[Federal Register Volume 59, Number 26 (Tuesday, February 8, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-2729] [[Page Unknown]] [Federal Register: February 8, 1994] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- SUMMARY: OSM is announcing the approval of a program amendment submitted by Iowa as a modification to the State's permanent regulatory program (hereinafter, referred to as the ``Iowa program'') under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The amendment pertains to exemptions for coal extraction incidental to the extraction of other minerals, restriction of financial interests of State employees, exemption of coal extraction incident to government- financed highway or other construction, protection of employees, initial regulatory program, areas unsuitable, permits for operations and exploration, small operator assistance, bonding and insurance, permanent program performance standards, inspection and enforcement, blaster certification, and contested cases and public hearings. The amendment is intended to revise the State program to be consistent with the corresponding Federal standards, clarify ambiguities, and improve operational efficiency. EFFECTIVE DATE: February 8, 1994. FOR FURTHER INFORMATION CONTACT: Jerry R. Ennis, Telephone: (816) 374- 6405. SUPPLEMENTARY INFORMATION: I. Background on the Iowa Program On January 21, 1981, the Secretary of Interior conditionally approved the Iowa program. General background information on the Iowa program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Iowa program can be found in the January 21, 1981, Federal Register (46 FR 5885). Subsequent actions concerning Iowa's program and program amendments can be found at 30 CFR 915.15 and 915.16. II. Submission of Amendment From October 1, 1983, to December 20, 1989, a number of changes were made to Federal regulations concerning surface coal mining and reclamation operations. During this time period, pursuant to Federal regulations at 30 CFR 732.17, OSM notified Iowa in four separate 732 letters dated December 12, 1988, (Administrative Record No. IA-336); May 11, 1989, (Administrative Record No. IA-340); November 28, 1989, (Administrative Record No. IA-347); and February 7, 1990, (Administrative Record IA-349), that the State rules must be amended to be consistent with the revised Federal regulations. By letter dated November 23, 1992 (Administrative Record No. IA- 372), Iowa submitted a proposed amendment to its program pursuant to SMCRA. Iowa submitted the proposed amendment with the intent of satisfying the outstanding 732 notifications from OSM and the required program amendments OSM placed on its program in a November 6, 1991, rulemaking action (56 FR 56578) at 30 CFR 915.16(a) of the Federal regulations. OSM announced receipt of the proposed amendment in the January 14, 1993, Federal Register (58 FR 4376) and, in the same notice, opened the public comment period and provided opportunity for a public hearing on the adequacy of the proposed amendment. The public comment period ended on February 16, 1993. The public hearing scheduled for February 8, 1993, was not held because no one requested an opportunity to testify. During its review of the amendment, OSM identified concerns related to Iowa Administrative Code (IAC) 27-40.1(3), General; 27-40.3(207), General; IAC 27-40.4(10), Full water year; IAC 27-40.21(207), Areas designated by an Act of Congress; IAC 27-40.31(207), Requirements for permits and permit processing; IAC 27-40.32(207), Revision, renewal, and transfer, assignment, or sale of permit rights; IAC 27-40.34, Permit application--minimum requirements for legal, financial, compliance, and related information; IAC 27-40.39(1), Requirements for permits for special categories of mining; IAC 27-40.61(1), Permanent program performance standards--general provisions; IAC 27-40.63, Permanent program performance standards--surface mining activities; IAC 27-40.67, Permanent program performance standards--coal preparation plants not located within the permit area of a mine; IAC 27-40.73(2)g, Enforcement; IAC 27-40.74, Civil penalties; and IAC 27-40.75, Individual civil penalties. OSM notified Iowa of the concerns by letter dated May 10, 1993 (Administrative Record No. IA-381). Iowa responded in a letter dated July 8, 1993 (Administrative Record No. IA-383), by submitting revised language for the proposed amendment to address the concerns raised by OSM. On July 21, 1993, OSM published a notice in the Federal Register (58 FR 38991) announcing receipt of revised language for the proposed amendment and inviting public comment on its adequacy. The public comment period ended August 5, 1993. By letters dated August 20, 1993 (Administrative Record No. IA-388), and August 30, 1993 (Administrative Record No. IA-389), Iowa provided OSM with additional information to clarify and correct three editorial errors. These clarifications are discussed in the appropriate findings to follow. III. Director's Findings 1. Provisions Not Discussed Iowa proposes revisions to its rules that involve minor editorial and word changes, and recodification. Iowa also proposes to revise its current incorporation by reference of OSM's regulations from those in effect as of July 1, 1987, to those in effect as of July 1, 1992. The Director finds that these proposed revisions, unless specifically discussed below, are no less effective than the Federal regulations and is approving them. 2. Provisions Not Discussed That Are Substantively the Same as the Counterpart Federal Regulations Iowa proposes revisions to rules that contain language that is the same or similar to the counterpart Federal regulations, replace Federal references and terms with appropriate State references and terms, or add specificity without adversely affecting other aspects of the program regulation. The Director, therefore, finds that these proposed revisions to Iowa's regulations are no less effective in meeting SMCRA's requirements than the Federal regulations. These revisions are as follows (Federal regulation counterparts are indicated in brackets): IAC 27-40.4(207) and 40.4(6), concerning the permanent regulatory program and the exemption for coal extraction incidental to the extraction of other minerals [30 CFR Part 702]; IAC 27-40.4(7)(f)(2), concerning the impact of a request for administrative review by persons adversely affected on an exemption determination [30 CFR 702.11(f)(2)]; IAC 27-40.4(8)(3), concerning the impact of a petition for administrative review on a decision to revoke an exemption [30 CFR 702.17(c)(3)]; IAC 27-40.31(15), concerning a permittee's right to appeal for administrative review [30 CFR 773.21(c)]; IAC 27-40.33(1) and (2), concerning general content requirements for permit applications [30 CFR 777.11(a)(3) and 777.14(a)]; IAC 27-40.35(1) and (3), Vegetation information and land use [30 CFR 779.19(a) and (b)]; IAC 27-40.35(9), Climatological information [30 CFR 779.18]; IAC 27- 40.35(13), Identification of public roads [30 CFR 779.24(h)]; IAC 27- 40.51(5), concerning soil productivity levels required for release of performance bonds on prime farmlands [30 CFR 800.40(c)(2)]; IAC 27- 40.73(2)g, concerning notification of owners and controllers of a permit upon issuance of a cessation order [30 CFR 843.11(g)]; IAC 27- 40.74(6), concerning procedures to prepare a request for a hearing on a violation [30 CFR 845.19]; IAC 27-40.74(7), concerning procedures for determining final assessment of a violation [30 CFR 845.20]; and IAC 27-40.75(3), concerning final order and opportunity for review of a penalty assessment [30 CFR 846.17(b)(1)]. 3. Iowa Code Chapter 207 In the letter dated July 8, 1993 (Administrative Record No. IA- 383), submitting revised language for the proposed amendment in response to OSM concerns, Iowa notified OSM that the Iowa Code has been reorganized in an attempt to achieve more logical groupings by agency and function in the Code. Therefore, Iowa Code chapter 83 is now Iowa Code chapter 207. Iowa indicated that no substantive changes were made to the statute. All references to Iowa Code chapter 83 in the Iowa Administrative Code have been revised to read Iowa Code chapter 207. OSM approves the recodification based upon its understanding that no substantive changes were made to the statute. 4. Provisions Adopting Suspended Federal Regulations Iowa proposes to adopt by reference several Federal regulations or portions thereof that are suspended. In its cover letter dated July 8, 1993, Iowa indicated it's intention to adopt the suspension rule announcements located at the end of the sub-Parts to the Federal regulations as published in the Code of Federal Regulations. Accordingly, the Director considers any proposed Iowa rule adopting a suspended Federal regulation noted in the 30 CFR as of July 1, 1992, to also be suspended in the State program. Therefore, the Director finds that with this clarification, these proposed State rules are no less effective than the Federal counterpart regulations and is approving them. The following is a list of the proposed Iowa rules adopting suspended Federal regulations as noted in the July 1, 1992, 30 CFR and the Federal Register notices that explain the Federal suspensions. a. At IAC 27-40.3(207), Iowa incorporates 30 CFR 700.11, Applicability, and the suspension notice that suspends paragraph (b) of that section insofar as it excepts from the applicability of 30 CFR chapter VII: (1) Any surface coal mining operations commencing on or after June 6, 1987; and (2) Any surface coal mining operations conducted on or after November 8, 1987 (52 FR 21228, 21229, June 4, 1987). b. At IAC 27-40.4(207), Iowa incorporates the definition and suspension notice for ``affected area'' at 30 CFR 701.5, Definitions (51 FR 41952, 41960, November 20, 1986). c. At IAC 27-40.12(207), Iowa incorporates 30 CFR 715.17, Protection of the hydrologic system, and the suspension notice that suspends paragraph (a)(1) of that section insofar as it applies to total suspended solids (TSS) discharges (44 FR 77447, 77451, December 31, 1979). d. At IAC 27-40.21(207), Iowa incorporates the definition of the term ``significant recreational, timber, economic, or other values incompatible with surface coal mining operations'' at 30 CFR 761.5, Definitions, and the suspension notice relating to the definition insofar as the listed values are evaluated for compatibility solely in terms of reclaimability (51 FR 41952, 41960, November 20, 1986). e. At IAC 27-40.21(207), Iowa incorporates 30 CFR 761.11, area where mining is prohibited or limited, and the suspension notice that suspends 30 CFR 761.11(h) (51 FR 41952, 41961, November 20, 1986). f. At IAC 27-40.35(207), Iowa incorporates 30 CFR 779.21, soils resources information, and the suspension notice that suspends 30 CFR 779.21 to the extent that it requires soils survey information for lands not qualifying as prime farmland (45 FR 51547, 51548, August 4, 1980). g. At IAC 27-40.37(207), Iowa incorporates 30 CFR 783.21, soils resources information, and the suspension notice that suspends 30 CFR 783.21 to the extent that it requires soils survey information for lands not qualifying as prime farmland (45 FR 51547, 51548, August 4, 1980). h. At IAC 27-40.63(207), Iowa incorporates 30 CFR 816.46, hydrologic balance: siltation structures, and the suspension notice that suspends 30 CFR 816.46(b)(2) (51 FR 41952, 41961, November 20, 1986). i. At IAC 27-40.63(207), Iowa incorporates 30 CFR 816.81, coal mine waste: general requirements, and the suspension notice that suspends paragraph (a) of that section insofor as it allows end dumping or side dumping of coal mine waste (51 FR 41952, 41961, November 20, 1986). j. At IAC 27-40.64(207), Iowa incorporates 30 CFR 817.46, hydrologic balance: siltation structures, and the suspension notice that suspends 30 CFR 817.46(b)(2) (51 FR 41952, 41962, November 20, 1986). k. At IAC 27-40.64(207), Iowa incorporates 30 CFR 817.81, coal mine waste: general requirements, and the suspension notice that suspends paragraph (a) of that section insofar as it allows end dumping or side dumping of coal mine waste (51 FR 41952, 41962, November 20, 1986). l. At IAC 27-40.71(207), Iowa incorporates 30 CFR 840.11, inspections by State regulatory authority, and the suspension notice that suspends 30 CFR 840.11(g) and (h) (56 FR 25036, June 3, 1991). 