provides that in the
review of applications for permits or permit revisions, the applicant
has the burden of proof that the application is in compliance with all
requirements of the regulatory program.
Iowa previously proposed this added language in a program
amendment, but OSM found that under SMCRA Section 510(b)(1) and 30 CFR
773.15(c)(1) (Iowa counterpart provisions at Iowa Code 207.9(2)(a) and
(IAC 27-40.31), if such willful suppressing or falsification of any
facts or data in a permit application is identified, the regulatory
authority would have no discretion and would be required to deny the
permit. OSM thus found this Iowa subrule to conflict with SMCRA and the
Federal regulations, and did not approve this subrule (see 59 FR 5709,
5714; February 8, 1994; Finding No. 13b). Iowa, in response, is now
proposing to delete this unapproved language. OSM notes that the Iowa
program, in the general incorporation by reference at IAC 27-40.31(207)
of the Federal regulations at 30 CFR Part 773, continues to incorporate
30 CFR 773.15(a)(2) by reference. For the reasons specified in the
February 8, 1994, Federal Register, the Director finds that the
proposed deletion of this added language is not inconsistent with SMCRA
or the Federal regulations, and is approving the deletion.
5. IAC 27-40.32(207). Permit Revision/Amendment, Renewal, Transfer
Iowa proposes to delete its incorporation by reference of the
Federal regulations at 30 CFR Part 774, as in effect on July 1, 1992
(with some exceptions and additions), and to add a new incorporation by
reference of those same Federal regulations, but with a different set
of exceptions and additions. Some of these new exceptions and additions
are substantively the same as the old exceptions and additions, and
have been addressed in Finding No. 1 above; others of the new additions
are substantively the same as certain Federal regulatory provisions,
and have been addressed in Finding No. 2 above; and the remainder of
the exceptions and additions are discussed below.
a. IAC 27-40.32(1) Permit Revision/Amendment Orders
Iowa proposes at IAC 27-40.32(1) not to incorporate into its
program by reference the Federal requirements at 30 CFR 774.11 (b) and
(c). However, as noted in Funding No. 2 above, Iowa is also proposing
to add at IAC 27-40.32(3)a.2. requirements that are substantively the
same as these Federal requirements. Therefore the Director approves the
proposal at IAC 27-40.32(1) to delete 30 CFR 774.11 (b) and (c) from
the new incorporation by reference.
b. IAC 27-40.32(2) Revisions Versus Amendments
Iowa proposes to use the term ``revision''; to describe changes to
permits that constitute significant departures from the approved
permit, and to use the term ``amendment'' to describe changes that do
not constitute significant departures. Iowa further proposes that
significant departures shall be any change in permit area, mining
method or reclamation procedure which would, in the opinion of the Iowa
regulatory authority, significantly change the effect that mining
operations would have on persons impacted by the permitted operation,
on cultural resources, or on the environment. Finally, Iowa proposes to
delete the incorporation by reference of the Federal regulations at 30
CFR 774.13 (permit revisions), except that the notice, public
participation, and notice of decision requirements of 30 CFR 773.13,
773.19(b), and 778.21 would apply to all ``revisions'' (i.e., to all
significant departures). A related requirement at proposed IAC 227-
40.32(3)c. would require that any application for either revision or
amendment must provide replacement documentation fully describing the
proposed changes, in the same detail as required in the original
permit.
The Federal regulations at 30 CFR 774.13(b)(2) require regulatory
authorities to establish guidelines which establish the scale or extent
of permit revisions for which all of the permit application information
requirements and permit application procedures of the Federal
regulations (including the notice, public participation, and notice of
decision requirements of Secs. 773.13, 773.19(b) (1) & (3), and 778.21)
shall apply, with the proviso that such requirements and procedures
must apply at a minimum to all significant revisions.
The Director finds that Iowa, by (1) defining ``revision'' and
``amendment,'' (2) requiring that the specified procedural requirements
(notice, public participation, etc.) apply to all ``revisions,'' and
(3) requiring that revision and amendment applications contain
replacement documentations in the same detail as the original permit,
has established guidelines as required by 30 CFR 774.13(b)(2). Further,
Iowa's proposed definitions assure that these requirements and
procedures requirements will apply to all significant permit changes,
as required by the proviso in that Federal regulation.
