[Federal Register Volume 67, Number 234 (Thursday, December 5, 2002)]
[Rules and Regulations]
[Pages 72375-72379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30608]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 915

[IA-007-FOR]


Iowa Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Iowa abandoned mine land 
reclamation plan (Iowa plan) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The Iowa Department of 
Agriculture and Land Stewardship, Division of Soil Conservation (DSC) 
proposed to assume responsibility of the abandoned mine land 
reclamation (AMLR) emergency program in Iowa. DSC also proposed to 
revise the Iowa plan to be consistent with the corresponding Federal 
regulations and to update other portions of its plan to reflect its 
current practices. In addition, we are including Iowa's proposal to 
revise its statute at Iowa Code (IC), Chapter 207.

EFFECTIVE DATE: December 5, 2002.

FOR FURTHER INFORMATION CONTACT: John W. Coleman, Mid-Continent 
Regional Coordinating Center. Telephone: (618) 463-6460. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Iowa Plan
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Iowa Plan

    The Abandoned Mine Land Reclamation Program was established by 
Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns 
over extensive environmental damage caused by past coal mining 
activities. The program is funded by a reclamation fee collected on 
each ton of coal that is produced. The money collected is used to 
finance the reclamation of abandoned coal mines and for other 
authorized activities. Section 405 of the Act allows States and Indian 
Tribes to assume exclusive responsibility for reclamation activity 
within the State or on Indian lands if they develop and submit to the 
Secretary of the Interior for approval, a program (often referred to as 
a plan) for the reclamation of abandoned coal mines. On the basis of 
these criteria, the Secretary of the Interior approved the Iowa plan on 
March 28, 1983. You can find background information on the Iowa plan, 
including the Secretary's findings, the disposition of comments, and 
the approval of the plan in the March 28, 1983, Federal Register (48 FR 
12711). You can find later actions concerning the Iowa plan and 
amendments to the plan at 30 CFR 915.25.

II. Submission of the Amendment

    By letter dated June 14, 2002 (Administrative Record No. AML-IA-
44), Iowa sent us a proposed amendment to its AMLR plan under SMCRA (30 
U.S.C. 1201 et seq.). Iowa sent the amendment at its own initiative and 
in response to a letter dated September 26, 1994 (Administrative Record 
No. AML-IA-39), that we sent to Iowa in accordance with 30 CFR 
884.15(d). Iowa intended to demonstrate its capability to effectively 
undertake the AMLR emergency program on behalf of OSM. Iowa also 
intended to revise the Iowa plan to be consistent with the 
corresponding Federal regulations and to update other portions of its 
plan to reflect its current practices. In addition, we are including 
the revisions Iowa made to its statute at Iowa Code, Chapter 207.
    We announced receipt of the proposed amendment in the August 13, 
2002, Federal Register (67 FR 52659). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on September 12, 2002. We received comments from 
one Federal agency and one State agency.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are 
approving the amendment. Any revisions that we do not discuss below 
concern nonsubstantive wording changes or editorial changes or revised 
cross-references and paragraph notations to reflect organizational 
changes resulting from this amendment.

A. AMLR Emergency Program Demonstration

    Section 410 of SMCRA authorizes the Secretary to use funds under 
the AMLR

[[Page 72376]]

program to abate or control emergency situations in which adverse 
effects of past coal mining pose an immediate danger to the public 
health, safety, or general welfare. In a Federal Register notice dated 
September 29, 1982 (47 FR 42729), we invited states to amend their AMLR 
plans for the purpose of undertaking emergency reclamation programs on 
our behalf and published guidelines outlining three requirements for 
State assumption of the AMLR emergency program. For us to grant 
emergency authority to the State agency, the agency must demonstrate 
that it has the following: (1) statutory authority to undertake 
emergencies, (2) technical capability to design and supervise the 
emergency work, and (3) administrative mechanisms to respond quickly to 
emergencies either directly or through contractors.
1. Statutory Authority
    The DSC has had statutory authority under IC section 207.21 to 
administer an emergency response program since approval of the Iowa 
plan on March 28, 1983. In order to implement this authority, Iowa's 
regulations at Iowa Administrative Code (IAC) 27-50.70 and 27-50.90 
provide for right of entry on any land where an emergency exists. In a 
letter dated November 17, 1982, the Governor of Iowa designated the 
Iowa Department of Soil Conservation as the State agency responsible 
for the AMLR Program in Iowa. The Iowa chief legal officer issued an 
official opinion on November 24, 1982, that the Iowa Department of Soil 
Conservation is authorized under State law to establish, administer, 
and conduct a State reclamation program in accordance with the 
requirements of Title IV of the Federal Surface Mining Control and 
Reclamation Act of 1977, the regulations promulgated thereunder, and 
the State Reclamation Plan. Title IV of SMCRA covers both the regular 
AMLR program and the emergency reclamation program. A State government 
reorganization in 1986 transferred the same authorities to the Division 
of Soil Conservation in the Iowa Department of Agriculture and Land 
Stewardship.
2. Technical Capability
    The DSC has demonstrated through past performance that it has the 
technical capability to implement an AMLR emergency program. In its 
June 14, 2002, submission of the amendment, Iowa submitted the 
following statement to demonstrate the DSC's technical capability to 
design and supervise the emergency work.