5. Required Program Amendments Iowa submitted proposed revisions in response to required program amendments at 30 CFR 915.16(a) of the Federal regulations that OSM placed on the Iowa program in the November 6, 1991, final rule Federal Register notice (56 FR 56578, 56594). The Director finds that the following proposed State regulations satisfy the required program amendments and are no less effective than the Federal regulations indicated in each required program amendment, and the Director is approving them [the codified required amendments at 30 CFR 915.16 are indicated in brackets]: IAC 27-40.11(2), by deleting from incorporation by reference the Federal regulation at 30 CFR 710.12 and by insuring that the appropriate State citations are substituted for incorporated Federal citations, [30 CFR 915.16(a)(2)]; IAC 27-40.13(207), by deleting from incorporation by reference subparagraphs (1) through (5) from the Federal regulation at 30 CFR 716.1(a), [30 CFR 915.16(a)(3)]; IAC 27-40.21(5) and (7), by specifying that the general word substitutions for ``Act'' and ``Secretary'' at rule IAC 27-40.1(207) do not apply to the incorporated 30 CFR 761.3 and by removing the incorporation by reference of 30 CFR 761.12(c), [30 CFR 915.16(a)(4)]; IAC 27-40.51(5) by insuring that the phrase ``and Part 823 of this chapter'' is incorporated in its rule, [915.16(a)(7)]; IAC 27-40.61(1) through (4) by requiring that the performance standards and design requirements of Iowa's approved program be followed and by deleting the reference to ``Parts 818 through 828'' and replacing it with ``Parts 819, 823, 827, and 828,'' [30 CFR 915.16(a)(8)]; IAC 27-40.63 (207) and 27-40.64 (207) by providing design criteria for the construction or modification of coal mine waste refuse piles, [30 CFR 915.16(a)(9)]; IAC 27-40.63 (207) by incorporating by reference the Federal regulations at 30 CFR 816.104 and .105 that define thick and thin overburden, [30 CFR 915.16(a)(11)]; IAC 27-40.66(207) by deleting from its incorporation by reference the Federal regulation at 30 CFR 823.11(a) thereby requiring that prime farmland occupied by all coal preparation plants, support facilities and roads that are a part of the surface mining activities meet the applicable prime farmland performance standards, [30 CFR 915.16(a)(12)]; IAC 27-40.67(2) by deleting from incorporation by reference subchapters 30 CFR 827.13(a)(1) through (3) that deal with interim performance standards that are not applicable to the Iowa program, [30 CFR 915.16(a)(14)]; IAC 27-40.72(3)b by requiring that the name of the person who is or may be adversely affected shall not be disclosed unless confidentiality had been waived or disclosed, [30 CFR 915.16(a)(15)]; IAC 27-40.73(2)c by referencing the appropriate counterpart rule to section 521(a)(5) of SMCRA, which is Iowa Code Section 207.14(6), [30 CFR 915.16(a)(16)]; IAC 27-40.73(6)e by referencing the State statute that establishes procedural requirements for formal adjudicatory hearings, which is Iowa Code Chapter 17A, [30 CFR 915.16(a)(17)]; IAC 27-40.73(6)g by referencing Iowa Code section 207.14 which contains provisions corresponding to section 521(a)(4) and 525 of SMCRA, [30 CFR 915.16(a)(18)]; IAC 27-40.74(5), (6), and (7) by replacing the current rules with rules that are substantively the same as the corresponding Federal rules at 30 CFR 845.18, .19, and .20 thereby: (1) providing rule specific procedures for conducting informal settlements; (2) providing that the proposed penalty amount be put in escrow prior to the commencement of the assessment conference; and (3) providing escrow account handling provisions, [30 CFR 915.16(a)(19)]; IAC 27-40.82(1) by deleting 30 CFR 955.1 and .2 regarding certification of blasters since they are not applicable to the State, [30 CFR 915.16(a)(20)]; and IAC 27-40.99(1)d. and (2) by deleting the reference to Iowa Code section 207.14, subsection 4, and instead referring to Iowa Code section 17A.15(3), the provision that establishes procedures for appealing the decision of an administrative law judge, [30 CFR 915.16(a)(21)]. Accordingly, the Director is removing the required program amendments as identified above from the Iowa program and as codified at 30 CFR 915.16. 6. IAC 27-40.1 (3) and (4), IAC 27-40.35, IAC 27-40.37, IAC 27-40.38, IAC 27-40.63, and IAC 27-40.64, Authorization of Land Surveyors Iowa proposes to revise its rules at IAC 27-40.1 (3) and (4) by deleting from 30 CFR 779.25(b), 780.14(c), 780.25(a)(1)(i), 780.25(a)(3)(i), 783.25(b), 784.16(a)(1)(i), 784.16(a)(3)(i), 816.46(b)(3), 816.49(a)(2), 816.49(a)(10)(ii), 816.151(a), 817.46(b)(3), and 817.151(a), as incorporated by reference into the State program, specific language which allows land surveyors to prepare and certify certain cross-sections, maps, and plans. Iowa also proposes, at IAC 27-40.37 (incorporating 30 CFR Part 783), IAC 27-40.38 (incorporating 30 CFR Part 784), IAC 27-40.63 (incorporating 30 CFR Part 816), and IAC 27-40.64 (incorporating 30 CFR Part 817), to make similar changes to the incorporated language which allows land surveyors to prepare and certify certain cross-sections, maps, and plans. Section 507(b)(14) of SMCRA and the Federal regulations allow land surveyors to prepare and certify such cross-sections, maps, and plans only to the extent allowed by the State. Thus, this option is discretionary to the State regulatory authority and Iowa's decision not to allow land surveyors to perform such duties does not render Iowa's program inconsistent with SMCRA or the Federal regulations. Iowa, in a previous program amendment submittal, received approval from the Director on November 6, 1991, to prohibit land surveyors from performing design and certification tasks in other locations of its program (56 FR 56578, 56584). In Iowa's July 8, 1993, response to OSM's May 10, 1993, concerns on this amendment, some of the Federal regulations incorporated by reference at IAC 27-40.1 (3) and (4) included similar, but slightly different language from the language the State proposed to delete. Therefore, Iowa submitted an editorial clarification to OSM in a letter dated August 20, 1993 (Administrative Record No. IA-388), to clarify the exact language that the State proposed to delete from the incorporated Federal provisions. Consequently, the Director finds Iowa's proposed revisions at IAC 27-40.1 (3) and (4), IAC 27-40.35 (incorporating 30 CFR Part 779), IAC 27-40.37 (incorporating 30 CFR Part 783), IAC 27-40.38 (incorporating 30 CFR Part 784), IAC 27-40.63 (incorporating 30 CFR Part 816), and IAC 27-40.64 (incorporating 30 CFR Part 816), and IAC 27-40.64 (incorporating 30 CFR Part 817), to be consistent with SMCRA and the Federal regulations and is approving the revisions. 7. IAC 27-40.1(5), Registered, Professional Engineer Iowa proposes to revise its rules at IAC 27-40.1(5) by deleting the words ``registered, professional engineer'' from its incorporation by reference of 30 CFR Parts 779, 780, 783, 784, 816, and 817. Iowa proposes to replace the deleted phrase with the phrase ``professional engineer, registered with the State of Iowa.'' This proposed change insures that professional engineers meet State registration requirements. The Director finds the proposed revision at IAC 27-40.1(5) to be consistent with SMCRA and the Federal regulations and is approving it. 8. IAC 27-40.3(207), General Iowa, at IAC 27-40.3(207), proposes to revise its rules by deleting 30 CFR 700.12, dealing with petitions to initiate rulemakings, from its incorporation by reference of 30 CFR Part 700. OSM, in its May 10, 1993, issue letter (Administrative Record No. IA-381) to Iowa, expressed concern that, by deleting the incorporation of 30 CFR 700.12, Iowa would be left without any rule to provide procedural requirements pertaining to such petitions. In a letter dated July 8, 1993 (Administrative Record No. IA-383), Iowa supported its decision to delete 30 CFR 700.12 by explaining that the Iowa Department of Agriculture and Land Stewardship promulgated rules to provide procedural requirements for petitions to initiate rulemaking at IAC 21- 3. The Iowa rules at IAC 21-3, in turn, adopt the Iowa Uniform Rules on Agency Procedure, Chapter X, that set forth procedures for handling petitions for rulemaking. Iowa submitted both the Iowa Uniform Rules on Agency Procedure, Chapter X, and IAC 21-10 for OSM's review. Iowa further explained in its July 8, 1993, letter that rule IAC 21-3.5(17A) addresses petitions received for related entities and that ``[w]hile the Division has its own rulemaking authority separate from the Secretary of Agriculture, the Division is an entity of the Iowa Department of Agriculture and Land Stewardship * * * . Any petitions received relative to the coal regulatory program will be so forwarded.'' OSM understands Iowa's explanation to mean that any petitions received by the Secretary of Agriculture relative to the coal regulatory program will be forwarded to the Division for processing in accordance with IAC 21-3 and the Iowa Uniform Rules on Agency Procedure, Chaper X. Upon review of IAC 21-3 and the Iowa Uniform Rules on Agency Procedure, the Director finds them to be no less effective than the Federal counterpart regulation at 30 CFR 700.12 and is approving them. With regard to Iowa's proposed revision at IAC 27-40.3(207), to delete the incorporation of 30 CFR 700.12 of the Federal regulations, the Director finds this deletion acceptable so long as Iowa amends this rule to clearly identify IAC 21-3 as governing procedures regarding petitions for initiating rulemaking. Thus, the Director is requiring Iowa to further amend its rules at IAC 27-40.3 by clearly identifying IAC 21-3 as governing procedures regarding petitions for initiating rulemaking. 9. IAC 27-40.4(9), Definition for ``Previously Mined Area'' Iowa proposes to revise its rules at IAC 27-40.4(9) by deleting the Federal definition for ``previously mined area'' at 30 CFR 701.5 and inserting in lieu thereof the following: ``Previously mined area'' means land previously mined on which there were no surface coal mining operations subject to the standard of the Surface Coal Mining and Reclamation Act of 1977 (Public Law 95-87, as amended); all highwalls created after August 3, 1977, and all fully reclaimed sites are excluded from this definition. Iowa's proposal is in response to a required amendment at 30 CFR 915.16(a)(1) (November 6, 1991 (56 FR 56578, 56594)), that required the State to provide a definition for ``previously mined area'' that excludes all highwalls created after August 3, 1977, and all fully reclaimed sites. The Director finds that Iowa's proposal satisfies the required amendment at 30 CFR 915.16(a)(1) and the Director is, therefore, approving the proposed definition. Since the required amendment was promulgated at 30 CFR 915.16(a)(1), however, on January 8, 1993 (58 FR 3466), OSM issued a new definition for ``previously mined area.'' The new definition provides as follows: ``Previously mined area means land affected by surface coal mining operations prior to August 3, 1977, that has not been reclaimed to the standards of 30 CFR chapter VII.'' This definition limits the applicability of 30 CFR 816.106 and 817.106 to those areas mined prior to August 3, 1977, that are either unreclaimed or reclaimed to lesser standards than those prescribed by SMCRA, while also ensuring that areas mined prior to that date that have been fully and satisfactorily reclaimed pursuant to SMCRA's standards will not be redisturbed and then reclaimed under the less stringent requirements of 30 CFR 816.106 and 817.106. According to the preamble discussion for the definition of ``previously mined area,'' under the definition, unreclaimed or partially reclaimed areas mined prior to August 3, 1977, would continue to qualify for the partial highwall elimination exemption of 30 CFR 816.106 and 817.106, but would be otherwise held to full compliance with the reclamation standards of 30 CFR chapter VII. In such instances, the operator would be required to eliminate the highwall to the maximum extent technically practical, and to demonstrate the stability of the remaining highwall remnant. As stated above, Iowa's proposed definition explicitly excludes all highwalls created after August 3, 1977, and all fully reclaimed sites. It is not explicitly clear, however, that the proposed Iowa definition is consistent in all respects with the newly-promulgated Federal definition. For example, under the Federal definition, in order for land to qualify as a ``previously mined area,'' the land must both: (1) have been affected by surface coal mining operations prior to August 3, 1977; and (2) not have been reclaimed to the standards of 30 CFR chapter VII. By comparison, under the State proposal, the key consideration in determining whether an area of land qualifies as previously mined area, is whether the previous surface coal mining operations there were ``subject to the standards of the [SMCRA] * * *'' To the extent the State proposal relies upon whether an area of land was subject to the standards of SMCRA, it is similar to the previous Federal definition of ``previously mined area,'' promulgated on May 8, 1987 (52 FR 17526, 17529). As discussed in the preamble to the promulgation of the current Federal definition of ``previously mined area,'' the 1987 Federal definition of that term was remanded by the United States District Court for the District of Columbia. See National Wildlife Federation v. Lujan, 733 F. Supp. 419, 438-442 (1990). The Court found that the 1987 definition did not conform to the requirements of SMCRA to the extent it relied upon any date other than the date of SMCRA's enactment-- August 3, 1977. Id. Therefore, although the Director finds Iowa's proposed rule at IAC 27-40.4(9) satisfies the previous required amendment at 30 CFR 915.16(a)(1) and is approving it, the Director is requiring Iowa to further amend its definition of ``previously mined area'' at IAC 27- 40.4(9) to be explicitly no less effective than the current Federal definition at 30 CFR 701.5. The Director will modify the required amendment at 30 CFR 915.16(a)(1) in accordance with this finding. 