Illinois Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

Illinois Regulatory Program

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

Interior.

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

hearing.

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

Illinois regulatory program (hereinafter the ``Illinois program'')

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The proposed amendment consists of revisions to 23 parts of Title 62 of

the Illinois Administrative Code (IAC) pertaining to permit fees,

definitions, financial interests, coal exploration, permitting,

environmental resources, reclamation plans, special categories of

mining, small operator assistance, bonding, performance standards,

inspection, enforcement, civil penalties, administrative and judicial

review, and certification of blasters. The amendment is intended to

revise the Illinois program to be consistent with the corresponding

Federal regulations, incorporate the additional flexibility afforded by

the recently revised Federal regulations, provide additional

safeguards, clarify ambiguities, and improve operational efficiency.

DATES: Written comment must be received by 4:00 p.m., [C.S.T.],

November 17, 1994. If requested, a public hearing on the proposed

amendment will be held on November 14, 1994. Requests to speak at the

hearing must be received by 4:00 p.m., [C.S.T.], on November 2, 1994.

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

be mailed or hand delivered to Mr. James F. Fulton, Director,

Springfield Field Office, at the address listed below.

Any disabled individual who has need for a special accommodation to

attend a public hearing should contact the individual listed under FOR

FURTHER INFORMATION CONTACT.

Copies of the Illinois program, the proposed amendment, a listing

of any scheduled public hearings, and all written comments received in

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

addresses listed below during normal business hours, Monday through

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

the proposed amendment by contacting OSM's Springfield Field Office.

James F. Fulton, Director, Springfield Field Office, Office of

Surface Mining Reclamation and Enforcement, 511 West Capitol, Suite

202, Springfield, Illinois 62704, Telephone: (217) 492-4495.

Illinois Department of Mines and Minerals, 300 West Jefferson

Street, Suite 300, Springfield Illinois 62791, Telephone (217) 782-

4970.

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Director, Springfield Field Office, Telephone: (217)

492-4495.

SUPPLEMENTARY INFORMATION:

I. Background on the Illinois Program

On June 1, 1982, the Secretary of the Interior conditionally

approved the Illinois program. Background information on the Illinois

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the June 1,

1982, Federal Register (47 FR 23883). Subsequent actions concerning the

conditions of approval and program amendments can be found at 30 CFR

913.15, 913.16, and 913.17.

II. Description of the Proposed Amendment

By letter dated September 23, 1994, (Administrative Record No. IL-

1600) Illinois submitted a proposed amendment to its program pursuant

to SMCRA. Illinois submitted the proposed amendment in response to an

August 5, 1993, letter (Administrative Record No. IL-1400) that OSM

sent to Illinois in accordance with 30 CFR 732.17(c), in response to

required program amendments at 30 CFR 913.16 (s), (t), (u), and (v),

and at its own initiative. The provisions of the 23 parts of Title 62

of the Illinois Administrative Code (IAC) that Illinois proposes to

amend are discussed below.

A. 62 IAC 1700.16. Fees and Forfeitures

Illinois is amending subsection (a) by requiring that fees

collected under the provision of the State Act be deposited in the Coal

Mining Regulatory Fund, rather than the general revenue fund. This

proposed amendment reflects recent statutory changes to the Surface

Coal Mining Land Conservation and Reclamation Act (State Act) at 225

ILCS 720/9/07.

B. 62 IAC 1701. Appendix A Definitions

The definition of ``coal exploration'' is revised by adding the

following specific exclusions. Coal exploration does not include

scientific research which is not related to specific plans to locate

and/or describe coal deposits, or activities the Department determines

do not substantially disturb the land involved. Coal exploration also

does not include exploration for minerals other than coal.

The definition of ``historic lands'' is revised by adding a

reference to Illinois' regulations at 62 IAC 1762 and 1764.

The following new definition pertaining to remining is added.

``Land eligible for remining'' means those lands that would otherwise

be eligible for expenditures under Section 402(g)(4) or Section 404 of

the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.

1232(g)(4), 1234).

The definition of ``substantially disturb,'' for purposes of coal

exploration, is revised to exclude impact to air by blasting.

C. 62 IAC 1705. Restriction on Financial Interests of State Employees

Illinois is proposing to revise the following sections of part

1705.

1. Section 1705.2 Objectives

Illinois revised subsection (a) by updating the state statute

citation.

2. Section 1705.15 Where to File

Section 1705.15 is proposed to be amended by requiring employees to

file their financial interest statements with the Department's internal

auditor, instead of the legal counsel.