Regarding Iowa's proposal to delete the incorporation by reference
of the Federal regulations at 30 CFR 774.13, OSM has reviewed Iowa's
proposal and has determined that it incorporates counterpart
requirements for each of the provisions of Sec. 774.13 other than the
one specifically discussed above (Sec. 774.13(b)(2)). As discussed in
Finding No. 2 above and Finding No. 5c below, counterparts of those
Federal provisions are incorporated in Iowa's proposed rules as follows
(proposed IAC counterparts in parentheses): Sec. 774.13(a) (IAC 27-
40.32(3)a, introductory text); Sec. 774.13(b)(1) (IAC 27-40.32(3)b.);
Sec. 774.13(c) (IAC 27-40.32(3)d.); and Sec. 774.13(d) (IAC 27-
40.32(3)e.). Based on the discussion in Finding Nos. 2 and 5c regarding
these provisions, the Director finds that Iowa's proposal at IAC 27-
40.32(2) not to incorporate 30 CFR 774.13 does not render the Iowa
program less effective than Sec. 774.13 in meeting SMCRA's
requirements.
In summary, the Director finds Iowa's definitions of ``revision''
and ``amendment'' to be in accordance with the Federal regulations at
30 CFR 774.13(b)(2), and the deletion of the incorporation by reference
of most of 30 CFR 774.13 to be no less effective than the Federal
regulations in meeting SMCRA's requirements; the Director is therefore
approving proposed IAC 27-40.32(2). Additionally, the proposal
satisfies a required program amendment, codified at 30 CFR
915.16(a)(5), that was imposed on November 6, 1991 (56 FR 56578,
56594), and later modified on February 8, 1994 (59 FR 5709, 5723); the
Director is therefore removing this requirement.
c. IAC 27-40.32(3) Requirements for Revisions and Amendments
1. Permit changes that require either a permit revision or a permit
amendment. Iowa proposes at IAC 27-40.32(3)a.1. that either a revision
or an amendment is required for any change in the approved permit;
further, all information related to approved revisions or amendments
must be [[Page 17461]] updated in all public copies of the permit.
The Federal regulations at 30 CFR 774.13 do not directly address
this issue. However, in the preamble to the Federal regulations at 30
CFR 774.13(b)(2), dated September 28, 1993 (48 FR 44344, 44377), OSM
clarified its interpretation of these regulations that all changes must
be approved 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 Director finds Iowa's proposal to be consistent with this
interpretation and is approving the proposal.
2. Timeframes for decisions on applications. Iowa proposes at IAC
27-40.32(3)b. that applications for permit revisions will be approved
or disapproved within 90 days following a determination of
completeness, and that an application for an amendment will be approved
or disapproved within 60 days of submittal of the application.
The Federal regulations at 30 CFR 774.13(b)(1) do not specify
timeframes for action on revision applications, but rather require
regulatory authorities to establish time periods for such approvals or
disapprovals. The Director finds that Iowa's proposal establishes such
time periods and that the time periods will ensure that operators
receive timely decisions. Therefore the Director is approving the
proposal.
3. Administrative and judicial review. Iowa proposes at IAC 27-
40.32(3)c. that: ``[a]ny application for an amendment or a revision
under these rules shall, at a minimum, be subject to the requirements
of Part 9 of these rules * * *.'' OSM notes that Part 9 of Iowa's rules
contains, among other things, the requirements for administrative and
judicial review of Iowa permit actions; it thus contains the Iowa
program counterparts to 30 CFR Part 775 (administrative and judicial
review of permit decisions).
The Federal regulations at 30 CFR 775.11(a) provide that decisions
on applications for any permit revision (whether significant or
insignificant) are subject to administrative review; under section
775.13(a), any administrative review decision (including administrative
review of any permit revision application decision) is subject to
judicial review. The Director finds that Iowa's proposal is consistent
with these requirements and is approving the proposal.
4. Criteria for approval. Iowa proposes to add at IAC 27-40.32(3)d.
three criteria for the approval of applications for permit revisions
and amendments. The criteria proposed are: (1) That no such application
shall be approved unless the application demonstrates, and the Iowa
regulatory authority finds, that the reclamation as required by Iowa's
Act and the regulatory program can be accomplished; (2) that the
application complies with all requirements of the Act and the
regulatory program; and (3) that ``any applicable requirements of
written findings for the permit have also been met.''
The Federal regulations at 30 CFR 774.13(c) require that no
application for a permit revision shall be approved unless the
application demonstrates and the regulatory authority finds: (1) That
reclamation as required by SMCRA and the regulatory program can be
accomplished; (2) that the application complies with all requirements
of SMCRA and the regulatory program; and (3) that ``applicable
requirements under section 773.15(c) which are pertinent to the
revision are met.'' The cited rule, 30 CFR 773.15(c), specifies written
findings for application approval, and, as applied to an application
for a significant revision, requires that the application not be
approved unless the application affirmatively demonstrates, and the
regulatory authority finds in writing, that several specified
requirements, where applicable, have been met.