10 IAC 27-40.21(207), Definition for ``Valid Existing Rights'' Iowa proposes to revise its rules at IAC 27-40.21(207) by incorporating by reference the definition for ``valid existing rights'' (VER) at 30 CFR 761.5 as it existed on July 1, 1992. Paragraphs (a) and (c) of the definition were suspended on November 20, 1986 (51 FR 41952, 41954-41955). In that suspension notice, OSM stated the following with regard to Federal Programs and the Indian Lands Program: * * * Suspending the rule has the effect of undoing the improper promulgation and leaving in place the VER test in use before the 1983 definition was promulgated. That test was the 1979 test, including the ``needed for and adjacent'' test, as modified by the August 4, 1980, suspension notice which implemented the District Court's February 1980 opinion in In Re: Permanent (I) (the 1980 test) * * * Under the 1980 test, a demonstration of both property rights and that the person either had made a good faith effort to obtain all permits necessary to mine or that the coal is both needed for and adjacent to an ongoing surface coal mining operation is sufficient to establish VER. Accordingly, OSM will make VER determinations in Federal program States and on Indian lands using the 1980 test. OSM will make VER determinations on a case-by-case basis after examining the particular facts of each case, and will consider property rights in existence on August 3, 1977, the owner of which by that date had made a good faith effort to obtain all permits, as one class of circumstances which would invariably entitle the property owner to VER. VER would also exist when there are property rights in existence on August 3, 1977, the owner of which can demonstrate that the coal is both needed for an immediately adjacent to a mining operation in existence prior to August 3, 1977. As discussed in Finding no. 4 of this document, Iowa has indicated its intention to adopt the suspension notices located at the end of the federal regulations published in the Code of Federal regulations. Thus, as applied to the definition of VER, the Director interprets Iowa's adoption of the Federal definition to include the above-quoted language language from the November 20, 1986, preamble. The Director will notify Iowa of any change in the Federal regulation in accordance with 30 CFR 732.17(d) and may in the future require Iowa to modify its regulatory program to remain consistent with the Federal provision. In the meantime, the Director is approving Iowa's proposed adoption by reference of the definition for VER at 30 CFR 761.5. 11. IAC 27-40.31(2), Requirements for Permits and Permit Processing Iowa proposes to revise its rules at IAC 27-40.31(2) by requiring that the words ``and the scale of the map'' be added at the end of the last sentence of 30 CFR 773.13(a)(1)(ii), as incorporated by reference into the State program. In addition, Iowa proposes to add the following paragraph to 30 CFR 773.13(a)(1)(ii), as incorporated by reference into the State program: The legal description shall include popular township, county, township, range, section, and the United States Geological Survey map identification by property owners. Section lines shall be marked and the sections shall be identified on the map. The total acreage of the proposed permit area shall be given to the nearest acre. While the Federal regulations at 30 CFR 773.13(a)(1) do not require such detailed information, in accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations that are more stringent than those imposed under SMCRA and the Federal regulations. Moreover, the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations for which no Federal counterpart provision exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such State provisions shall not construed to be inconsistent with the Federal program. Therefore, the Director is approving Iowa's proposed revision at IAC 27-40.31(2). 12. IAC 27-40.31(9), Requirements for Permits and Permit Processing Iowa proposes, at IAC 27-40.31, to add paragraph (9) that specifies that the general word substitution of the term ``Act'' with the term ``Iowa Code chapter 207'' found at IAC 27-40.1(2) does not apply to 30 CFR 773.15(b), as incorporated by reference into the Iowa program. The incorporated Federal regulation, 30 CFR 773.15(b), requires that no permit be issued if any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant ``is currently in violation of the Act or any other law, rule or regulation referred to in [30 CFR 773.15],'' as indicated by any available information, including the list of violation notices submitted in the application. Among the specified violations are: Federal and State failure-to-abate cessation orders, unabated Federal and State imminent harm cessation orders, delinquent civil penalties issued pursuant to section 518 of the Act, bond forfeitures where violations upon which the fortfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of Federal and State laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation. . . . The preamble to the Federal regulation dated October 3, 1988 (53 FR 38868, 38886, clarifies that all unabated violations are included, no matter when they were issued: The Act requires regulatory authorities to consider past conduct in the permitting process. . . . In view of [sections 507(b)(4), (b)(5), and 510(c)] of the Act, it is clear that Congress both contemplated and authorized holding applicants accountable for past violations. Furthermore, permit denial is based on violations of any State or Federal program. As explained in the preamble to 30 CFR 778.14(c) dated September 28, 1983 (48 FR 44344, 44389), the reference to ``the Act'' in SMCRA section 510(c), on which these Federal regulations are based, includes all State and Federal programs approved under SMCRA. See also (53 FR 38868, 38882-38883) October 3, 1988. Therefore, in the context of the State's incorporation by reference of the Federal regulation at 30 CFR 773.15(b), the term ``Act'' must be understood to have the same meaning that it has under the Federal program. The Director therefore finds Iowa's proposed revision at IAC 27- 40.31(9) to be consistent with SMCRA and the Federal regulations and is approving it. 13. IAC 27-40.31 (13) and (14), Requirements for Permits and Permit Processing a. Time frame for permit application objections. Iowa proposes to revise its rule at IAC 27-40.31 that addresses comments and objections on permit applications by adding a paragraph (13) that would replace the phrase ``a reasonable time established by the regulatory authority'' in incorporated 30 CFR 773.13(b)(1) with the phrase ``60 days of the notification.'' This would allow those public entities identified at 30 CFR 773.13(b)(1) 60 days to submit written comments or objections with respect to the effects of the proposed mining operations on the environment within their areas of responsibility. OSM interprets the phrase ``60 days of the notification'' to mean 60 days from the date of receipt of the notification required to be given to specific public entities under 30 CFR 773.13(a)(3). The allowance of 60 days from the date of receipt of the notification of an application for a permit action for the governmental entities identified at 30 CFR 773.13(a)(3) to submit written comments or objections is a reasonable time frame and is consistent with the time frames allowed for in SMCRA. Therefore, the Director finds this proposed revision to be no less effective than the Federal regulation in meeting SMCRA's requirements and is approving it. b. Reapplication requirements. Iowa proposes to revise its rule at IAC 27-40.31(14), dealing with the review of permit applications, to require that the following sentence be added at the end of incorporated 30 CFR 773.15(a)(2): ``In case willful suppressing or falsifying of any facts or data is identified, the division may require the applicant to reapply for the same area.'' Iowa's proposed revision conflicts with SMCRA, the Federal regulations, and other provisions of the Iowa program. Section 510(b)(1) of SMCRA and section 30 CFR 773.15(c)(1) of the Federal regulations provide that no application for a permit or permit revision shall be approved unless the application affirmatively demonstrates and the regulatory authority finds in writing on the basis of information set forth in the application or from information otherwise available which will be documented in the approval, and made available to the applicant, that the permit application is accurate and complete and that all the requirements of this Act and the State or Federal program have been complied with. Counterpart State provisions to section 510(b)(1) of SMCRA and 30 CFR 773.15(c)(1) can be found in the Iowa program at section 207.9(2)(a) of the Iowa Code and IAC 27-40.31 (incorporating 30 CFR 773.15 by reference). Thus, under SMCRA, the Federal regulations, and the Iowa program, in the event willful suppressing or falsifying of any facts or data is identified, the regulatory authority would have no discretion and would be required to deny the permit. Therefore, the Director finds Iowa's proposed added language at IAC 27-40.31(14) to be less stringent than SMCRA, less effective than the Federal regulations in meeting SMCRA's requirements, and inconsistent with approved Iowa program. Accordingly, the Director is not approving it. The Director also notes that under the Federal, as well as the State, program, anyone who knowingly makes any false statement, representation, or certification, or knowingly fails to make any statement, representation, or certification in any application, record, report, plant, or other document filed or required to be maintained under the program, is subject to criminal penalties, including imprisonment. See section 518(g) of SMCRA. See also Section 207.15(6) of the Iowa Code. 14. IAC 27-40.32, Revision; Renewal; and Transfer, Assignment, or Sale of Permit Rights a. Revisions and amendments. Iowa proposes to revise its rule at IAC 27-40.32(1) by adding an introductory provision that explains that the term ``revision'' is used to describe ``a change to a permit that constitutes a significant departure from the original permit. Any change to an Iowa permit that does not constitute a significant departure from the original permit is called an ``amendment'' to the permit in the context of these rules.'' The introductory provision continues by requiring that the public notice, public participation, and notice of decision requirements of 30 CFR 773.13, 773.19(b), and 778.21 apply to all revisions. Iowa proposes to revise IAC 27-40.32(1) by clarifying that ``[s]ignificant departures, including incidental boundary revisions, shall be treated as revisions.'' Significant departures include any change in the