3. Section 1705.17 What to Report

Subsection (c)(3) is proposed to be amended by giving the

Department's internal auditor the responsibility of determining whether

a direct or indirect financial interest exists, rather than having the

legal counsel make this determination.

D. 62 IAC 1772. Requirements for Coal Exploration

Illinois is proposing to revise the following sections of part

1772.

1. Section 1772.11 Notice of Requirements for Exploration Removing 250

Tons of Coal or Less

Subsection (b)(5) is proposed to be amended in order to clarify

that the referenced forms are required to be submitted with a coal

exploration notice only if such forms are required by the Department's

Oil and Gas Division.

2. Section 1772.12 Permit Requirements for Exploration Removing More

than 250 Tons of Coal

Subsection (d)(2) is proposed to be amended by replacing the word

``operation'' with the word ``permit.''

At subsection (e)(2), the administrative and judicial review

regulation citation is updated.

E. 62 IAC 1773.15. Review of Permit Applications

Illinois revised subsection (a)(1) by removing reference to its

informal conference at section 1773.13(c) and adding a reference to its

public hearing at section 1773.14.

F. 62 IAC 1774.13. Permit Revisions

At subsection (b)(2)(E), a significant revision shall be required

for land use changes involving greater than 5% of the ``total permit

acreage'' instead of the ``original total permit acreage.''

Exceptions to the 5% cumulative total limit were added at new

subsections (b)(2)(E) (i) and (ii). The proposed addition of subsection

(b)(2)(E)(i) would allow the accumulation of the 5% limit to restart

upon issuance of a significant revision that addresses all previous

land use changes approved via insignificant revisions. The proposed

addition of subsection (b)(2)(E)(ii) would allow acreage added by

incidental boundary revisions to be included in the total permit

acreage used to determine the 5% limit if the acreage has been

addressed previously in a significant revision.

New subsection (d)(6) provides for public notice of and a ten-day

comment period for incidental boundary revision applications which

propose new surface acreage or planned subsidence shadow area to the

original permit.

G. 62 IAC 1778.15. Right of Entry Information

At subsection (a), Illinois is proposing to eliminate the

requirement for underground coal mine operators to document their legal

right to enter and mine in the shadow area, including the right to

subside within the shadow area.

At subsection (e), Illinois is adding the phrase ``including

planned subsidence operations.

Illinois added new subsection (f) to require applications for

additions to the shadow area to contain a notarized statement by a

responsible office of the applicant attesting that all necessary mining

rights, including the right to subside, will be obtained prior to

mining.

H. 62 IAC 1779. Surface Mining Permit Applications--Minimum

Requirements for Information on Environmental Resources

Illinois is proposing to revise the following sections of part

1779.

1. Section 1779.22 Land Use Information

Section 1779.22 pertains to surface mining permit application

requirements for pre-mining land use information. Illinois is proposing

to delete section 1779.22 and to reorganize and repealed provisions at

subsection (a) into 62 IAC 1780.23(a).

2. Section 1779.25 Cross Sections, Maps and Plans

Subsections (a)(11) (A), (B) and (C) are proposed to be deleted.

Subsection (a)(11)(D) is proposed to be deleted from this section and

relocated to 62 IAC 1780.23(a)(3).

Statutory citations in subsections (b) are updated.

I. 62 IAC 1780.23. Reclamation Plan: Pre-Mining and Post-Mining

Information

The section title is changed from ``Reclamation Plan: Post-mining

Land Uses'' to ``Reclamation Plan: Pre-Mining and Post-Mining

Information.'' New subsections (a), (a)(1), and (a)(2) contain the pre-

mining land use information provisions of existing 62 IAC 1779.22(a)

with one addition. At new subsection (a)(1), one new provisions was

added which requires that in the case of previously mined land, the use

of the land prior to any mining shall also be described to the extent

such information is available. New subsection (a)(3) contains the soil

map provision of existing 62 IAC 1779.25(a)(11)(D). The substantive

provisions of existing subsections (a), (a)(1), (a)(3), and (a)(4) are

redesignated new subsections (b), (b)(1), (b)(2) and (b)(3). Existing

subsection (a)(2) pertaining to detailed management plans for a post-

mining use of grazing is deleted.

Existing subsection (b) is redesignated new subsection (c).

J. 62 IAC 1783. Underground Mining Permit Applications--Minimum

Requirements for Information on Environmental Resources

Illinois is proposing to revise the following sections of part

1783.

1. Section 1783.22 Land Use Information.

Section 1783.22 pertains to underground mining permit application

requirements for pre-mining land use information. Illinois is proposing

to delete Section 1783.22 and to reorganize the repealed provisions at

subsection (a) into 62 IAC 1784.15(a).

