[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]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 915

 

Iowa Permanent Regulatory Program

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

ACTION: Final rule.

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SUMMARY: OSM is announcing the approval of a program amendment 
submitted by Iowa as a modification to the State's permanent regulatory 
program (hereinafter, referred to as the ``Iowa program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 
amendment pertains to exemptions for coal extraction incidental to the 
extraction of other minerals, restriction of financial interests of 
State employees, exemption of coal extraction incident to government-
financed highway or other construction, protection of employees, 
initial regulatory program, areas unsuitable, permits for operations 
and exploration, small operator assistance, bonding and insurance, 
permanent program performance standards, inspection and enforcement, 
blaster certification, and contested cases and public hearings. The 
amendment is intended to revise the State program to be consistent with 
the corresponding Federal standards, clarify ambiguities, and improve 
operational efficiency.


EFFECTIVE DATE: February 8, 1994.


FOR FURTHER INFORMATION CONTACT: Jerry R. Ennis, Telephone: (816) 374-
6405.

SUPPLEMENTARY INFORMATION:

I. Background on the Iowa Program

    On January 21, 1981, the Secretary of Interior conditionally 
approved the Iowa program. General background information on the Iowa 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval of the Iowa program can be 
found in the January 21, 1981, Federal Register (46 FR 5885). 
Subsequent actions concerning Iowa's program and program amendments can 
be found at 30 CFR 915.15 and 915.16.

II. Submission of Amendment

    From October 1, 1983, to December 20, 1989, a number of changes 
were made to Federal regulations concerning surface coal mining and 
reclamation operations. During this time period, pursuant to Federal 
regulations at 30 CFR 732.17, OSM notified Iowa in four separate 732 
letters dated December 12, 1988, (Administrative Record No. IA-336); 
May 11, 1989, (Administrative Record No. IA-340); November 28, 1989, 
(Administrative Record No. IA-347); and February 7, 1990, 
(Administrative Record IA-349), that the State rules must be amended to 
be consistent with the revised Federal regulations.

    By letter dated November 23, 1992 (Administrative Record No. IA-
372), Iowa submitted a proposed amendment to its program pursuant to 
SMCRA. Iowa submitted the proposed amendment with the intent of 
satisfying the outstanding 732 notifications from OSM and the required 
program amendments OSM placed on its program in a November 6, 1991, 
rulemaking action (56 FR 56578) at 30 CFR 915.16(a) of the Federal 
regulations.

    OSM announced receipt of the proposed amendment in the January 14, 
1993, Federal Register (58 FR 4376) and, in the same notice, opened the 
public comment period and provided opportunity for a public hearing on 
the adequacy of the proposed amendment. The public comment period ended 
on February 16, 1993. The public hearing scheduled for February 8, 
1993, was not held because no one requested an opportunity to testify.

    During its review of the amendment, OSM identified concerns related 
to Iowa Administrative Code (IAC) 27-40.1(3), General; 27-40.3(207), 
General; IAC 27-40.4(10), Full water year; IAC 27-40.21(207), Areas 
designated by an Act of Congress; IAC 27-40.31(207), Requirements for 
permits and permit processing; IAC 27-40.32(207), Revision, renewal, 
and transfer, assignment, or sale of permit rights; IAC 27-40.34, 
Permit application--minimum requirements for legal, financial, 
compliance, and related information; IAC 27-40.39(1), Requirements for 
permits for special categories of mining; IAC 27-40.61(1), Permanent 
program performance standards--general provisions; IAC 27-40.63, 
Permanent program performance standards--surface mining activities; IAC 
27-40.67, Permanent program performance standards--coal preparation 
plants not located within the permit area of a mine; IAC 27-40.73(2)g, 
Enforcement; IAC 27-40.74, Civil penalties; and IAC 27-40.75, 
Individual civil penalties. OSM notified Iowa of the concerns by letter 
dated May 10, 1993 (Administrative Record No. IA-381).
    Iowa responded in a letter dated July 8, 1993 (Administrative 
Record No. IA-383), by submitting revised language for the proposed 
amendment to address the concerns raised by OSM. On July 21, 1993, OSM 
published a notice in the Federal Register (58 FR 38991) announcing 
receipt of revised language for the proposed amendment and inviting 
public comment on its adequacy. The public comment period ended August 
5, 1993. By letters dated August 20, 1993 (Administrative Record No. 
IA-388), and August 30, 1993 (Administrative Record No. IA-389), Iowa 
provided OSM with additional information to clarify and correct three 
editorial errors. These clarifications are discussed in the appropriate 
findings to follow.