permit area, mining method or reclamation procedure, which would, in the opinion of the regulatory authority, significantly change the effect the mining operations would have on either those persons impacted by the permitted operation or on the environment. At IAC 27-40.32(3), Iowa clarifies that, unless it qualifies as an incidental boundary revision, any change in permit area must be treated as a new permit application. At IAC 27-40.32(1), Iowa also proposes to add a sentence to the end of the State's substitute paragraph (b) for 30 CFR 774.13(b) that requires ``[a] change which does not constitute a significant departure from the original permit will be processed as an amendment to the permit[.]'' Iowa proposes to add a new paragraph (6) at IAC 27-40.32 that modifies its incorporation by reference of 30 CFR 774.13(a) by adding the following at the end of the incorporated Federal regulation: The ``revision'' is a significant departure in mining and reclamation operations defined at subrule 40.32(1)(b)(2)(i), and it requires a public notice. The division uses the term ``amendment'' for an insignificant revision, and it does not require a public notice. The Federal regulations at 30 CFR 774.13 do not address permit ``revisions'' versus ``amendments'' specifically, however, 30 CFR 774.13(b)(2) requires the regulatory authority to create guidelines establishing the scale or extent of revisions for which all the permit application information requirements and procedures of 30 CFR Chapter VII, Subchapter G, including the public notice, public participation, and notice of decision requirements of 30 CFR Secs. 773.13, 773.19(b) (1) and (3), and 778.21, shall apply. The Federal regulations at 30 CFR 774.13(b)(2) also specify that such requirements and procedures shall apply ``at a minimum to all significant permit revisions.'' There are four concerns regarding Iowa's proposed changes to its program. First, Iowa has language in its program, at IAC 27-40.32(2), that provides, in part: Any application for a revision which proposes significant alterations in the operations described in the materials submitted in the application for the original permit under Part 3 of these rules or in the conditions of the original permit, shall, at a minimum, be subject to the requirements of Part 9 of these rules and must provide replacement documentation fully describing changes to be made in the same detail as required in the original permit (emphasis added). By comparison, the proposed language at 27-40.32 (1) and (6) described above refers to significant departures and significant departures appear to only be required to provide public participation and public notice. Therefore, it appears that Iowa is proposing a two- tiered system for revisions: an all-inclusive revision, referred to as a significant alteration, which requires full replacement documentation and adherence to the requirements of Part 9, and a subset to the significant alteration, referred to as a significant departure, which only requires public participation and notice. Second, the preamble to the Federal rules at 30 CFR 774.13(b)(2) dated September 28, 1983, (48 FR 44344, 44377) makes it clear that all revisions to the permit, whether they be significant or insignificant, or in Iowa's case a revision or an amendment, must be approved by the regulatory authority and incorporated into the permit. Under the final rule, the regulatory authority will establish the guidelines for revisions. However, all revisions must be approved and incorporated into the permit since they are changes to that document. The permit and all public copies of it should reflect all revisions approved by the regulatory authority so that all interested persons, including inspectors, the operator, and the public, will have an accurate copy of the permit. The permit is the document which authorizes the operator to mine and must be accurate. The first paragraph of proposed IAC 27-40.32(1) seems to require that any change to a permit be approved by the regulatory authority, either by amendment or revision. At a later section of proposed IAC 27- 40.32(1), however, Iowa states that: [(b)](2) A revision or amendment to a permit shall be obtained: (i) For changes in the surface coal mining or reclamation operations described in the original application and approved under the original permit, when such changes constitute a departure from the method or conduct of mining and reclamation operations contemplated in the original permit (emphasis added). Thus, in one portion of the proposal Iowa seems to require, like the Federal regulations, that all changes to a permit be approved by the regulatory authority. However, in another portion of the proposal, Iowa seems to require such regulatory authority approval only for a particular type of change to a permit. Moreover, Iowa does not insure that all revisions (significant departures and amendments) be incorporated into the permit and all public copies of the permit. Third, the Federal regulations set forth criteria for approval at 30 CFR 774.13(c) that govern all permit revisions, whether significant or nonsignificant. Iowa has, at proposed 27-40.32(207), incorporated by reference the Federal provision at 30 CFR 774.13(c) into the Iowa program. However, in the context of the Iowa program, the term ``permit revision'' only includes significant revisions. Thus, the Federal regulations require that the criteria at 30 CFR 774.13(c) govern the approval of all revisions, while the State proposal requires that such criteria govern only the approval of significant revisions. Finally, Iowa has not outlined what permit application standards and procedures apply to amendments. The preamble to 30 CFR 774.13(b)(2) dated September 28, 1983 (48 FR 44344, 44377), clearly requires the regulatory authority to establish guidelines as to what requirements will apply to nonsignificant revisions (i.e. amendments) to the permit. In light of the concerns outlined above, the Director finds Iowa's proposed rules at IAC 27-40.32(1) and 32(6) to be inconsistent with and less effective than the Federal program requirements and is not approving them to the extent that these proposed rules attempt to distinguish between permit amendments and revision. b. Permit review. Iowa proposes to revise IAC 27-40.32(1) and .32(1)(b)(2)(ii) in response to a required program amendment placed on the Iowa program at 30 CFR 915.16(a)(5). This required program amendment directed Iowa to require that the Federal regulations at 30 CFR 773.13, 773.19(b) (1) and (3), and 778.21 apply, at a minimum, to all significant permit revisions and that the division may, at any time, as well as at midterm review, require reasonable revisions or modifications. Iowa, at IAC 27-40.32(1), proposes to require that 30 CFR 773.13, 773.19(b) (1) and (3), and 778.21 apply, at a minimum, to all significant permit revisions. However, since the Director is not approving Iowa's proposed distinction between permit amendments and revisions, this proposed language does not work in the context of the existing rules at IAC 27-40.32(1). Therefore, the Director is not approving the proposed language at IAC 27-40.32(1). Iowa, at IAC 27-40.32(1)(b)(2)(ii), proposes to require that the division may, at any time, as well as at midterm review, require reasonable revisions or modifications. Therefore, the Director finds that Iowa has adequately addressed this portion of the required program amendment at 30 CFR 915.16(a)(5) and is approving the proposed language at IAC 27-40.32(1)(b)(2)(ii). The Director will amend the required program amendment at 30 CFR 915.16(a)(5) in accordance with this finding. c. Incidental boundary revisions. Iowa proposes to add a requirement to IAC 27-40.32(3) that incidental boundary revisions (IBR's) shall be considered, on demonstration by the operator, for an area in which the proposed mining operations are contiguous to the approved permit. OSM interprets the proposed language to mean that before an area of land can be added to a permit as an IBR, it must be contiguous to the approved permit. The Federal regulations at 30 CFR 774.13(d) do not specifically require that lands subject to an IBR be contiguous to the approved permit area. However, in accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations that are more stringent than those imposed under SMCRA and the Federal regulations. Moreover, the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations for which no Federal counterpart provisions exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such State provisions shall not be construed to be inconsistent with the Federal program. Therefore, the Director finds that the reproposed rule at IAC 27-40.32(3) is not inconsistent with SMCRA or the Federal regulations and is approving it. d. Permit renewal exclusion. Iowa proposes to add a new paragraph (8) at IAC 27-40.32 that would exclude the need for a permit renewal if the Division determines that the phase II bond was released over the entire permit area before the expiration of the permit term. This proposed language is similar to OSM's final rule at 30 CFR 773.11(a) published in the April 5, 1989, Federal Register (54 FR 13814), that establishes that a permittee need not renew the permit if no surface coal mining operations will be conducted under the permit and solely reclamation activities remain to be done. However, the Federal regulation at 30 CFR 773.11(a) continues by requiring that obligations established under a permit continue until completion of surface coal mining and reclamation operations, regardless of whether the authorization to conduct surface coal mining operations has expired or has been terminated, revoked, or suspended. Iowa incorporates by reference, at IAC 27-40.31(207), that portion of 30 CFR 773.11(a) which requires that obligations established under a permit continue until completion of surface coal mining and reclamation operations, regardless of whether the authorization to conduct surface coal mining operations has expired or has been terminated, revoked, or suspended. Therefore, the Director finds Iowa's proposed rule at IAC 27-40.32(8) to be no less effective than the Federal regulation and is approving it. e. Permit application information. Iowa proposes to add a new paragraph (9) at IAC 27-40.32 that modifies its incorporation by reference of 30 CFR 774.15(b)(2)(i) to require that, in addition to the application information required by the Federal provision for a permit renewal, an applicant must also provide information concerning the ``current status of the mine plan, other details and the time table--if different from the one previously approved--for the remaining phases of the operation and reclamation plans.'' While the corresponding Federal regulation does not require this additional information, in accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations that are more stringent than those imposed under SMCRA and the Federal regulations. Moreover, the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations for which no Federal counterpart exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such State provisions shall not be construed to be inconsistent with the Federal program. Therefore, the Director is approving Iowa's proposed revision at IAC 27-40.32(9). 