2. Section 1783.25 Cross Sections, Maps and Plans

Subsections (a)(11)(A), (B), and (C) are proposed to be deleted.

Subsection (a)(11)(D) is proposed to be deleted from this section and

relocated to 62 IAC 1784.15(a)(3).

Statutory citations in subsection (b) are updated.

K. 62 IAC 1784.15. Reclamation Plan: Pre-Mining and Post-Mining

Information

The section title is changed from ``Reclamation Plan: Post-mining

Land Uses'' to ``Reclamation Plan: Pre-Mining and Post Mining

Information.'' New subsections (a), (a)(1), and (a)(2) contain the

substantive pre-mining land use information provisions of existing 62

IAC 1783.22(a) with one addition. At new subsection (a)(1), one new

provision was added which requires that in the case of previously mined

land, the use of the land prior to any mining shall also be described

to the extent such information is available. New subsection (a)(3)

contains the soil map provisions of existing 62 IAC 1783.25(a)(11)(D).

The substantive provisions of existing subsections (a), (a)(1), (a)(2),

and (a)(3) are redesignated new subsections (b), (b)(1), (b)(2), and

(b)(3).

Existing subsection (b) is redesignated new subsection (c).

L. 62 IAC 1785. Requirements for Permits for Special Categories of

Mining

Illinois is proposing to revise the following sections of part

1785.

1. Section 1785.17 Prime Farmlands

At subsection (a), Illinois is proposing to delete the following

language: Nothing in this Section shall apply to any permit issued

prior to the date of enactment of the Federal Act, or to any revisions

or renewals thereof, or to any existing surface mining operations for

which a permit was issued prior to the date of enactment of the Federal

Act, as determined by the Department prior to September 29, 1981. For

lands for which a request for exemption was initially made or pending

on or after September 29, 1981.

Existing subsections (a)(5) and (6) pertaining to an acreage

limitation on the amount of exempted prime farmland are deleted.

Existing subsection (a)(7)(A) was redesignated subsection (a)(5).

Existing subsection (a)(7)(B) pertaining to a preliminary exemption

review is deleted.

At subsection (d)(1), the sentence ``The State recognizes that the

permit cannot be issued without the required consultation with USDA''

is deleted.

2. Section 1785.23 Minor Underground Mine Facilities Not at or

Adjacent to the Processing or Preparation Facility or Area

Illinois proposes to revise subsection (d)(3) by requiring written

comments be filed within the public comment period.

The revision to subsection (e)(1) requires the Department to make

its final decision to approve, deny, or modify the complete application

for a permit within 20 days following the close of the public comment

period.

Subsection (g)(1) is proposed to be amended to require the

Department to notify persons who filed comments or objections to the

application of its final decision, to replace the word ``disapprove''

with the word `'deny'' for consistency with other sections of the

regulations dealing with approval and denial of application, and to

delete the requirement that it publish a public notice of its final

action. The regulatory citation in subsection (g)(2) is corrected.

M. 62 IAC 1795. Small Operator Assistance

Illinois is proposing to revise the following sections of part

1795.

1. Section 1795.1 Scope and Purpose

Illinois proposes to amend the purpose statement at subsection (b)

to read as follows. The purpose of the program is to provide for

eligible operators a determination of probable hydrologic consequences

including the engineering analysis and designs necessary for the

determination; cross-sections, maps and plans; geologic drilling and

statement of results of test borings and samplings; archaeological and

historical information collection and relevant plan preparation; pre-

blast surveys and pre-blast survey reports; and site specific resource

information collection and relevant plan preparation which are required

components of the permit application under 62 Ill. Adm. Code 1772

through 1785.

2. Section 1795.4 Definitions

At subsection (b) the definition of qualified laboratory is revised

by deleting the language ``statement of results of test borings or core

samples'' and adding the language ``or other studies and/or reports or

plans.'' The regulatory section citation was corrected to 1795.1.

3. Section 1779.6 Eligibility for Assistance

At subsection (a), the statute citation is updated.

At subsection (b), the criteria for eligibility for assistance is

revised to read as follows. Establishes that his or her probable total

actual and attributed production from all locations during the twelve

(12) months immediately following the date on which the operator is

issued the surface coal mining and reclamation permit will not exceed

300,000 tons.

At subsection (b)(1) and (b)(2), Illinois proposes changing the

percentage of ownership of applicant from five percent to ten percent

with respect to the baseline above which ownership will play a role in

determining attributed coal production.