III. Director's Findings

1. Provisions Not Discussed

    Iowa proposes revisions to its rules that involve minor editorial 
and word changes, and recodification. Iowa also proposes to revise its 
current incorporation by reference of OSM's regulations from those in 
effect as of July 1, 1987, to those in effect as of July 1, 1992.
    The Director finds that these proposed revisions, unless 
specifically discussed below, are no less effective than the Federal 
regulations and is approving them.

2. Provisions Not Discussed That Are Substantively the Same as the 
Counterpart Federal Regulations

    Iowa proposes revisions to rules that contain language that is the 
same or similar to the counterpart Federal regulations, replace Federal 
references and terms with appropriate State references and terms, or 
add specificity without adversely affecting other aspects of the 
program regulation. The Director, therefore, finds that these proposed 
revisions to Iowa's regulations are no less effective in meeting 
SMCRA's requirements than the Federal regulations. These revisions are 
as follows (Federal regulation counterparts are indicated in brackets): 
IAC 27-40.4(207) and 40.4(6), concerning the permanent regulatory 
program and the exemption for coal extraction incidental to the 
extraction of other minerals [30 CFR Part 702]; IAC 27-40.4(7)(f)(2), 
concerning the impact of a request for administrative review by persons 
adversely affected on an exemption determination [30 CFR 702.11(f)(2)]; 
IAC 27-40.4(8)(3), concerning the impact of a petition for 
administrative review on a decision to revoke an exemption [30 CFR 
702.17(c)(3)]; IAC 27-40.31(15), concerning a permittee's right to 
appeal for administrative review [30 CFR 773.21(c)]; IAC 27-40.33(1) 
and (2), concerning general content requirements for permit 
applications [30 CFR 777.11(a)(3) and 777.14(a)]; IAC 27-40.35(1) and 
(3), Vegetation information and land use [30 CFR 779.19(a) and (b)]; 
IAC 27-40.35(9), Climatological information [30 CFR 779.18]; IAC 27-
40.35(13), Identification of public roads [30 CFR 779.24(h)]; IAC 27-
40.51(5), concerning soil productivity levels required for release of 
performance bonds on prime farmlands [30 CFR 800.40(c)(2)]; IAC 27-
40.73(2)g, concerning notification of owners and controllers of a 
permit upon issuance of a cessation order [30 CFR 843.11(g)]; IAC 27-
40.74(6), concerning procedures to prepare a request for a hearing on a 
violation [30 CFR 845.19]; IAC 27-40.74(7), concerning procedures for 
determining final assessment of a violation [30 CFR 845.20]; and IAC 
27-40.75(3), concerning final order and opportunity for review of a 
penalty assessment [30 CFR 846.17(b)(1)].

3. Iowa Code Chapter 207

    In the letter dated July 8, 1993 (Administrative Record No. IA-
383), submitting revised language for the proposed amendment in 
response to OSM concerns, Iowa notified OSM that the Iowa Code has been 
reorganized in an attempt to achieve more logical groupings by agency 
and function in the Code. Therefore, Iowa Code chapter 83 is now Iowa 
Code chapter 207. Iowa indicated that no substantive changes were made 
to the statute. All references to Iowa Code chapter 83 in the Iowa 
Administrative Code have been revised to read Iowa Code chapter 207. 
OSM approves the recodification based upon its understanding that no 
substantive changes were made to the statute.