The first two of Iowa's proposed criteria are substantively the
same as those specified in the Federal regulations. The third
criterion, written findings, is in one way more stringent than the
Federal requirement because it is applied to both revision and
amendment applications, whereas under the Federal regulations this
criterion is applied only to applications for significant revisions.
Under SMCRA section 505(b) and 30 CFR 730.11(b), no State regulation
which provides for more stringent regulation of surface coal mining and
reclamation operations than do the Federal regulations shall be
construed to be inconsistent with SMCRA or with the Federal
regulations.
OSM does not find, however, that this proposed third criterion
(``and any applicable requirements of written findings for the permit
have also been met'') clearly requires that new findings be written (if
applicable) for approval of the amendment or revision. Instead, Iowa's
proposed language could be interpreted to be limited to requiring
consistency of the revision/amendment application with the written
findings of the original permit approval; such an interpretation would
be less effective than the third criterion of the Federal regulation.
However, OSM notes that Iowa added this criterion in its revised
amendment of November 8, 1994 (Administrative Record No. IA-408), which
responded to OSM's letter of October 3, 1994 (Administrative Record No.
IA-407); in that letter, OSM had indicated to Iowa that its initial
submittal was deficient in not containing a counterpart to OSM's
criterion for written findings. In its revised amendment of November 8,
1994, Iowa indicates that this proposed language was intended to
address that deficiency. OSM therefore concludes that Iowa intends its
language to be interpreted in accordance with the requirements of the
Federal regulation criterion; i.e., that Iowa intends that new written
findings are required, if applicable, prior to approving an application
for permit amendment or revision. Based on this understanding, the
Director finds Iowa's proposal at IAC 27-40.32(3)d. to be no less
effective than 30 CFR 774.13(c) in meeting SMCRA's requirements, and
the Director is approving the proposal.
5. Additions of area. Iowa proposes at IAC 27-40.32(3)e. that any
increase in permit area, except incidental boundary revisions
(hereinafter, ``IBR's''), shall not be approved under ``this subrule''
(i.e., neither as a permit revision nor as an amendment), but rather
``shall be treated as'' a new permit application. Iowa additionally
proposes that IBR's are considered as significant departures and hence
shall be treated as revisions;' that a total of 20 acres of IBR's would
be allowed over the life of the permit, with individual increments
subject to approval by Iowa (presumably under other criteria for
determining ``incidental''); and lastly, that applications for IBR's
shall include a demonstration that the proposed additional permit area
is contiguous to the approved permit.
OSM interprets Iowa's proposed language that increases in permit
area (other than IBR's) ``shall be treated as a new permit
application'' to mean that any application for increased area (unless
it meets the criteria for an IBR) will be subjected to all the entire
procedural and substantive requirements for a new permit application
under IAC 27-40.31(207, 27-40.33(207), 27-40.34(207), 40-27.35 or
.37(207), 27-40.36 or .38(207), and [[Page 17462]] 27-40.39(207). Under
IAC 27-40.4(207) and 27-40.31(207), this would include the requirement
that increases in permit area (other than IBR's) be made by means of an
``administratively complete application.''
The Federal regulations at 30 CFR 774.13(d) provide that any
extension to the permit area, except IBR's, shall be made by
application for a new permit. The Federal regulations provide no
guidance as to what constitutes an ``incidental'' boundary revision.
Iowa's proposal, under OSM's interpretation stated above, would
require additions other than IBR's to be made by application for a new
permit. It places an upper limit on the amount of area that may be
added by IBR's and requires that IBR's be contiguous to the permit;
these proposed requirements add specificity to aid Iowa in determining
what constitutes an ``incidental'' boundary revision. For these reasons
the Director finds proposed IAC 27-40.32(3)e. to be consistent with the
Federal regulations at 30 CFR 774.13(d) in meeting SMCRA's
requirements, and is approving the proposal.
6. IAC 27-40.51(7). Time Requirements for Processing of Bond Release
Applications
At IAC 27-40.51(7), Iowa previously proposed to modify 30 CFR
800.40(a)(2) (as incorporated by reference) by requiring the regulatory
authority to determine that an application for bond release is complete
before the bond release application is advertised. OSM did not approve
that proposal because it would create conflicts with other required
time frames in the processing of bond release applications (see 59 FR
5709, 5718; February 8, 1994; Finding No. 22).