4. Section 1795.7 Filing for Assistance

Illinois proposes to amend subsection (c)(4) by requiring that an

application for assistance contain a schedule of estimated coal

production and attributed production during the 12 months immediately

following the date of permit issuance.

5. Section 1795.9 Program Services and Data Requirements

Illinois proposes to revise subsection (a) by adding ``studies,

reports, and plans'' to the types of services referenced in subsection

(b) that are available to eligible operators.

Subsection (b) lists the specific technical services authorized for

the SOAP. At subsection (b)(2), Illinois proposes to add drilling as an

authorized SOAP service. Illinois proposes to add new subsection (b)(3)

which provides for cross-sections, maps and plans required by 62 IAC

1779.25 and 1783.25. New subsection (b)(4) provides for collection of

archaeological and historical information and related plans required by

62 IAC 1779.12(b), 1780.31, 1783.12(b) and 1784.17, and any other

archaeological and historical information required by the Department.

New subsection (b)(5) provides for pre-blast survey and reports

pursuant to the provisions of 62 IAC 1816.62. New subsection (b)(6)

provides for site specific resource information and protection and

enhancement plans for fish and wildlife habitats and other

environmental values required by the Department under 62 IAC 1779.19,

1780.16, 1783.19, and 1784.21, and information and plans for any other

environmental values required by the Department under the State Act.

6. Section 1795.12 Applicant Liability

At subsection (a)(1), the word ``report'' is replaced by the word

``reports.'' At subsection (a)(2), the applicant shall reimburse the

Department if the program administrator finds that the applicant's

actual and attributed production of coal for all locations exceeds

300,000 tons during the 12 months immediately following the date on

which the operator is issued the surface coal mining and reclamation

permit. At subsection (a)(3), the applicant and its successor shall

reimburse the Department if the permit is sold, transferred, or

assigned to another person and the transferee's total actual and

attributed production exceeds 300,000 tons during the twelve (12)

months immediately following the date on which the permit was issued.

If the permit is transferred during the 12 months period immediately

following the permit issuance date, the determination of adherence to

the 12 month-300,000 tons limit shall be performed by combining the

actual and attributed production of both parties for the 12 month

period.

N. 62 IAC 1800. Bonding and Insurance Requirements for Surface Coal

Mining and Reclamation Operations

The State Act at 225 ILCS 720/6.01 was amended to allow Illinois to

accept an applicant's bond, without separate surety, when the applicant

has a history of solvency and designates a suitable agent for service

of process. The proposed amendments to Secs. 1800.4, 1800.5, 1800.11,

1800.12, and proposed new Secs. 1800.23 implement the statutory self-

bonding provision.

1. Section 1800.4 Department Responsibilities

New subsection (c) allows the Department to accept a self-bond if

the permittee meets the requirements of Sec. 1800.23. Existing

subsections (c), (d), and (e) are redesignated as subsections (d), (e),

and (f), respectively.

2. Section 1800.5 Definitions

Subsection (b)(1) is revised to allow Illinois to accept letters of

credit from banks organized or authorized in other states that are not

authorized to operate in Illinois and from banks organized or

authorized in the United States by national charter provided that if

the bank does not have an office for collection in Illinois, there

shall be a confirming bank designated with an office in Illinois that

is authorized to accept, negotiate, and pay the letter upon presentment

in Illinois.

Ne subsection (c) defines ``self-bonding'' as an indemnity

agreement in a sum certain executed by the applicant or by the

applicant and any corporate guarantor and made payable to the

Department with or without separate surety.

3. Section 1800.11 Requirement to File a Bond

New subsection (e) requires the Department to administer self-

bonding for eligible permittees consistent with all applicable

provisions of Secs. 1800.1 through 1800.50.

4. Section 1800.12 Form of the Performance Bond

New subsection (c) allows for a self-bond. Existing subsection (c)

is redesignated as subsection (d)

5. Section 1800.20 Surety Bonds

Subsections (b)(2) through (b)(5), which contained surety bond

conditions, are deleted.

6. Section 1800.21 Collateral Bonds

Subsection (b)(1) is revised to allow Illinois to accept letters of

credit from banks organized or authorized in other states that are not

authorized to operate in Illinois and from banks organized or

authorized in the United States by national charter provided that if

the bank does not have an office for collection in Illinois, there

shall be a confirming bank designated with an office in Illinois.