15. IAC 27-40.34(3), Permit Application--Minimum Requirements for Legal, Financial, Compliance, and Related Information Iowa proposes to add, at IAC 27-40.34, a paragraph (3) that specifies that the general word substitution of the term ``Act'' with the term ``Iowa Code chapter 207'' at IAC 27-40.1(2) does not apply to 30 CFR 778.14(c), as incorporated by reference into the Iowa program, regarding minimum information requirements about violations that must be included in any permit application. As discussed in Finding No. 12 of this document, references to ``the Act'' in the Federal regulations at 30 CFR 778.14(c) and section 510(c) of SMCRA include, in addition to SMCRA and its implementing regulations, all State and Federal programs approved under SMCRA. See e.g. (48 FR 44344, 44389) September 28, 1983. See also (53 FR 38868, 38882-38883) October 3, 1988. Thus, 30 CFR 778.14(c) requires information regarding violations received pursuant to SMCRA or any State or Federal law, rule, or regulation enacted or promulgated pursuant to SMCRA. In addition, 30 CFR 778.14(c) requires information regarding violations received pursuant to any non-SMCRA Federal law, rule, or regulation, or any non- SMCRA State law, rule, or regulation which was enacted pursuant to Federal law, rule, or regulation, which pertains to air or water environmental protection and which were received in connection with any surface coal mining and reclamation operation. Therefore, in the context of the State's incorporation by reference of the Federal regulation at 30 CFR 778.14(c), the term ```Act'' must be understood to have the same meaning that it has under the Federal program. The Director finds Iowa's proposed revision at IAC 27-40.34(9) to be consistent with SMCRA and the Federal regulations and is approving it. 16. IAC 27-40.35 (10) and (11), Climatological Information a. Rain gauge identification Iowa proposes to revise IAC 27- 40.35(10) by adding a paragraph (c) to the incorporated Federal regulation at 30 CFR 779.18 that would provide as follows: Location of the rain gauges nearest to the permit area, preferably in the same watershed as the permit itself, shall be marked on a map, and these shall be described in the text as well, along with the period of available record at these gauges. While the corresponding Federal regulations at 30 CFR 779.18 do not require this information, in accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations that are more stringent than those imposed under SMCRA and the Federal regulations. Moreover, the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations for which no Federal counterpart provision exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such State provisions shall not be construed to be inconsistent with the Federal program. Therefore, the Director is approving Iowa's proposed revision at IAC 27-40.35(10). b. Climatological impact description. Iowa proposes to revise IAC 27-40.35(11) by adding a paragraph (d) to the incorporated Federal regulation at 30 CFR 779.18 that would provide as follows: A brief descrition shall be provided about the impact of the climatological factors on operation and reclamation plans, specifically what part of the year would be more conducive than others to various mining and reclamation operations. While the corresponding Federal regulations at 30 CFR 779.18 do not require this information, in accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations that are more stringent than those imposed under SMCRA and the Federal regulations. Moreover, the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations for which no Federal counterpart provision exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such State provisions shall not be construed to be inconsistent with the Federal program. Therefore, the Director is approving Iowa's proposed revision at IAC 27-40.35(11). 17. IAC 27-40.35 (12), (13) and (14) Maps: General Information a. Hydrologic area. Iowa proposes, at IAC 27-40.35(12), to revise its incorporation by reference of 30 CFR 779.24(g) by deleting the phrase ``defined by the regulatory authority.'' Iowa further proposes to add the following sentence at the end of incorporated 30 CFR 779.24(g): ``Hydrologic area'' is the area that consists of the permit area and the adjacent area.'' Thus, the Iowa proposal would require permit applications to include maps showing, among other things, the locations of water supply intakes for current users of surface water flowing into, out of, and within the permit and adjacent area. Iowa adopts by reference at IAC 27-40.4(207), the term ``adjacent area'' as it is defined at 30 CFR 701.5. The definition for ``adjacent area'' includes the area outside the permit area where resources, determined according to the context in which adjacent area is used, are or reasonably could be expected to be adversely impacted by proposed mining operations, including probable impacts from underground workings. In explaining the meaning of the term ``adjacent area,'' OSM stated in the Federal Register notice dated April 5, 1983 (48 FR 14814, 14818-14819), that: The term ``adjacent area'' is intended to refer to an area of variable size in which specified resources could be adversely impacted by mining operations. The size of the adjacent area could vary on a case-by-case basis depending upon whether impacts on water, fish and wildlife, cultural resources, or others are being considered * * * . * * * * * * * * The area determined to be within the ``adjacent area'' must be defined within the context of the particular resource being evaluated and often will depend upon local conditions. * * * Thus, the adjacent area may differ from case to case depending upon the factors under consideration. This can best be resolved by the regulatory authority within the context of the particular requirement of the regulatory program and the conditions within the particular State, region, or locale where the proposed mining operation is located. Thus, Iowa's proposed revision ensures that permit application maps will illustrate the locations of all water supply intakes for current users whose surface water supply will or could reasonably be expected to be adversely affected by the proposed mining operations. Accordingly, the Director finds IAC 27-40.35(12) to be consistent with SMCRA and no less effective than the Federal regulations, and is approving it. b. Section and section line identification. Iowa proposes, at IAC 27-40.35(14), to revise its incorporation by reference of 30 CFR 779.24(1) by inserting the following at the beginning of the regulation: ``Section lines and section identification, and any * * *.'' Thus, as revised by the State, the incorporated provision would require that permit applications include maps showing, among other things, ``[s]ection lines and section identification, and any other relevant information required by the regulatory authority.'' The Federal regulation at 30 CFR 779.24(1) simply allows the regulatory authority to require other information. While the corresponding Federal regulations 30 CFR 779.24(1) do not require the information regarding section lines and section identification, in accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations that are more stringent than those imposed under SMCRA and the Federal regulations. Moreover, the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations for which no Federal counterpart provision exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such State provisions shall not be construed to be inconsistent with the Federal program. Therefore, the Director is approving Iowa's proposed revision at IAC 27-40.35(14). 18. IAC 27-40.36(3), Surface Mining Applications--Minimum Permit Requirements for Reclamation and Operation Plan and IAC 27-40.38(8), Underground Mining Permit Applications--Minimum Permit Requirements for Reclamation and Operation Plan Iowa proposes to add the following new language at IAC 27-40.36(3) and 27-40.38(8), which deal with minimum requirements for reclamation and operations plans for surface and underground mining permit applications, respectively: The determination of probable hydrologic consequence (PHC) made pursuant to these rules as part of a permit application shall address all proposed mining activities associated with the permit area for which authorization is sought as opposed to addressing only those activities expected to occur during the term of the permit. In a November 6, 1991, rulemaking (56 FR 56578, 56584-56578), OSM requested that Iowa clarify how it intended to implement 30 CFR 780.21(f) and 784.14(d) regarding PHC determinations. The State proposal satisfies the concerns OSM expressed in Finding No. 15 of the November 6, 1991, Federal Register document. Accordingly, the Director finds the State proposals at IAC 27-40.36(3) and 27-40.38(8) to be consistent with SMCRA and the Federal regulations and is approving them. 19. 27-40.36 (5) and (6), Hydrologic Information a. Water quality measurement. Iowa proposes, at IAC 27-40.36(5), to revise its incorporation by reference of 30 CFR 780.21(a) by adding the following sentence at the end of the regulation: ``The methodology for measurement of the quantity of both surface water and groundwater shall also be described.'' OSM interprets this to mean that such measurement methodologies must be described in the permit application, although the State proposal does not explicitly so provide. The Federal regulation at 30 CFR 780.21(a) requires that all water-quality analyses performed shall be conducted according to the methodology in the 15th edition of ``Standard Methods for the Examination of Water and Wastewater'' or the methodology in 40 CFR Parts 136 and 434 but the regulation does not specify that the methodology for measurement of the quantity of both surface water and groundwater shall also be described. However, section 30 CFR 777.13(a) requires all technical data submitted in the application be accompanied by, among other things, a description of the methodology used to collect and analyze the data. Iowa incorporates 30 CFR 777.13(a) at IAC 27-40.33(207). Hence, the addition of this proposed language simply reiterates the need for a description of the methodology used. Therefore, The Director is approving Iowa's proposed revision at IAC 27-40.36(5). b. Water information requirements. Iowa proposes, at IAC 27- 40.36(6), to revise its incorporation by reference of 30 CFR 780.21(d) by deleting the phrase ``may be required by the regulatory authority'' and replacing it with the phrase ``is required.'' The deleted phrase provided the State with discretion whether to require actual surface and groundwater information be provided when modeling techniques, interpolation or statistical techniques are included in the permit application. Iowa, by removing this phrase, will now require the actual surface and groundwater information to be included in all permits applications. The Director finds that this is a matter left to the discretion of the State regulatory authority under the Federal regulations. Accordingly, the Director finds this proposed revision at IAC 27- 40.36(6) to be no less effective than the Federal regulations and is approving it. 20. IAC 27-40.37(4), Cross Sections, Maps, and Plans Iowa proposes to revise its rule at 27-40.37(4) to correct a typographical error. The current language provides that the first sentence in incorporated 30 CFR 783.24, dealing with informational requirements for underground mining permit applications, is changed to read ``The permit application shall include cross sections at a vertical exaggeration of 10:1, maps at a scale of 1:2400, and plans showing. . . .'' The State provision thus specifies more detailed requirements for cross sections and maps than are specified in the Federal regulations at 30 CFR 783.25(a). This State provision, along with IAC 27-40.35(a), the parallel State provisions for surface mining permit applications, was approved by OSM on November 6, 1991 (56 FR 56578, 56579-56580), as a provision that added specificity to the Iowa program without adversely affecting other aspects of the program. Iowa, in its July 8, 1993, submission proposed to correct the provision to require cross sections with a vertical exaggeration of 1:10, instead of 10:1. However, in revising the provision, Iowa inadvertently created another typographical error by requiring cross sections with a vertical exaggeration of 10:11:10. Consequently, Iowa, in a letter dated August 20, 1993, submitted an editorial clarification to is revised rule to clarify that the provision requires cross sections with a vertical exaggeration of 1:10. OSM understands Iowa's intent to exaggerate the vertical scale of a relief map or cross section in order to make the map or section more clearly perceptible. Therefore, in Iowa's case, the scale of vertical representation is exaggerated 10 times compared to the horizontal. The Director finds this proposed revision to be no less effective than the Federal requirement and is approving it. 21. IAC 27-40.39(8), IAC 27-40.67.1, and IAC 27-40.67(3), Coal Preparation Plants Not Located Within the Permit Area of a Mine Iowa proposes to revise IAC 27-40.39(8) to require that the following clarifying sentence be added to incorporated 30 CFR 785.21(a): ``An off-site processing plant operated in connection with the mine but off the mine site will be regulated without regard to its proximity to the mine.'' Iowa also proposes to add a rule at IAC 27- 40.67(1) that would delete the Federal regulation 30 CFR 827.1 from Iowa's incorporation by reference of 30 CFR Part 827. Finally, Iowa proposes to add a rule at IAC 27-40.67(3) that states ``[p]roximity shall not be the decisive factor in deciding to regulate an offsite processing plant.'' These proposed rule changes are in response to, and satisfy, required program amendments placed on Iowa's program at 30 CFR 915.16(a)(6) and (13) in a November 6, 1991 (56 FR 56578, 56594-56595), rulemaking action. These proposed rule changes are also in accordance with OSM's latest clarification of its position regarding regulation of off-site coal preparation plants. In a final rule Federal Register notice published on January 8, 1993, (58 FR 3466, 3468) OSM stated its position as follows: OSM's position on the proximity issue, as clarified today in this final rule, is that surface mining regulatory authorities may consider geographic proximity as a factor in determining whether off-site coal processing facilities operate in connection with a mine as long as proximity is not the decisive factor. To allow proximity to be the decisive factor would render ``in connection with'' equivalent to ``at or near.'' That is not the Secretary's intent. Therefore, the Director finds Iowa's proposed rules at IAC 27- 40.39(8), IAC 27-40.67(1), and IAC 27-40.67(3) to be consistent with the Federal program and is approving them. The Director will amend 30 CFR 915.16(a) by removing the required program amendments at 30 CFR 915.16(a)(6) and 30 CFR 915.16(a)(13). 