    DSC has operated a successful AML reclamation program for nearly 
20 years. We have completed numerous mine shaft closure projects 
under that program and have been assisting OSM in its abatement of 
AML subsidence emergencies since 1995. We have a geotechnical 
engineer on staff who is familiar with emergency project design 
practices and we have the ability to prepare project design plans, 
specifications and contract documents in-house. The DSC staff can 
also provide in-house project inspection services since emergency 
projects are normally of short duration. Based on the past 
experience of the AML Program and the current capabilities of our 
staff, the Division is seeking authority to assume responsibility 
for the day-to-day administration of the AML emergency program in 
Iowa.

    Iowa has conducted an AMLR program since 1983. We have found that 
the Iowa AMLR program is run in a cost efficient and professional 
manner. Iowa has conducted project design and construction work with a 
high degree of competence and success. Projects are thoroughly analyzed 
and conducted in compliance with all National Environmental Policy Act 
(NEPA) requirements. Construction monitoring, post-construction 
monitoring, and maintenance processes ensure the projects meet contract 
specifications, project objectives, and program goals. Over the past 
few years, Iowa has designed and inspected AMLR emergency projects for 
us. Technical capabilities used for these emergency reclamation 
projects are the same as those used for normal, high priority 
reclamation projects. As of the end of evaluation year 2001, Iowa has 
reclaimed 55,010 feet of dangerous highwalls, 813 acres of dangerous 
spoil piles and embankments, 3 dangerous impoundments, 22 hazardous 
water bodies, 13 vertical openings, 7 miles of sediment-clogged 
streams, and 610 acres of mine land contributing to flooding problems. 
These are the same types of abandoned mine land features that Iowa will 
likely encounter in the AMLR emergency program. We have found that Iowa 
has developed and refined the in-house investigation, design, and 
project administration abilities necessary to administer an AMLR 
program and an AMLR emergency response program.
3. Administrative Mechanisms
    During a review of Iowa's revised purchasing and procurement 
procedures at section 884.13(d)(3), we found that the DSC has the 
authority to issue contracts for emergency work. For contracts not 
exceeding $25,000, the contracting method will either be sole-sourced 
or based on selective solicitation of bids depending upon the severity 
of the emergency and its locality. For contracts exceeding $25,000, the 
public notice and competitive bidding requirements of IC Chapter 73A 
will be followed. These contracting methods are similar to those for 
Federal agencies and will allow Iowa adequate flexibility to address 
emergency conditions. Other administrative processes required to 
implement the emergency program are the same as those already in place 
for the Iowa AMLR program.
    In accordance with section 405 of SMCRA and 30 CFR 884.15, Iowa has 
submitted an amendment to its AMLR plan, and we have determined, 
pursuant to 30 CFR 884.14, the following:
    1. The public has been given adequate notice and opportunity to 
comment, and the record does not reflect major unresolved 
controversies.
    2. Views of other Federal agencies have been solicited and 
considered.
    3. The State has the legal authority, policies and administrative 
structure necessary to implement the amendment.
    4. The proposed plan amendment meets all requirements of the 
Federal AMLR program regulations at 30 CFR Chapter VII, Subchapter R.
    5. The State has an approved State Regulatory Program.
    6. The amendment is in compliance with all applicable State and 
Federal laws and regulations.
    Therefore, we find that the proposed Iowa plan amendment allowing 
the State to assume responsibility for an AMLR emergency response 
reclamation program on our behalf is in compliance with SMCRA and meets 
the requirements of the Federal regulations, and we are approving 
Iowa's assumption of the AMLR emergency program.

B. Revisions to Iowa's AMLR Plan

    Iowa updated its AMLR plan to (1) ensure that it has the 
administrative mechanisms to quickly respond to AMLR emergencies either 
directly or through contractors and (2) reflect current state 
practices. The following table lists the sections of the AMLR plan that 
Iowa revised.