7. Section 1800.23 Self-Bonding

Subsection (a) contains the following definitions. ``Current

assets'' means cash or other assets or resources which are reasonably

expected to be converted to cash or sold or consumed within one (1)

year or within the normal operating cycle of the business. ``Current

liabilities'' means obligations which are reasonably expected to be

paid or liquidated within one (1) year or within the normal operating

cycle of the business. ``Existing self-bonding liabilities'' means the

cumulative total dollar amount of self-bonding for which the applicant

or parent corporation guarantor is already liable in connection with

coal mining regulatory program permits in the United States, as of the

date of relevant financial statement. ``Fixed assets'' means plants and

equipment, but does not include land or coal in place. ``Liabilities''

means obligations to transfer assets or provide services to other

entities in the future as a result of past transactions. ``Net worth''

means total assets minus total liabilities and is equivalent to owners'

equity. Parent corporation means a corporation which owns or controls

the applicant. ``Tangible net worth'' means net worth minus intangible

such as goodwill and rights to patents or royalties.

Subsection (b) specifies that the Department may accept a self-bond

from an applicant for a permit if all of the conditions at subsections

(b)(1) through (b)(4) are met by the applicant or its parent

corporation guarantor.

At subsection (b)(1), if the applicant designates a suitable agent

to receive service of process in the State of Illinois.

At subsection (b)(2), if the applicant has been in continuous

operation as a business entity for a period of not less than five (5)

years. Continuous operation shall mean that business was conducted over

a period of five (5) years immediately preceding the time of

application. At paragraph (A), the Department may allow a joint venture

or syndicate with less than five (5) years of continuous operation to

qualify under subsection (2) above, if each member of the joint venture

or syndicate has been in continuous operation for at least five (5)

years immediately preceding the time of application. At paragraph (B),

when calculating the period of continuous operation, the Department may

exclude past periods of interruption to the operation of the business

entity that were beyond the applicant's control and that do not affect

the applicant's likelihood of remaining in business during the proposed

surface coal mining and reclamation operations.

At subsection (b)(3), if the applicant submits financial

information in sufficient detail to show that the applicant meets one

of the criteria in paragraphs (A) through (C). At paragraph (A), if the

applicant has a current rating for its most recent bond issuance of

``A'' or higher as issued by either Moody's Investor Service or

Standard and Poor's Corporation. At paragraph (B), if the applicant has

a tangible net worth of at least $10 million, a ratio of total

liabilities to net worth of 2.5 times or less, and a ration of current

assets to current liabilities of 1.2 times or greater. At paragraph

(C), if the applicant's fixed assets in the United States total at

least $20 million, and the applicant has a ratio of total liabilities

to net worth of 2.5 times or less, and ratio of current assets to

current liabilities of 1.2 times or greater.

At subsection (b)(4) if the applicant submits the information

required by paragraphs (A) through (C). Paragraph (A) requires

financial statements for the most recently completed fiscal year

accompanied by a report prepared by an independent certified public

account in conformity with generally accepted accounting principles and

containing the accountant's audit opinion or review opinion of the

financial statements with no adverse opinion. Paragraph (B) requires

unaudited financial statements for completed quarters in the current

fiscal year. Paragraph (C) requires additional unaudited information as

requested by the Department.

At subsection (c) a written guarantee is required. At subsection

(c)(1), the Department may accept a written guarantee for an

applicant's self-bond from a parent corporation guarantor, if the

guarantor meets the conditions of subsections (b) (1) through (4),

above, as if it were the applicant. Such a written guarantee shall be

referred to as a ``corporate guarantee.'' The terms of the corporate

guarantee shall provide for the criteria in paragraphs (A) through (C).

At paragraph (A), if the applicant fails to complete the reclamation

plan, the guarantor shall do so or the guarantor shall be liable under

the indemnity agreement to provide funds to the Department sufficient

to complete the reclamation plan, but not to exceed the bond amount. At

paragraph (B), the corporate guarantee shall remain in force unless the

guarantor sends notice of cancellation by certified mail to the

applicant and to the Department at least 90 days in advance of the

cancellation date, and the Department accepts the cancellation. At

paragraph (C), the cancellation may be accepted by the Department if

the applicant obtains suitable replacement bond before the cancellation

date or if the lands for which the self-bond, or portion thereof, was

accepted have not been disturbed.

At subsection (c)(2), the Department may accept a written guarantee

for an applicant's self-bond from any corporate guarantor, whenever the

applicant meets the conditions of subsection (b) (1), (2) and (4)

above, and the guarantor meets the conditions of subsections (b) (1)

through (4) above. Such a written guarantee shall be referred to as a

``non-parent corporate guarantee.'' The terms of this guarantee shall

provide for compliance with the conditions of subsections (c)(1) (A)

through (C) above. The Department may require the applicant to submit

any information specified in paragraph (b)(3) above in order to

determine the financial capabilities of the applicant.