22. IAC 27-40.51(7), Bond Release Application Iowa proposes to revise its rules at IAC 27-40.51(7) to modify 30 CFR 800.40(a)(2), as incorporated by reference into the Iowa program, by deleting the phrase ``Within 30 days after an application for bond release has been filed with the regulatory authority, the permittee shall submit a copy of an advertisement placed'' and inserting in its place the following: ``After an application for bond release is deemed complete by the division, an advertisement shall be placed by the permittee within 30 days of the date of notification of completeness.'' In addition, Iowa proposes to add the following sentence after the first sentence of 30 CFR 800.40(a)(2), as modified: ``The permittee shall submit a copy of the advertisement to the division within 30 days of the last publication.'' The Federal regulations at 30 CFR 800.40(a)(2) do not require a permittee to obtain a ``notification of completeness'' prior to placing an advertisement announcing an application for bond release. Under the Federal regulations, the advertisement is placed within 30 days after the application has been filed with the regulatory authority. Iowa proposes to delay the advertisement until it can verify that the application is complete. While the concept of requiring a permittee to obtain a notification of completeness prior to placing the advertisement is not considered less effective than the Federal program, the implementation of this concept would render Iowa's program less effective than the Federal program because of the inherent contradiction this revision would create in the State rules regarding applicable time limits for the processing of bond release applications. That is, the Iowa proposal retains the provision of the Federal regulations at 30 CFR 800.40(b)(2) that requires the regulatory authority to notify the involved parties of its decision on the bond release application ``[w]ithin 60 days from the filing of the bond release application * * *'' However, under the proposed revision, once an application is submitted, and allowance is made for: (1) The permittee obtaining a notice of completeness; (2) the permittee's 30- day time frame for placing the newspaper advertisement; (3) the running of the advertisement of four successive weeks; and (4) the permittee's 30 day time frame for submitting a copy of the advertisement to the regulatory authority, it would be virtually impossible for the regulatory authority to ever comply with the 60-day notification requirement of 30 CFR 800.40(b)(2). Therefore, the Director finds Iowa's proposed rule at 27-40.51(7) is less effective than the Federal regulations at 30 CFR 800.40(a)(2) and is not approving it. 23. IAC 27-40.63(207) and (2), Contemporaneous Reclamation, Backfilling and Grading Time and Distance Requirements Iowa proposes, at IAC 27-40.63(207), to incorporate by reference the Federal regulations at 30 CFR Part 816 as they were in effect on July 1, 1992. This would include the Federal regulation at 30 CFR 816.101 concerning backfilling and grading time and distance requirements. The Federal regulation at 30 CFR 816.101 was suspended on July 31, 1992 (57 FR 33874), in compliance with a Joint Stipulation of Dismissal dated April 16, 1992, entered by the United States District Court for the District of Columbia in National Coal Association and American Mining Congress v. U.S. Department of the Interior, et al., Civil No. 92-0408-CRR. The impact of this suspension is that all coal mining operations are subject to the State-specific contemporaneous reclamation rules currently in effect. In addition, Iowa, at IAC 27-40.63(2), proposes to delete the last sentence of 30 CFR 816.100, concerning contemporaneous reclamation, from its incorporation by reference of 30 CFR Part 816, and replace it with the requirement that: Contemporaneous reclamation shall not exceed 180 days following coal removal and shall not be more than four spoil ridges behind the pit being worked, the spoil from the active pit being considered the first ridge. The regulatory authority may grant additional time for rough backfilling and grading if the permittee can demonstrate, through a detailed written analysis under 30 CFR 780.18(b)(3), that additional time is necessary. Since the Federal provision at 30 CFR 816.100 only contains one sentence, the Director interprets Iowa's intent to be a complete deletion of the Federal provision at 30 CFR 816.100. The State's proposed substitute language for 30 CFR 816.100 is substantively the same as the language found in the Federal regulations at 30 CFR 816.101 (a)(2) and (b). The combination of the State's proposed substitute language for 30 CFR 816.100 and the incorporation of 30 CFR 816.101, will provide the Iowa program with backfilling and grading time and distance performance standards. Iowa's deletion of 30 CFR 816.100 which requires backfilling, grading, topsoil replacement, and revegetation to occur as contemporaneously as practicable on all lands disturbed by surface mining activities, does not render Iowa's program less effective than the Federal program because contemporaneous reclamation requirements are found elsewhere in the Iowa program. As discussed above, the Iowa program contains time and distance performance standards for backfilling and grading. Moreover, the contemporaneous reclamation requirement for revegetation, incorporated by reference by Iowa at IAC 27-40.63(207), is provided for at 30 CFR 816.113. With regard to the requirement of 30 CFR 816.100 that topsoil replacement occur as contemporaneously as practicable with mining operations, while there is no specific State counterpart provision, logic maintains that if revegetation is completed contemporaneously, topsoil replacement, which must be done prior to revegetation, is also contemporaneous. Nevertheless, the Director finds that, in order to be no less effective than the requirements of the Federal regulations at 30 CFR 816.100, Iowa must amend its program to explicitly require that topsoil replacement occur as contemporaneously as practicable with mining operations. Therefore, the Director finds Iowa's proposed rule at IAC 27- 40.63(2) to be no less effective than the Federal program and is approving it. The Director also finds that Iowa's incorporation of the Federal regulation at 30 CFR 816.101 does not render its program less effective than the Federal program and is approving it. However, the Director is requiring Iowa to further amend its program to explicitly require that topsoil replacement occur as contemporaneously as practicable with mining operations. 24. IAC 27-40.63(207) and 27-40.64(207), Design Criteria for the Construction or Modification of Coal Mine Waste Refuse Piles Iowa proposes to revise its rules at IAC 27-40.63(207) and 27- 40.64(207) by incorporating by reference the Federal regulations at 30 CFR Parts 816 and 817, including 30 CFR 816.83 and 817.83, as they existed on July 1, 1992. Iowa's current rules, approved by the Director in a November 6, 1991, rulemaking (56 FR 56578), incorporate the Federal regulations at 30 CFR 816.83 and 817.83 as they existed on July 1, 1987, including the editorial notes at the end of these regulations. These editorial notes state that 30 CFR 816.83 and 817.83 are suspended insofar as they ``permit the construction of coal refuse piles using lifts of greater than 2 feet thickness.'' The Director, in the same November 6, 1991, rulemaking, placed a required program amendment on Iowa's program at 30 CFR 915.16(a)(10). This required program amendment directed Iowa to amend its rules to provide design criteria, specifically, for lift thickness and long-term stability. Iowa has chosen, instead, to incorporate the current Federal regulations at 30 CFR 816.83 and 817.83, as reinstated on June 9, 1988 (53 FR 21764, 21765-21766), that do not impose specific design criteria for lift thickness and long-term stability, but instead impose performance standards to assure stability. The Director finds that Iowa's proposed revision at IAC 27- 40.63(207) and 27-40.64(207) regarding design criteria for the construction or modification of coal mine waste refuse piles is no less effective than the Federal regulations and is approving them. Consequently, the Director is removing the required program amendment at 30 CFR 915.16(a)(10). 25. IAC 27-40.63(9), Impoundment Inspections Iowa proposes to revise its rules at 27-40.63(9) by adding the following sentence to 30 CFR 816.49(a)(10)(i), as incorporated by reference into the State program: ``Yearly inspection of the impoundments shall be done in the second quarter of each calendar year, and the inspection report shall be submitted to the Division with the second quarter water monitoring report.'' The Division, by adopting this revision, is fixing the time of the yearly inspections. The corresponding Federal regulation requires a yearly inspection but does not set a specific time that the yearly inspection must be conducted. Therefore, the State regulatory authority is implicitly given the discretion to provide for such specific time frames. Therefore, the Director finds Iowa's proposed revision at IAC 27- 40.63(9) to be no less effective than the counterpart Federal regulation and is approving it. 26. IAC 27-40.63(12), Disposal of Noncoal Mine Wastes Iowa proposes to revise its rules at IAC 27-40.63(12) by deleting 30 CFR 816.89, dealing with disposal of noncoal mine wastes, from the State's incorporation by reference of 30 CFR Part 816 and inserting, in lieu thereof, the following: (a) Noncoal mine wastes including, but not limited to, grease, garbage, abandoned mining machinery, lumber and other combustible materials generated during mining activities shall be placed and stored in a controlled manner in a landfill permitted by the Iowa department of natural resources (DNR) pursuant to 561 IAC 101, 102, and 103. Lubricants, paints, and flammable liquids may not be buried in the State of Iowa but, along with and (sic) other toxic wastes, must be disposed of in the legally prescribed manner. Iowa law prohibits final disposal of noncoal wastes within the permit area. Pending final disposal at a permitted DNR facility, noncoal mine waste shall be placed and stored in a controlled manner in a designated portion of the permit area so as to ensure that leachate and surface runoff do not degrade surface or ground water, that fires are prevented and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings. Noncoal mine waste shall at no time be deposited in a refuse pile or impounding structure. No excavation for or storage of noncoal mine waste shall be located within eight feet of any coal outcrop or coal storage area. (b) Final disposal of noncoal mine wastes shall be in a designated, State-approved solid waste disposal site permitted by the Iowa department of natural resources pursuant to 561 IAC 101, 102, and 103. (c) Notwithstanding any other provision in this chapter, any noncoal