[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
------------------------------------------------------------------------
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.
------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
Topic State statute Federal counterpart statute
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------
[FR Doc. 02-30608 Filed 12-4-02; 8:45 am]
BILLING CODE 4310-05-P