Subsection (d) specifies that in order for the Department to accept

an applicant's self-bond, the total amount of the outstanding and

proposed self-bonds of the applicant for surface coal mining and

reclamation operations shall not exceed 25 percent of the applicant's

tangible net worth in the United States. In order for the Department to

accept a corporate guarantee, the total amount of the parent

corporation guarantor's present and proposed self-bonds and guaranteed

self-bonds for surface coal mining and reclamation operations shall not

exceed 25 percent of the guarantor's tangible net worth in the United

States. In order for the Department to accept a non-parent corporate

guarantee, the total amount of the non-parent corporate guarantor's

present and proposed self-bonds and guaranteed self-bonds shall not

exceed 25 percent of the guarantor's tangible net worth in the United

States.

Subsection (e) specifies that if the Department accepts an

applicant's self-bond, an indemnity agreement shall be submitted

subject to the requirements in subsections (e)(1) through (e)(4).

Subsection (e)(1) requires that the indemnity agreement shall be

executed by all persons and parties who are to be bound by it,

including the parent corporation guarantor, and shall bind each jointly

and severally. Subsection (e)(2) requires that corporations applying

for a self-bond, and parent and non-parent corporations guaranteeing an

applicant's self-bond shall submit an indemnity agreement signed by two

corporate officers who are authorized to bind their corporations. A

copy of such authorization shall be provided to the Department along

with an affidavit certifying that such an agreement is valid under all

applicable federal and state laws. In addition, the guarantor shall

provide a copy of the corporate authorization demonstrating that the

corporation may guarantee the self-bond and execute the indemnity

agreement. Subsection (e)(3) requires that if the applicant is a

partnership, joint venture or syndicate, the agreement shall bind each

partner or party who has a beneficial interest, directly or indirectly,

in the applicant. Subsection (e)(4) requires that pursuant to

Sec. 1800.50, the applicant, parent or non-parent corporate guarantor

shall be required to complete the approved reclamation plan for the

lands in default or to pay to the Department an amount necessary to

complete the approved reclamation plan, not to exceed the bond amount.

Under Illinois law, the indemnity agreement when under forfeiture shall

operate as a judgment against those parties liable under the indemnity

agreement.

At subsection (f), the Department shall require self-bonded

applicants and parent and non-parent corporate guarantors to submit an

update of the information required under subsections (b) (3) and (4)

above within 90 days after the close of fiscal year following the

issuance of the self-bond or corporate guarantee.

At subsection (g), if at any time during the period when a self-

bond is posted, the financial conditions of the applicant, parent or

non-parent corporate guarantor change so that the criteria of

subsections (b)(3) and (d) above are not satisfied, the permittee shall

notify the Department immediately and shall within 90 days post an

alternate form of bond in the same amount as the self-bond. Should the

pemittee fail to post an adequate substitute bond, the provisions of

Sec. 1800.16(e)(2) shall apply.

O. 62 IAC 1816. Permanent Program Performance Standards--Surface Mining

Activities

Proposed revisions to the performance standards which 62 IAC 1816

and 1817 have in common are discussed in ``Q.''

Proposed revisions of the surface mining performance standards

unique to the following sections of part 1816 are discussed below.

1. Section 1816.79 Protection of Underground Mining

Section 1816.79 is reorganized. The word ``coal'' is proposed to be

removed from existing subsection (a), and the subsection reference is

removed. Existing subsection (a)(1) is redesignated subsection (b), and

existing subsection (a)(2) is redesignated subsection (a).

2. Section 1816.116 Revegetation: Standards for Success

Subsection (a)(4)(A)(ii) is proposed to be amended to allow the

Department to approve a field to represent small isolated areas of the

same capability if it determines that the field is representative of

reclamation of such areas. The small isolated areas shall maintain a

successful ground cover as determined by subsection (a)(3)(E).

Productivity results on the field shall be applicable to the small

isolated areas.

3. Section 1816 Appendix A--Agricultural Lands Productivity Formula

(ALPF)

Illinois proposed several changes for the ``Permit Specifics Yield

Standard'' section. The two existing paragraphs are amended and

reorganized into subsections (a) and (b), respectively, and new

provisions were added at subsections (c) through (f).

Language is added at subsection (a) to clarify that ALPF target

calculation procedures are applicable to limited capability lands and

that targets are to be based on the soils which are disturbed within

the permit area.

The existing provisions in subsection (b) are now subject to the

provisions of subsection (c) through (f). New subsection (c) specifies

that the Department shall provide for establishment of specific yield

standards for the individual capability groups to be weighted for an

individual pit, (geographically distinct mining area), if multiple

permits are adjacent and confined to a single continuous pit; or

multiple pits are not adjacent but are within an individual permit.