mine waste defined as ``hazardous'' under section 3001 of the resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 as amendment) and 40 CFR Part 261 shall be handled in accordance with the requirements of Subtitle C of RCRA and any implementing regulations. The State proposal differs from the Federal provision at 30 CFR 816.89 in several respects. First, Iowa's proposed rule makes it clear that, in Iowa, lubricants, paints, and flammable liquids may not be buried and must be disposed of in the legally prescribed manner. This difference between the State and the Federal provisions does not render the State program less effective in meeting SMCRA's requirements than the Federal regulation since the Federal provision at 30 CFR 816.89(b) explicitly provides that operation of a disposal site shall be conducted in accordance with all local, State, and Federal requirements. Second, Iowa's proposed rule also makes it clear that there can be no final disposal of noncoal wastes within the permit area. Instead, final disposal of noncoal mine wastes must be in a landfill permitted by the Iowa Department of Natural Resources. This provision of the Iowa program is no less effective in meeting SMCRA's requirements than the Federal counterpart provisions since the Federal provision at 30 CFR 816.89(b) requires that final disposal of noncoal mine waste shall be in a designated disposal site in the permit area or a State-approved solid waste disposal area. Third, at subsection (c), the Iowa proposal requires that any noncoal mine waste defined as ``hazardous'' under section 3001 of the Resource Conservation and Recovery Act (RCRA) and the Federal regulations at 40 CFR Part 261 shall be handled in accordance with the requirements of Subtitle C of RCRA and any implementing regulations. This portion of the Iowa proposal is substantively similar to a former Federal provision that existed at 30 CFR 816/817.89(d). See (48 FR 43994, 44006) September 26, 1983. The Federal provision was suspended on November 20, 1986 (51 FR 41952, 41962) to implement the decision of the U.S. District Court for the District of Columbia in In re: Permanent Surface Min. Regulation Litigation, 620 F. Supp. 1519, 1538 (D.D.C. 1985). The court remanded the rule because OSM failed to comply with the public notice and comment requirements of the Administrative Procedure Act, 5 U.S.C. Secs. 500-706, in promulgation of the Federal provision. OSM subsequently deleted 30 CFR 816/817.89(d) in the Federal Register notice dated December 17, 1991 (56 FR 65612, 65635-65636). As discussed in the December 17, 1991, Federal Register notice, in deleting the provision, OSM reasoned that Congress had assigned permitting, inspection, and enforcement responsibilities under RCRA to the Environmental Protection Agency (EPA) and that SMCRA did not require OSM or the State regulatory authorities to assume such responsibilities. It was further reasoned that Congress would not appropriate funds to OSM or State regulatory authorities for this task. With the deletion of this requirement, OSM stated that it would continue ``consistent with its jurisdiction under the Act, to coordinate its regulatory program with EPA to facilitate the implementation of RCRA regulations.'' However, OSM's action does not prohibit or prevent a State regulatory authority from choosing to assume such responsibilities in coordination with EPA. Under section 505(b) of SMCRA and 30 CFR 730.11, the State regulatory authority has the discretion to impose land use and environmental controls and regulations on surface coal mining and reclamation operations for which no Federal counterpart provision exists. Section 505(b) and 30 CFR 730.11 dictate that such State provisions shall not be construed to be inconsistent with the Federal program. Because there is no Federal counterpart provision to the paragraph (c) of proposed IAC 27-40.63(12), OSM evaluated Iowa's proposal based upon its consistency with section 515(b)(14) of SMCRA. Section 515(b)(14) of SMCRA generally requires that all debris, acid-forming materials, toxic materials, or materials constituting a fire hazard, are to be treated or buried and compacted or otherwise disposed of in a manner designed to prevent contamination of ground or surface waters. Because Iowa's proposal here provides for the handling and disposal of ``hazardous'' noncoal mine wastes in a manner designed to prevent contamination of ground or surface waters, i.e., pursuant to the provisions of subtitle C of RCRA, the Director finds that Iowa's proposed provision at paragraph (c) of proposed IAC 27-40.63(12) is not inconsistent with section 515(b)(14) of SMCRA and is approving the provision. In summary, then, the Director finds that Iowa's proposed revisions at IAC 27-40.63(12) are consistent with SMCRA and the Federal regulations and is approving them. The Director, by way of this notice, is requesting that Iowa correct a typographical error in its rule in the phrase ``along with and other toxic wastes.'' The word ``and'' should be corrected to read ``any.'' 27. IAC 27-40.68, Special Permanent Program Performance Standards--In Situ Mining Iowa proposes, at IAC 27-40.68, to delete the incorporation by reference of 30 CFR Part 828, dealing with performance standards for in situ mining operations, and to reserve IAC 27-40.68. Therefore, in situ mining operations are prohibited in Iowa and the State cannot approve any such operations since there are no rules to govern such operations. In accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State regulatory authority has the discretion to impose land use and environmental control and regulations on surface coal mining and reclamation operations that are more stringent than those imposed under SMCRA and the Federal regulations. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such provisions shall not be construed to be inconsistent with the Federal program. Therefore, the Director is approving the proposed revision at IAC 27-40.68. 28. IAC 27-40.71(4), State Regulatory Authority--Inspection and Enforcement, and 27-40.74(3), Civil Penalties Iowa proposes, at IAC 27-40.71(4) and IAC 27-40.74(3), to delete from its incorporation by reference of 30 CFR 840.11(g)(3)(ii) and 845.15(b)(2) the phrase ``sections 518(e), 518(f), 521(a)(4) or 521(c) of the Act'' and replace it with ``Iowa Code sections 207.15, 207.15, 207.14 and 207.14,'' respectively. The proposed State substitute citations are not exact counterpart provisions to the provisions of SMCRA referenced at 30 CFR 840.11(g)(3)(ii) and 845.15(b)(2). Iowa, in a letter dated August 30, 1993 (Administrative Record No. IA-389), proposed to editorially clarify its program at IAC 27-40.71(4) by providing alternate State substitute citations that are the exact counterparts to the Federal provisions cited at 30 CFR 840.11(g)(3)(ii). Therefore, the Federal Citations at sections 518(e), 518(f), 521(a)(4) and 521(c) of SMCRA are proposed to be replaced by Iowa Code subsections 207.15(6), 207.15(7), 207.14(3), and 207.14(8), respectively. The Director finds Iowa's proposed revision at IAC 27-40.71(4) to be no less effective than the Federal counterpart regulation and is approving it. However, the Director finds that the State proposal at IAC 27-40.74(3) is less effective than its Federal counterpart provision. The Federal provision at 30 CFR 845.15(b)(2) refers to very specific enforcement procedures that the regulatory authority should take under particular circumstances. In contrast, the State proposal at IAC 27-40.74(3) merely refers to the statutory sections of the Iowa program dealing with enforcement in general. Therefore, the Director is not approving the proposed revision at IAC 27-40.74(3). Iowa is required to amend its program by providing the same specific editorial citation corrections at IAC 27-40.74(3) as it did at IAC 27/40.71(4). 29. IAC 27-40.74(207) and (8), Use of Civil Penalties for Reclamation Iowa proposes, at IAC 27-40.74(207), to incorporate 30 CFR Part 845 as in effect on July 1, 1992. This incorporation by reference includes 30 CFR 845.21 which deals with the use of Federal funds collected from civil penalties by OSM for reclamation. The Director recognizes that 30 CFR 845.21 deals with the disbursement of money collected by the United States from the assessment of civil penalties and does not have application within the State program. Iowa also proposes to revise its rules at IAC 27-40.74 by adding a paragraph (8) which provides as follows: Use of civil penalties for reclamation. In accordance with Iowa Code section 207.10(6), the division may expend funds collected from civil penalties to perform reclamation work on sites where the bond has been forfeited and additional funds are needed to complete the reclamation of the site. The Federal regulations at 30 CFR 845.21 address only how the Federal government is to allocate its funds. Therefore, Iowa has discretion as to how it spends its monies collected from civil penalties. Accordingly, the Director finds Iowa's proposed rule at IAC 27- 40.74(8) not to be inconsistent with the Federal program and is approving it. 30. IAC 27-40.74(5)a., Procedures for Assessment Conference Iowa proposes, at IAC 27-40.74(5)a. to revise its rule by changing the number of days that a person who was issued a notice of assessment has to provide written request for an assessment conference to review the proposed assessment. Iowa proposes to increase the timeframe from 15 days from the date the notice of assessment was mailed to 30 days from the date the notice of assessment was mailed. The Federal regulation at 30 CFR 845.18 allows the person to request an assessment conference within 30 days from the date that the proposed assessment is received. Since the number of days within which a person may request an assessment conference is a procedural matter, Iowa's proposal must be evaluated from the point of view of its similarity to the Federal rules in affording rights and remedies to persons. See (46 FR 53376) October 28, 1981. The Director finds that the time difference between the date of mailing versus the date of receipt is minor enough to be considered similar and, therefore, finds the proposed revision at IAC 27-40.74(5) to be no less effective than the Federal regulation and is approving it. 31. IAC 27-40.75(207), Individual Civil Penalties Iowa proposes, at IAC 27-40.75(207), to incorporate by reference the Federal regulations at 30 CFR Part 846 as in effect on July 1, 1992, dealing with individual civil penalties. Some exceptions to this incorporation by reference are proposed and are discussed below. a. Scope. Iowa proposes, at IAC 27-40.75(1), to delete from incorporation by reference, the Federal regulation at 30 CFR 846.1, Scope. This provision merely states that Part 846 covers assessment of individual civil penalties (ICP's) under section 518(f) of the Act. It does not set out any separate substantive requirement relating to ICP's. The Director, therefore, finds that the proposed revision at IAC 27-40.75(1) does not render Iowa's program less effective than the Federal program and is approving it. b. Violation, failure or refusal. Iowa proposes, at IAC 27- 40.75(2), to delete paragraphs (1) and (2) from the definition of ``violation, failure or refusal'' at 30 CFR 846.5, and insert in lieu thereof, substitute paragraphs (1) and (2). Iowa's proposed language is substantively similar to the deleted Federal language except that, where the Federal regulation provides the specific statutory cite of section 518(b) of the Act as being excepted from failure or refusal to comply with orders, Iowa substitutes a general reference to Iowa Code section 207.15. As explained in the preamble to the final rule for 30 CFR 846.5 (53 FR 3664, 3666, February 8, 1988), the specific exception for orders issued pursuant to section 518(b) of the Act in the definition of violation, failure or refusal is required by section 518(f) of SMCRA: Section 518(f) specifically prohibits the Secretary from assessing penalties for failure to comply with an order incorporated in a civil penalty decision rendered under section 518(b), presumably because it would be counter-productive to assess an individual civil penalty for the nonpayment of the original civil penalty assessed against the corporate permittee. Both section 518 of SMCRA and the State counterpart provision at Iowa Code section 207.15 cover more than just the original civil