Iowa Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 915

[SPATS No. IA-009-FOR]

Iowa Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the Iowa

regulatory program (hereinafter the ``Iowa program'') under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). The proposed

amendment consists of revisions to the Iowa rules pertaining to repair

or compensation for material damage resulting from subsidence caused by

underground coal mining operations and to replacement of water supplies

adversely impacted by underground coal mining operations. The amendment

is intended to revise the Iowa program to be consistent with the

corresponding Federal regulations and SMCRA.

DATES: Written comments must be received by 4:00 p.m., c.s.t., January

27, 1997. If requested, a public hearing on the proposed amendment will

be held on January 21, 1997. Requests to speak at the hearing must be

received by 4:00 p.m., c.s.t., on January 10, 1997.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Michael C. Wolfrom, Mid-Continent

Regional Coordinating Center, at the address listed below.

Copies of the Iowa program, the propose amendment, a listing of any

scheduled public hearings, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

Friday, excluding holidays. Each requester may receive one free copy of

the proposed amendment by contacting OSM's Mid-Continent Regional

Coordinating Center.

Michael C. Wolfrom, Mid-Continent Regional Coordinating Center, Office

of Surface Mining Reclamation and Enforcement, Alton Federal Building,

501 Belle Street, Alton, Illinois, 62002, Telephone: (618) 463-6460.

Iowa Department of Agriculture and Land Stewardship, Division of Soil

Conservation, Henry A. Wallace Building, Des Moines, Iowa, 50319,

Telephone: (515) 281-6147.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Mid-Continent

Regional Coordinating Center, Telephone: (618) 463-6460.

SUPPLEMENTARY INFORMATION:

I. Background on the Iowa Program

On January 21, 1981, the Secretary of the Interior conditionally

approved the Iowa program, effective April 10, 1981. 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

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concerning Iowa's program and program amendments can be found at 30 CFR

915.10, 915.15, and 915.16.

II. Description of the Proposed Amendment

By letter dated December 4, 1996 (Administrative Record No. IA-

424), Iowa submitted a proposed amendment to its program pursuant to

SMCRA. Iowa submitted the proposed amendment in response to a May 20,

1996, letter (Administrative Record No. IA-420) that OSM sent to Iowa

in accordance with 30 CFR 732.17(c). The provisions of the Iowa

Administrative Code (IAC) that Iowa proposes to amend are IAC 27-

40.4(10), Definitions; IAC 27-40.38(2), PHC determination; IAC 27-

40.38(3), Subsidence control plan; IAC 27-40.64(8), Hydrologic balance

protection; IAC 27-40.64(6), Subsidence control; and IAC 27-40.64(7),

Repair of damage. The substantive changes proposed by Iowa are

discussed below.

I. IAC 27-40.4(10) Definitions

At IAC 27-40.4(10), Iowa proposes to add at its incorporation of 30

CFR 701.5 definitions for the terms ``Drinking, domestic or residential

water supply''; ``Material damage''; ``Non-commercial building'';

``Occupied residential dwelling and structures related thereto''; and

``Replacement of water supply.''

2. IAC 27-40.38(2) PHC Determination

At IAC 27-40.38(2), Iowa proposes to add at its incorporation of 30

CFR Part 784 the new Federal provision at 30 CFR 784.14(e)(3)(iv),

which was effective May 1, 1995.

The substantive provision at paragraph (e)(3)(iv) requires the PHC

determination to include findings on whether underground mining

activities conducted after October 24, 1992, may result in

contamination, diminution, or interruption of a well or spring in

existence at the time the permit application is submitted and used for

domestic, drinking, or residential purposes within the permit or

adjacent areas.

3. IAC 27-40.38(3) Subsidence Control Plan

At IAC 27-40.38(3), Iowa proposes to delete 30 CFR 784.20 as

incorporated by reference as in effect on July 1, 1992, and replace it

with the revised Federal provisions at 30 CFR 784.20 that were

effective May 1, 1995.

The substantive provisions of 30 CFR 784.20(a) require that each

permit application for an underground mine include a pre-subsidence

survey to identify potentially impacted structures, renewable resource

lands, and protected water supplies within the proposed permit and

adjacent areas. In addition, the revised rules add specific content

requirements for the pre-subsidence survey, including: a detailed map,

at a scale of 1:12,000, or larger scale if required by the regulatory

authority, identifying the location and type of all structures,

renewable resource lands that subsidence may materially damage or

diminish the reasonably foreseeable use, and protected water supplies

that could be adversely impacted; a narrative addressing the potential

impacts of subsidence on these features; and identification of the

premining condition of all protected structures and water supplies.

The substantive provisions of 30 CFR 784.20(b) require that a

permit application for an underground mine include a subsidence control

plan if the survey required by 30 CFR 784.20(a) identifies any

domestic, drinking, or residential water supply that could be

contaminated, diminished, or interrupted by subsidence. The subsidence

control plan must contain the information contained in paragraphs

(b)(1) through (b)(6). Paragraph (b)(2) requires that the plan must

include a map showing the areas where damage minimization measures will

be taken. Paragraph (b)(7) of the revised Federal rules requires that

the subsidence control plan include a description of the methods to be

used to minimize subsidence damage to protected structures when the

proposed mining method involves planned subsidence. The rule allows the

owner of the structure to waive this protection. In cases where there

is no threat to health or safety, the rule also authorizes the waiver

of this requirement if the applicant can demonstrate that the costs of

damage minimization exceed anticipated repair costs. Paragraph (b)(8)

of the revised rules requires that the subsidence control plan include

a description of the measures to be taken to replace any adversely

impacted protected water supply.