New subsection (d) specifies that if an individual mining pit is

present in more than one county, annual target yield adjustments shall

be based on the county with the greater permit acreage.

New subsection (e) specifies that after mining operations have

ceased and at the request of the permittee, the Department shall

recalculate the yield standards for the permit (pit) based solely on

the soils which were disturbed. Recalculated targets shall be

applicable to all areas tested for productivity, including past results

on areas under bond at the time of the request. Approved significant

revisions which alter the soils to be disturbed shall cause the targets

to be recalculated.

New subsection (f) specifies that at the request of the permittee,

the Department shall consolidate prime farmland and high capability

targets, provided the Department determines that the soil

reconstruction of the high capability land is equal to or better than

the prime farmland.

P. 62 IAC 1817. Permanent Program Performance Standards--Underground

Mining Activities

Proposed revisions to the performance standards which 62 IAC 1816

and 1817 have in common are discussed in ``Q.''

Proposed revisions to the underground mining performance standards

unique to the following sections of part 1817 are discussed below.

1. Section 1817.101 Backfilling and Grading: General Requirements

Illinois is proposing to amend subsection (a) by removing the

existing provision and adding the requirement that all surface areas

disturbed incident to underground mining activities shall be

backfilled, graded and revegetated, in accordance with the approved

reclamation plan, not later than 36 calendar months after cessation of

active use, as determined by the Department.

2. Section 1817.121 Subsidence Control

Illinois proposes to add new subsection (c)(3) to require operators

to promptly replace any drinking, domestic, or residential water supply

from a well or spring in existence prior to the application for a

surface coal mining and reclamation operations permit, which has been

affected by contamination, diminution, or interruption resulting from

underground coal mining operations.

3. Section 1817.131 Cessation of Operations: Temporary

At subsection (b), two typographical errors were corrected by

adding the words ``affected'' and ``area'' and deleting the word

``are.''

4. Section 1817.182 Minor Underground Mine Facilities Not at or

Adjacent to the Processing or Preparation Facility or Area

At subsection (a), Illinois corrected a typographical error by

replacing the work ``is'' with the word ``if.''

At subsection (d)(4), Illinois corrected a typographical error by

replacing the word ``existing'' with the word ``restore.''

At subsection (l), Illinois corrected the regulatory citation by

replacing ``1817.103'' with ``1817.102.''

Q. 62 IAC 1816. Permanent Program Performance Standards--

Surface Mining Activities and 62 IAC 1817 Permanent Program Performance

Standards--Underground Mining Activities

Proposed revisions to the performance standards which 62 IAC 1816

and 1817 have in common are discussed below.

1. Sections 1816.22/1817.22 Topsoil and Subsoil

Illinois proposes to add the phrase ``except on prime farmland'' to

existing subsection (b)(1). Illinois is also proposing to delete

subsection (b)(2) in order to eliminate the acreage restriction on

topsoil substitutes. Therefore, existing subsection (b)(1) is

redesignated subsection (b).

2. Sections 1816.41/1817.41 Hydrologic Balance Protection

Illinois proposes to revise subsection (c)(2) by specifying that

ground water monitoring reports shall be submitted by the first day of

the second month following the reporting period, unless the Department

specifies an alternative reporting schedule.

Illinois proposes to revise subsection (e)(2) by removing the

requirement to send NPDES reports to the Department concurrently with

those sent into the Illinois EPA and adding the requirement that NPDES

reports are to be sent to the Department by the first day of the second

month following the reporting period.

3. Sections 1816.46/1817.46 Hydrologic Balance: Siltation Structures

At subsection (a)(1), the definition for siltation structure is

proposed to be amended by adding a reference to sediment control

measures as described at Sec. 1816.45.

New subsection (e) is proposed to provide an alternative to

sedimentation ponds. Subsection (e)(1) specifies that sediment control

measures as described in section 1816.45(b) may be used in lieu of

sedimentation ponds if the disturbed drainage area within the total

disturbed area is ten (10) acres or less. Subsection (e)(2) requires

the permittee to demonstrate that a sedimentation pond is not necessary

for drainage from the disturbed area to meet the effluent limitations

and water quality standards for the receiving waters set forth in

Sec. 1816.42.

Existing subsection (e) was redesignated (f). The reference to

alternative sediment control measures is proposed to be deleted from

redesignated subsection (f)(2).