[[Page 72377]]



------------------------------------------------------------------------
              Plan section                            Topic
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I. 30 CFR 884.13(a)....................  A designation by the Governor
                                          of the state agency authorized
                                          to administer the state
                                          reclamation program and to
                                          receive and administer grants
                                          under 30 CFR part 886.
II. 30 CFR 884.13(b)...................  A legal opinion from the State
                                          Attorney General or the chief
                                          legal officer of the state
                                          agency that the designated
                                          agency has the authority under
                                          state law to conduct the
                                          program in accordance with the
                                          requirements of Title IV of
                                          the Act.
III. Policies and procedures for the     A description of the policies
 state abandoned mine land reclamation    and procedures to be followed
 program (30 CFR 884.13(c)).              by the designated state agency
                                          in conducting the reclamation
                                          program.
IV. Administrative and Management        A description of the
 Structure (30 CFR 884.13(d)).            administrative and management
                                          structure to be used in
                                          conducting the reclamation
                                          program.
V. General Description of AML            A general description, derived
 Reclamation (30 CFR 884.13(e)(2)-        from available data, of the
 (e)(3)).                                 reclamation activities to be
                                          conducted under the state
                                          reclamation plan.
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    We find that the requirements of the revised Iowa AMLR plan meet 
the requirements of the Federal regulations at 30 CFR 884.13(a) through 
(e). Therefore we are approving them.

C. Revisions to Iowa's AMLR Statutes

    Iowa proposed to amend the following sections in its statute at 
Iowa Code (IC), Chapter 207.
    1. Iowa's statutes listed in the table below contain language that 
is the same as or similar to the corresponding sections of the Federal 
statutes.

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                 Topic                          State statute                Federal counterpart  statute
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Priority order for the expenditure of    IC 207.21 subsection 3....  Section 403(a) of SMCRA.
 moneys from the AMLR Fund on eligible
 lands and water.
Liens..................................  IC 207.23.................  Section 408 of SMCRA.
Powers and Authority...................  IC 207.29.................  Section 413(a) of SMCRA.
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    Because the above State statutes contain language that is the same 
as or similar to the corresponding Federal statutes, we find that they 
are no less stringent than SMCRA. Therefore, we are approving them.
2. IC 207.21 Abandoned Mine Reclamation Program
    Iowa proposed to revise IC 207.21 by adding subsections 2.a.(2) 
through 2.b. to read as follows:
    (2) Coal lands and water damaged by coal mining processes and 
abandoned after August 3, 1977, if they were mined for coal or affected 
by coal mining processes and if either of the following occurred:

    (a) The mining occurred and the site was left in either an 
unreclaimed or inadequately reclaimed condition between August 4, 
1977, and April 10, 1981, and any moneys for reclamation or 
abatement that are available pursuant to a bond or other form of 
financial guarantee or from any other source are not sufficient to 
provide for adequate reclamation or abatement at the site.
    (b) The mining occurred and the site was left in either an 
unreclaimed or inadequately reclaimed condition between August 4, 
1977, and November 5, 1990, and the surety of the mining operator 
became insolvent during that period and, as of November 5, 1990, 
moneys immediately available from proceedings relating to the 
insolvency or from any financial guarantee or other source are not 
sufficient to provide for adequate reclamation or abatement at the 
site.
    b. If requested by the governor, the division may fill voids and 
seal tunnels, shafts, and entryways resulting from any previous 
noncoal mining operation and may reclaim surface impacts of any such 
noncoal underground or surface mines that were mined prior to August 
3, 1977, and which constitute an extreme danger to the public 
health, safety, general welfare, or property. Sites and areas 
designated for remedial action pursuant to the Federal Uranium Mill 
Tailings Radiation Control Act of 1978, 42 U.S.C. 7901 et seq., or 
which have been listed for remedial action pursuant to the Federal 
Comprehensive Environmental Response Compensation and Liability Act 
of 1980, 42 U.S.C. 7901 et seq., are not eligible for expenditures 
under this section.

    The counterpart Federal provisions are found at sections 
402(g)(4)(A) through (B)(ii) and 409(a) of SMCRA, and 30 CFR 875.16. 
Iowa's proposed provisions have the same meaning as the counterpart 
Federal provisions except that at IC 207.21 subsection 2.a.(2)(a), 
sites must have been left in either an unreclaimed or inadequately 
reclaimed condition between August 4, 1977, and April 10, 1981. The 
counterpart Federal provisions for IC 207.21 subsection 2.a.(2)(a) are 
found at section 402(g)(4)(B)(i) of SMCRA and provide that sites must 
have been left in either an unreclaimed or inadequately reclaimed 
condition beginning on August 4, 1977, and ending on or before the date 
on which the Secretary approved the State's program. Because the dates 
in Iowa's provision fall within the dates of the Federal provision and 
because the remaining proposed provisions have the same meaning as 
their counterpart Federal provisions, we are approving the above 
revisions to Iowa's program.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, but did not receive 
any.