Iowa proposed minor changes to the provisions to make them State

specific, including adding some State regulation citation cross-

references and parenthetical notes.

4. IAC 27-40.64(8) Hydrologic Balance Protection

At IAC 27-40.64(8), Iowa proposes to add at its incorporation of 30

CFR Part 817 the new provision at 30 CFR 817.41(j), which was effective

May 1, 1995.

The substantive provision of paragraph (j) requires prompt

replacement of any drinking, domestic, or residential water supply that

is contaminated, diminished, or interrupted by underground mining

activities conducted after October 24, 1992.

5. IAC 27-40.64(6) Subsidence Control

IAC 27-40.64(6), Iowa proposes to delete 30 CFR 817.121(a), as

incorporated by reference as in effect on July 1, 1992, and to add the

actual Federal provision at 30 CFR 817.121(a), which was revised

effective May 1, 1995.

The substantive provisions of paragraph (a) provide that, to the

extent technologically and economically feasible, permittees using

mining methods that involve planned subsidence must conduct their

operations in a manner that minimizes subsidence damage to protected

structures. The rule allows the owner of the structure to provide a

written waiver of this protection. In cases where there is no threat to

health or safety, the rule also authorizes the regulatory authority to

waive this requirement if the applicant can demonstrate that the costs

of damage minimization exceed anticipated repair costs.

6. IAC 27-40.64(7) Repair of Damage

At IAC 27-40.64(7), Iowa proposes to delete 30 CFR 817.121(c) as

incorporated by reference as in effect on July 1, 1992, and to add the

actual Federal provisions at 30 CFR 817.121(c), which were revised

effective May 1, 1995.

The substantive provisions of 30 CFR 817.121(c) (2) and (3) require

the permittee to promptly repair, or compensate the owner for,

subsidence-related material damage to any noncommercial building or

occupied residential dwelling or related structure that existed at the

time of mining, provided the subsidence results from underground mining

activities conducted after October 24, 1992. The rule also provides

that, to the extent required by State law, the permittee must repair or

compensate the owner for subsidence-related material damage to all

other structures and facilities. The substantive provisions at 30 CFR

817.121(c)(4) establish a rebuttable presumption that the permittee is

responsible for any structural damage caused by earth movement within a

specified angle of draw from the outermost boundary of any underground

mine workings to the land surface. Unless otherwise approved in the

permit or the State program based on a geotechnical analysis of the

factors affecting potential surface impacts of underground coal mining

operations,

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the presumption must apply within a 30-degree angle of draw. No

presumption exists if the owner of the structure denied the permittee

access to conduct the presubsidence survey required under 30 CFR

784.20(a). All relevant and reasonably available information must be

considered in determining whether damage was caused by subsidence from

underground mining. The substantive provisions of 30 CFR 817.121(c)(5)

provide that, if subsidence-related material damage occurs to land,

structures, or facilities protected under 30 CFR 817.121(c), the

regulatory authority must require the permittee to post additional

performance bond in the amount of the estimated repair costs or

diminution in value, depending on whether the permittee intends to

repair the damage or compensate the owner. Similarly, if an underground

mining operation contaminates, diminishes, or interrupts any water

supply protected under 30 CFR 817.41(j), the regulatory authority must

require the permittee to post additional bond in the amount of the

estimated cost of replacing the supply. The permittee must post this

bond within 90 days of the date the damage occurred, unless repair,

compensation, or replacement is completed within that timeframe. Under

certain circumstances, the regulatory authority may extend the 90-day

grace period up to a maximum of one year.

Iowa proposed minor modifications to the provisions to make them

State program specific, including adding some State regulation citation

cross-references and parenthetical notations.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Iowa program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Mid-Continent Regional

Coordinating Center will not necessarily be considered in the final

rulemaking or included in the Administrative Record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

c.s.t. on January 10, 1997. If no one requests an opportunity to speak

at the public hearing, the hearing will not be held.

The location and time of the hearing will be arranged with those

persons requesting the hearing. Filing of a written statement at the

time of the hearing is requested as it will greatly assist the

transcriber. Submission of written statements in advance of the hearing

will allow OSM officials to prepare adequate responses and appropriate

questions. Any disabled individual who has need for a special

accommodation to attend a public hearing should contact the individual

listed under FOR FURTHER INFORMATION CONTACT

The public hearing will continue on the specific date until all

persons scheduled to speak have been heard. Persons in the audience who

have not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the audience who wish

to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the Administrative Record.

IV. Procedural Determinations

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).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State 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 1255) and 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.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. 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.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 915

Intergovernmental relations, Surface mining, Underground mining.

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Dated: December 7, 1996.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 96-32707 Filed 12-24-96; 8:45 am]

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