Iowa Permanent Regulatory Program

Federal RegisterFeb 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

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

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