4. Provisions Adopting Suspended Federal Regulations

    Iowa proposes to adopt by reference several Federal regulations or 
portions thereof that are suspended. In its cover letter dated July 8, 
1993, Iowa indicated it's intention to adopt the suspension rule 
announcements located at the end of the sub-Parts to the Federal 
regulations as published in the Code of Federal Regulations. 
Accordingly, the Director considers any proposed Iowa rule adopting a 
suspended Federal regulation noted in the 30 CFR as of July 1, 1992, to 
also be suspended in the State program. Therefore, the Director finds 
that with this clarification, these proposed State rules are no less 
effective than the Federal counterpart regulations and is approving 
them. The following is a list of the proposed Iowa rules adopting 
suspended Federal regulations as noted in the July 1, 1992, 30 CFR and 
the Federal Register notices that explain the Federal suspensions.
    a. At IAC 27-40.3(207), Iowa incorporates 30 CFR 700.11, 
Applicability, and the suspension notice that suspends paragraph (b) of 
that section insofar as it excepts from the applicability of 30 CFR 
chapter VII:
    (1) Any surface coal mining operations commencing on or after June 
6, 1987; and
    (2) Any surface coal mining operations conducted on or after 
November 8, 1987 (52 FR 21228, 21229, June 4, 1987).
    b. At IAC 27-40.4(207), Iowa incorporates the definition and 
suspension notice for ``affected area'' at 30 CFR 701.5, Definitions 
(51 FR 41952, 41960, November 20, 1986).
    c. At IAC 27-40.12(207), Iowa incorporates 30 CFR 715.17, 
Protection of the hydrologic system, and the suspension notice that 
suspends paragraph (a)(1) of that section insofar as it applies to 
total suspended solids (TSS) discharges (44 FR 77447, 77451, December 
31, 1979).
    d. At IAC 27-40.21(207), Iowa incorporates the definition of the 
term ``significant recreational, timber, economic, or other values 
incompatible with surface coal mining operations'' at 30 CFR 761.5, 
Definitions, and the suspension notice relating to the definition 
insofar as the listed values are evaluated for compatibility solely in 
terms of reclaimability (51 FR 41952, 41960, November 20, 1986).
    e. At IAC 27-40.21(207), Iowa incorporates 30 CFR 761.11, area 
where mining is prohibited or limited, and the suspension notice that 
suspends 30 CFR 761.11(h) (51 FR 41952, 41961, November 20, 1986).
    f. At IAC 27-40.35(207), Iowa incorporates 30 CFR 779.21, soils 
resources information, and the suspension notice that suspends 30 CFR 
779.21 to the extent that it requires soils survey information for 
lands not qualifying as prime farmland (45 FR 51547, 51548, August 4, 
1980).
    g. At IAC 27-40.37(207), Iowa incorporates 30 CFR 783.21, soils 
resources information, and the suspension notice that suspends 30 CFR 
783.21 to the extent that it requires soils survey information for 
lands not qualifying as prime farmland (45 FR 51547, 51548, August 4, 
1980).
    h. At IAC 27-40.63(207), Iowa incorporates 30 CFR 816.46, 
hydrologic balance: siltation structures, and the suspension notice 
that suspends 30 CFR 816.46(b)(2) (51 FR 41952, 41961, November 20, 
1986).
    i. At IAC 27-40.63(207), Iowa incorporates 30 CFR 816.81, coal mine 
waste: general requirements, and the suspension notice that suspends 
paragraph (a) of that section insofor as it allows end dumping or side 
dumping of coal mine waste (51 FR 41952, 41961, November 20, 1986).
    j. At IAC 27-40.64(207), Iowa incorporates 30 CFR 817.46, 
hydrologic balance: siltation structures, and the suspension notice 
that suspends 30 CFR 817.46(b)(2) (51 FR 41952, 41962, November 20, 
1986).
    k. At IAC 27-40.64(207), Iowa incorporates 30 CFR 817.81, coal mine 
waste: general requirements, and the suspension notice that suspends 
paragraph (a) of that section insofar as it allows end dumping or side 
dumping of coal mine waste (51 FR 41952, 41962, November 20, 1986).
    l. At IAC 27-40.71(207), Iowa incorporates 30 CFR 840.11, 
inspections by State regulatory authority, and the suspension notice 
that suspends 30 CFR 840.11(g) and (h) (56 FR 25036, June 3, 1991).

5. Required Program Amendments

    Iowa submitted proposed revisions in response to required program 
amendments at 30 CFR 915.16(a) of the Federal regulations that OSM 
placed on the Iowa program in the November 6, 1991, final rule Federal 
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