Federal Agency Comments

    On June 19, 2002, under 30 CFR 884.14(a)(2) and 884.15(a), we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Iowa plan (Administrative Record 
No. AML-IA-44.01). We received a letter dated July 22, 2002, from the 
U.S. Department of Agriculture's Natural Resources Conservation Service 
(NRCS) stating that it had no concerns over Iowa's proposed amendment 
(Administrative Record No. AML-IA-44.02).

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 884.14(a)(6), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On June 19, 2002, we requested comments on Iowa's amendment 
(Administrative Record No. AML-IA-44.01). The ACHP did not respond to 
our request. The State

[[Page 72378]]

Historical Society of Iowa (SHSOI) responded on July 8, 2002 
(Administrative Record No. AML-IA-44.04) that the creation, amendment, 
and promulgation of the proposed administrative policies and procedures 
are not activities that would result in effects to historic properties, 
but that actions carried out thereunder may have the potential to cause 
effects. The SHSOI then stated that Part D [30 CFR 884.13(c)(3)] of 
Iowa's proposed AML Reclamation Plan stipulates pre-consultation and 
coordination with other State, Federal, and local entities, including 
the Iowa SHPO, that may have an interest in any proposed work and that 
it found this to be consistent with the procedures for consultations 
that are outlined in the ACHP's Protection of Historic Properties Final 
Rule (36 CFR Part 800). Further, the SHSOI stated that it had no 
objections to the amendment and no further comments. We agree that Part 
D [30 CFR 884.13(c)(3)] of Iowa's proposed AML Reclamation Plan 
regarding coordination of reclamation work is consistent with the 
procedures for consultations that are outlined in the ACHP's Protection 
of Historic Properties Final Rule (36 CFR Part 800). This final rule 
requires a review to determine the effect on historic properties of 
Federal or federally assisted undertakings such as emergency abatement 
projects.

V. OSM's Decision

    Based on the above findings, we approve the amendment as submitted 
by Iowa on June 14, 2002. We approve the AMLR plan and statutes 
proposed by Iowa with the provision that they be fully promulgated in 
identical form to the plan and statutes submitted to and reviewed by us 
and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 915, which codify decisions concerning the Iowa program. 
We find that good cause exists under 5 U.S.C. 553(d)(3) to make this 
final rule effective immediately. Section 405(d) of SMCRA requires that 
the state have a program that is in compliance with the procedures, 
guidelines, and requirements established under the Act. Making this 
rule effective immediately will expedite that process.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State and Tribal abandoned 
mine land reclamation plans and plan amendments because each plan is 
drafted and promulgated by a specific State or Tribe, not by OSM. 
Decisions on proposed abandoned mine land reclamation plans and plan 
amendments submitted by a State or Tribe are based solely on a 
determination of whether the submittal meets the requirements of Title 
IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR part 884 of the Federal 
regulations.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of abandoned mine reclamation programs. One of the purposes 
of SMCRA is to ``establish a nationwide program to protect society and 
the environment from the adverse effects of surface coal mining 
operations.'' Section 405(d) of SMCRA requires State abandoned mine 
reclamation programs to be in compliance with the procedures, 
guidelines, and requirements established under SMCRA.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because agency decisions on proposed State and Tribal abandoned mine 
land reclamation plans and plan amendments are categorically excluded 
from compliance with the National Environmental Policy Act (42 U.S.C. 
4332) by the Manual of the Department of the Interior (516 DM 6, 
appendix 8, paragraph 8.4B(29)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies 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. 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 corresponding Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, federal, state, or local government agencies, or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon

[[Page 72379]]

the fact that the State submittal, which is the subject of this rule, 
is based upon counterpart Federal regulations for which an analysis was 
prepared and a determination made that the Federal regulation did not 
impose an unfunded mandate.

List of Subjects in 30 CFR Part 915

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 12, 2002.
Jeffrey D. Jarrett,
Director, Office of Surface Mining Reclamation and Enforcement.


    For the reasons set out in the preamble, 30 CFR Part 915 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 915.25 is added to read as follows:


Sec.  915.25  Approval of Iowa abandoned mine land reclamation plan 
amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all or portions 
of these amendments were published in the Federal Register, and the 
State citations or a brief description of each amendment. The 
amendments in this table are listed in the order of the date of final 
publication in the Federal Register.

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
June 14, 2002.................  December 5, 2002.  Emergency response
                                                    reclamation program;
                                                    AMLR Plan sections
                                                    I. through IV., V.B.
                                                    and C.; Iowa Code
                                                    (IC) 207.21
                                                    subsection 2.a.(2)
                                                    through 2.b. and
                                                    subsection 3.d.;
                                                    207.23; and 207.29.
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[FR Doc. 02-30608 Filed 12-4-02; 8:45 am]
BILLING CODE 4310-05-P