Iowa now proposes to delete that unapproved modification of 30 CFR
800.40(a)(2); thus, under IAC 27-40.51(207), 30 CFR 800.40(a)(2) would
be incorporated without modification. Iowa further proposes to add a
new rule at IAC 27-40.51(7) which would provide that an application for
bond release will not be considered filed until a written determination
of completeness for the bond release application has been provided to
the applicant by Iowa, and would further provide that Iowa will make a
determination of completeness within 30 days of receipt.
Under the Federal regulations at 30 CFR 800.40, the starting point
for all time requirements related to processing bond release
applications is the date a bond release application is ``filed;'' but
no clarification is provided regarding whether an application must be
found to be complete before being considered ``filed.''
In the absence of any contrary indication in the Federal
regulations, the concept of requiring a determination of completeness
before considering a bond release application ``filed'' would not be
considered inconsistent with those Federal regulations, providing other
aspects of the bond release process are not adversely affected. One
such aspect to be considered is the procedural protection afforded
operators by assuring them of timely decisions on bond release
applications. Iowa's proposal, by providing a maximum of 30 days for
Iowa to make a determination of completeness, provides assurance that
decisions on bond release applications will not be unduly delayed.
Further, OSM believes that this proposal will assist Iowa in the
efficient administration of its program, and may also serve the
interests of operators in obtaining bond releases: if incomplete
applications are entered into the strict time frames of these
procedures, there may not be sufficient time to resolve all problems
before a decision must be rendered, resulting in the automatic denial
of the application. This would require the operator to file a new
application, which would delay the potential bond release and create an
additional unnecessary workload for both the regulatory authority and
the operator.
Based on the above discussion, the Director finds that Iowa's
proposal at IAC 27-40.51(7) is not inconsistent with the Federal
regulations at 30 CFR 800.40, and is approving the proposal.
7. IAC 27-40.63(2). Backfilling & Grading: Time and Distance
Requirements
Iowa proposes to incorporate by reference 30 CFR 816.100 and delete
the incorporation by reference of 816.101 (both as in effect on July 1,
1992), and add that the following shall apply: rough backfilling and
grading for surface mining activities shall be completed within 180
days following coal removal, and not more than four spoil ridges behind
the pit being worked (spoil from the active pit constituting the first
ridge); except that Iowa may extend the time allowed for the entire
permit area or for a specified portion of it if the permittee
demonstrates (in accordance with IAC 27-40.36 [30 CFR 780.18(b)(3)])
that additional time is necessary. Iowa adds in a narrative note to the
submittal that it intends to adopt time and distance standards only for
area mining.
OSM's time and distance requirements at 30 CFR 816.101 were
suspended on July 31, 1992 (57 FR 33874). Therefore OSM must evaluate
State time and distance requirements against the general
contemporaneous reclamation requirements of 30 CFR 816.100. This
regulation requires that all reclamation efforts (including
backfilling, grading, topsoil replacement, and revegetation) on all
land that is disturbed by surface mining activities shall occur as
contemporaneously as practicable with mining operations (except when
variances are granted for concurrent surface and underground mining
activities).
As noted above, Iowa's proposal incorporates the general
contemporaneous reclamation requirement of 30 CFR 816.100 by reference.
The additional proposed time and distance requirements provide
additional specificity to one aspect of the general requirement and is
not inconsistent with the general requirement. Regarding Iowa's
intention to specify time and distance standards only for area mining,
OSM is aware that all recent coal mining in Iowa has been area mining,
and because of the geology and geography of Iowa's coal fields it is
likely that only area mining will occur in the near future. Should any
other type of surface mining occur, it would still be subject to the
general requirement of 30 CFR 816.100, which is consistent with the
current Federal regulations (given that Sec. 816.101 is suspended).
Based on the above discussion, the Director finds Iowa's proposal
at IAC 27-40.63(2) to be consistent with the Federal regulations at 30
CFR 816.100, and is approving the proposal. The Director further notes
that the incorporation by reference of 30 CFR 816.100 requires that
topsoil replacement occur as contemporaneously as practicable with
mining operations, and thus satisfies the required amendment codified
at 30 CFR 915.16(b)(2) that was imposed on February 8, 1994 (59 FR
5709, 5723). Therefore the Director is removing this requirement.