penalty assessed against the corporate permittee. Accordingly, Iowa's proposal to completely exempt all orders issued under Iowa code section 207.15 is less effective in meeting SMCRA's requirements than the Federal rule because section 518(f) exempts only one particular type of order issued under section 518. The Director is not approving Iowa's proposed revision at IAC 27-40.75(2) to the extent that Iowa's proposed rule provides for the exemption of all orders issued under Iowa Code section 207.15. c. Service. Iowa proposes, at IAC 27-40.75(4), to delete from its incorporation by reference the Federal regulation at 30 CFR 846.17(c), dealing with service of civil penalty assessments, and insert in lieu thereof the following: Service. For purposes of this section, service is sufficient if it would satisfy Division III of the Iowa rules of civil procedure for service of an original notice and petition. Iowa provided OSM with a copy of the service requirements from the Division III of the Iowa Rules of Civil Procedure for review (Administrative Record No. IA-383). Upon review, the Director finds that the Division III of the Iowa Rules of Civil Procedure for service of an original notice and petition provision is the State counterpart provision to rule 4 of the Federal Rules of Civil Procedure. The Director notes that Division III of the Iowa Rules of Civil Procedure, unlike 30 CFR 846.17(c), does not appear to normally allow service to be performed on the individual to be assessed an individual civil penalty by certified mail. Proposed State alternatives to procedural rules contained in the Federal regulations are evaluated ``from the point of view of their similarity to the Secretary's rules in affording rights and remedies to persons'' (46 FR 53376, October 28, 1981). The Director finds that the State proposal affords additional procedural rights and remedies to persons by not allowing service by certified mail. Accordingly, the Director finds that Division III of the Iowa Rules of Civil Procedure is not inconsistent with the Federal program and is approving it. The Director also finds that the IAC 27-40.75(4) incorporation of Division III of the Iowa Rules of Civil Procedure does not render its program less effective than the Federal regulation at 30 CFR 846.17(c) and is approving it as well. IV. Public and Agency Comments Public Comments For a complete history of the opportunity provided for public comment on the proposed amendment, please refer to ``Submission of Amendment.'' Because no one requested an opportunity to testify at a public hearing, no hearing was held. No public comments were received. Agency Comments Pursuant to 30 CFR 732.17(h)(11)(i), comments were solicited from the Administrator of the Environmental Protection Agency (EPA), and various other Federal agencies with an actual or potential interest in the Iowa program. Comments were also solicited from various State agencies. Environmental Protection Agency (EPA) Concurrence Pursuant to 30 CFR 732.17(h)(11)(ii), concurrence was solicited from the EPA for those aspects of the proposed amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act and the Clean Air Act. By letter dated January 4, 1993 (Administrative Record No. IA-376), the EPA regional office in Kansas City, Kansas responded that it had no comment. By letter dated October 19, 1993 (Administrative Record No. IA- 392), the EPA headquarters office in Washington, D.C. concurred with Iowa's proposed amendment as it related to air or water quality standards promulgated under the authority of the Clean Water Act and the Clean Air Act. No other agencies commented on the proposed amendment. State Historic Preservation Officer (SHPO) and Advisory Council on Historic Preservation Comments (ACHP) 30 CFR 732.17(h)(4) requires that all amendments that may have an effect on historic properties be provided to the SHPO and ACHP for comment. Comments were solicited from these offices. No comments were received from SHPO or ACHP. V. Director's Decision Based on the above findings, the Director is approving the proposed amendment submitted by Iowa on November 23, 1992, and revised on July 21, 1993, with the exception of those provisions found to be inconsistent with SMCRA or the Federal regulations and identified in the codified portion of this notice under 30 CFR 915.16(b). The Director is not approving certain provisions of the Iowa amendment for reasons set forth in Findings: no. 13b, IAC 27-40.31(14), concerning willful suppressing or falsifying of facts in permit applications: no. 14a, IAC 27-40.32(1), concerning guidelines for permit revisions and amendments; no. 22, IAC 27-40.51(7), concerning bond release applications, no. 28, IAC 27-40.71(4), concerning enforcement procedures; and no. 31b, IAC 27-40.75(2), concerning the definition of violation, failure or refusal. The Director is approving but requiring Iowa to further amend its regulations as discussed in Findings: no. 8, IAC 27-40.3(207), concerning petitions to initiate rulemaking; no. 9, IAC 27-40.4(9), concerning the definition of ``previously mined area;'' and no. 23, IAC 27-40.63(207) and (2), concerning contemporaneous reclamation, backfilling and grading time and distance requirements. The Director is approving the Iowa proposed rules with the provision that they be fully promulgated in identical form to the rules submitted to and reviewed by OSM and the public. The Federal regulations at 30 CFR Part 915 codifying decisions concerning the Iowa program are being amended to implement this decision. This final rule is being made effective immediately to expedite the State program amendment process and to encourage States to bring their programs into conformity with the Federal standards without undue delay. Consistency of State and Federal standards is required by SMCRA. VI. Effect of Director's Decision Section 503 of SMCRA provides that a State may not excercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly 30 CFR 732.17(a) requires that any alteration of an approved State program be submitted to OSM for review as a program amendment. Thus, any changes to the State program are not enforceable until approved by OSM. The Federal regulations at 732.17(g) prohibit any unilateral changes to approved State programs. In the oversight of the Iowa program, the Director will recognize only the statutes, regulations, and other materials approved by OSM, together with any consistent implementing policies, directives, and other materials, and will require the enforcement by Iowa of only such provisions. VII. Procedural Determinations Compliance with Executive Order 12778 The Department of the Interior has conducted the reviews required by section 2 of Executive Order 12778 (Civil Justice Reform) and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met. Compliance With Executive Order 12866 This final rule is exempted from review by the Office of Management and Budget under Executive Order 12866 (Regulatory Planning and Review). Compliance With the National Environmental Policy Act No environmental impact statement is required for this rule since section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. 4332(2)(C). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3507 et seq. Compliance With the Regulatory Flexibility Act The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Hence, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. VIII. List of Subjects in 30 CFR Part 915 Intergovernmental relations, Surface mining, Underground mining. Dated: January 28, 1994. Raymond L. Lowrie, Assistant Director, Western Support Center. For the reasons set out in the preamble, Title 30, Chapter VII, Subchapter T, of the Code of Federal Regulations is amended as set forth below: PART 915--IOWA 1. The authority citation for Part 915 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. 2. Section 915.15 is amended by adding paragraph (j) to read as follows: 915.15 Approval of regulatory program amendments. * * * * * (j) With the exceptions of IAC 27-40.31(14), concerning willfull suppressing or falsifying of facts in permit applications, IAC 27- 40.32(1), concerning guidelines for permit revisions and amendments, IAC 27-40.51(7), concerning bond release applications, and IAC 27- 40.75(2), concerning the definition of violation, failure or refusal, the following revisions to the Iowa Administrative Code submitted to OSM on November 23, 1992, as revised on July 8, 1993, are approved effective February 8, 1994. IAC 27-40.1, Authority and scope; 27-40.3, General; 27-40.4, Permanent regulatory program and exemption for coal extraction incidental to the extraction of other minerals; 27-40.5, Restrictions on financial interests of State employees; 27-40.6, Exemptions for coal extraction incident to government-financed highway or other constructions; 27-40.7, Protection of employees; 27-40.11, Initial regulatory program; 27-40.12, General performance standards--initial program; 27-40.13, Special performance standards--initial program; 27- 40.21, Areas designated by an Act of Congress; 27-40.22, Criteria for designating areas as unsuitable for surface coal mining operations; 27- 40.23, State procedures for designating areas unsuitable for surface coal mining operations; 27-40.30, Requirements for coal exploration; 27-40.31, Requirements for permits and permit processing; 27-40.32, Revision; renewal; and transfer, assignment, or sale of permit rights; 27-40.33, General content requirements for permit applications; 27- 40.34, Permit application--minimum requirements for legal, financial, compliance, and related information; 27-40.35, Surface mining permit applications--minimum requirements for information on environmental resources; 27-40.36, Surface mining permit applications--minimum requirements for reclamation and operation plan; 27-40.37, Underground mining permit applications--minimum requirements for information on environmental resources; 27-40.38, Underground mining permit applications--minimum requirements for reclamation and operation plan; 27-40.39, Requirements for permits for special categories of mining; 27-40.41, Permanent regulatory program--small operator assistance program; 27-40.51, Bond and insurance requirements for surface coal mining and reclamation operations under regulatory programs; 27-40.61, Permanent program performance standards--general provisions; 27-40.62, Permanent program standards--coal exploration; 27-40.63, Permanent program standards--surface mining activities; 27-40.64, Permanent program standards--underground mining activities; 27-40.65, Special permanent program standards--auger mining; 27-40.66, Special permanent program standards--operations on prime farmland; 27-40.67, Special permanent program standards--coal preparation plants not located within the permit area of a mine; 27-40.68, Special permanent program standards--in situ processing; 27-40.71, State regulatory authority-- inspection and enforcement; 27-40.73, Enforcement; 27-40.74, Civil penalties; 27-40.75 Individual civil penalties; 27-40.81, Permanent regulatory program requirements--standards for certification of blasters; 27-40.82, Certification of blasters; and 27-40.92, Contested cases. 3. Section 915.16 is amended by revising paragraph (a) introductory text and paragraph (a)(1), removing and reserving paragraphs (a)(2)- (a)(4), revising paragraph (a)(5), removing and reserving paragraphs (a)(6)-(a)(21) and by adding paragraph (b) to read as follows: Sec. 915.16 Required program amendments. (a) By April 11, 1994, Iowa shall amend its program at: * * * * * (1) IAC 27-40(9) by providing a definition of ``previously mined area'' that is no less effective than the current Federal definition at 30 CFR 701.5. * * * * * (5) IAC 27-40.32(1) by requiring that the Federal regulations at 30 CFR 773.13, 773.19(b) (1) and (3), and 778.21 apply, at a minimum, to all significant permit revisions. * * * * * (b) By April 11, 1994, Iowa shall amend its program at: (1) IAC 27-40.3(207) by providing a rule reference to IAC 21-3 as the source for procedures regarding petitions for initiating rulemaking. (2) IAC 27-40.63(207) and (2), by explicitly requiring that topsoil replacement occur as contemporaneously as practicable with mining operations. (3) IAC 27-40.74(3) by providing exact State counterpart provisions to the provisions of SMCRA referenced at 30 CFR 845.15(b)(2). [FR Doc. 94-2729 Filed 2-7-94; 8:45 am] BILLING CODE 4310-05-M