Iowa Regulatory Program

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