8. IAC 27-40.74(3). Alternate Enforcement
Iowa proposes to revise existing incorrect cross-references to the
Iowa Code that in this rule replace the cross-references to SMCRA in
Iowa's incorporation by reference of 30 CFR 845.15(b)(2). Specifically,
Iowa proposes to replace (in its incorporation of 30 CFR 845.15(b)(2)
by reference) SMCRA Section 518(e) with Iowa Code Section
[[Page 17463]] 207.15(6), SMCRA Section 518(f) with Iowa Code Section
207.15(7), SMCRA Section 521(a)(4) with Iowa Code Section 207.14(3),
and SMCRA Section 521(c) with Iowa Code Section 207.14(8).
The Director finds that Iowa has cited the correct Iowa Code
counterparts to the cited SMCRA Sections, and that the proposal is thus
no less effective than 30 CFR 845.15(b)(2) in meeting SMCRA's
requirements, and is approving the proposal. The Director further notes
that this approval fulfills the required amendment codified at 30 CFR
915.16(b)(3) that was imposed on February 8, 1994 (59 FR 5709, 5723).
Therefore the Director is removing this requirement.
9. IAC 27-40.75(2). Definition of ``Violation, Failure, or Refusal''
Iowa proposes to replace the definition of ``violation, failure, or
refusal'' in the Federal regulations at 30 CFR 846.5 with a new
definition that is substantively the same as the Federal definition,
with one exception. The second part of the Federal definition includes
failure or refusal to comply with certain orders, but excludes orders
issued under SMCRA Sections 518(b) or 703. Iowa's corresponding
statutory provisions (Iowa Code sections 207.15 and 207.28,
respectively) do not specifically refer to the issuance of ``orders.''
Therefore in this proposed definition, Iowa has replaced citations to
its statute with citations to its implementing rules (IAC 27-40.74(7)
and 27-40.7(207)), since these implementing rules do specifically refer
to orders issued by Iowa. This replacement of statutory citations with
regulatory citations renders Iowa's proposed definition substantively
the same as the Federal definition. Therefore the Director is approving
the proposal.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
In response to OSM's invitation of public comments, the State
Historical Society of Iowa responded on June 17, 1994, with a
suggestion that Iowa's proposed definition of ``significant departure''
(at proposed IAC 27-40.32(2)) be revised to 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 that mining operations would have on cultural resources
(Administrative Record No. IA-404). OSM forwarded the suggestion to
Iowa in the issue letter dated October 3, 1994 (Administrative Record
No. IA-407).
Iowa included this suggestion in its revised amendment dated
November 8, 1994 (Administrative Record No. IA-408). The Director is
approving this proposed definition, as discussed in Finding No. 5.b
above.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Iowa program. No comments were received.
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Iowa proposed to make in its amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. IA-400). EPA did
not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record No.
IA-400). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves Iowa's proposed
amendment as submitted on April 13, 1994, and as revised on November 8,
1994.
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
915.16 that, within 60 days of the publication of this final rule, Iowa
must either submit a proposed written amendment, or a description of an
amendment to be proposed that meets the requirements of SMCRA and 30
CFR Chapter VII and a timetable for enactment that is consistent with
Iowa's established administrative or legislative procedures.
The Director approves the rules as proposed by Iowa 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. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. 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.
3. 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)). [[Page 17464]]
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. 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 that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 915
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 31, 1995.
Russell F. Price,
Acting 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
11. 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 revising the heading and by adding
paragraph (k) to read as follows:
Sec. 915.15 Approval of amendments to the Iowa regulatory program.
* * * * *
(k) Revisions to and/or addition of the following rules, as
submitted to OSM on April 13, 1994, and as revised on November 8, 1994,
are approved effective April 6, 1995:
IAC 27-40.3(207), general provisions of regulatory program; 27-
40.4(9), definition of ``previously mined area;'' 27-40.31(14),
requirements for permits and permit processing; 27-40.32(207),
revisions, amendment, renewal, transfer, sale, assignment of permit;
27-40.51(7), bond release applications; 27-40.63(20), backfilling and
grading, time and distance requirements; 27-40.74(3), alternate
enforcement; and 27-40.75(2), definition of ``violation, failure, or
refusal.''
3. Section 915.16 is revised to read as follows:
Sec. 915.16 Requried program amendments.
Pursuant to 30 CFR 732.17(f)(1), Iowa is required to submit to OSM
by the specified date the following written, proposed program
amendment, or a description of an amendment to be proposed that meets
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for
enactment that is consistent with Iowa's established administrative or
legislative procedures.
[FR Doc. 95-8465 Filed 4-5-95; 8:45 am]
BILLING CODE 4310-05-M