4. Sections 1816.97/1817.97 Protection of Fish, Wildlife, and Related

Environmental Values

Illinois is proposing to delete the reference to the Illinois

Endangered Species Protection Act at subsection (b).

5. Sections 1816.116/1817.116 Revegetation: Standards for Success

The State Act was amended at 225 ILCS 720/3.15 to change the

responsibility period from five years to two years for areas eligible

for remining. Subsection (a)(2)(B) is proposed to be amended to

implement this statute by adding the phrase ``except that on lands

eligible for remining, the period of responsibility (until September

30, 2004) shall be two (2) full years.''

Existing subsection (a)(2)(F), concerning augmentation requirements

for high capability cropland areas, is proposed to be deleted and

replaced with new provisions pertaining to wetlands augmentation. New

subsection (a)(2)(F) specifies that wetlands shall be considered

augmented when significant alterations are made to the size or

character of the watershed, pumping is used to maintain water levels,

or neutralizing agents, chemical treatments or fertilizers are applied

to the wetland area. Water level management using permanent water

control structures is considered a normal husbandry practice.

Subsection (a)(3)(E) is proposed to be amended to clarify that

pasture and/or hayland or grazing land on non-previously disturbed

areas are subject to a 90 percent ground cover standard for a minimum

of any two years of a ten (10) year period prior to the release of the

performance bond, except the first year of the five (5) year extended

responsibility period. The one year attempt limit for substituting corn

productivity for one year of hay productivity is proposed to be removed

from subsection (a)(3)(E). Subsection (a)(3)(E) is also being revised

to allow one year substitution of crops in lieu of hay on limited

capability land, provided the Department determines that the practice

is proper management.

New subsection (a)(3)(F) specifies that small isolated areas which

were disturbed from activities such as, but not limited to, signs,

boreholes and power poles, shall be considered successfully revegetated

if the operator can demonstrate that the soil disturbance was minor,

the soil has been returned to its original capability and the area is

supporting its approved post-mining land use at the end of the

responsibility period.

New subsection (a)(5)(A) specifies that wetland revegetation

criteria shall be deemed successful when the wetland vegetation

criteria in the Corps of Engineers Wetlands Delineation Manual have

been achieved following sampling procedures specified in that manual.

New subsection (a)(5)(B) further specifies that areas designated to

support vegetation in the approved plan shall have a minimum aerial

coverage of 30 percent. The testing procedure in Sec. 1816.117(d)(1)

through (3) shall be used to evaluate the extent of cover. Aerial cover

shall be determined to be present if any approved wetland species is

measured at the increment. The percentage of aerial cover shall be

established for the area tested by taking the total number of

measurements where aerial cover was determined to be present.

New subsection (c) is proposed to be added to provide for the use

of reference areas to establish target yields in lieu of the ALPF.

Other requirements and procedures of 62 IAC 1816.116(a)(4) shall be

applicable. Reference areas used to establish success standards must

meet the requirements in paragraphs (1) through (8). Paragraph (1)

requires that if the fields to be represented contain in total 800

acres or more, the reference area shall contain at least 40 acres. If

the field(s) to be represented is smaller than 800 acres, the reference

area shall be the greater of five percent of the field(s) to be

represented or one acre. Paragraph (2) requires that each reference

area be representative of the soils of the field(s) to be represented.

The permittee shall provide adequate documentation of the soils and

soil quality present in the reference area. Paragraph (3) requires the

permittee each year provide a certification by a qualified agronomist

that the management of the reference area is equivalent to the field(s)

to be represented. The permittee shall describe the proposed management

of the reference area in a proposal. Paragraph (4) requires that

reference areas be located within six miles of the field(s) to be

represented. Paragraph (5) requires right-of-entry on the reference

area for authorized representatives of the Department be secured by

written agreement or consent for the entire time period in which the

reference area will be used. Paragraph (6) requires that proposed

reference areas be submitted for Department approval no later than

January 1 of the year in which they are proposed to be used. Paragraph

(7) requires that the reference areas have yields established by whole

field harvest. Paragraph (8) requires that yields determined for the

reference area be those used for determination of success of

revegetation unless the Department determines that management practices

have not been equivalent during the course of the year or the

Department determines that growing conditions have not been

representative of the fields to be tested.

6. Sections 1816.117/1817.117 Revegetation: Tree and Shrub Vegetation

The State Act was amended at 225 ILCS 720/3.15 to change the

responsibility period from five years to two years for areas eligible

for remining. Sections 1816.117(a)(1) and 1817.117(a)(1) are proposed

to be amended to implement this statute by requiring that on lands

eligible for remining, the period of responsibility (until September

30, 2004) shall be two full years for trees an shrubs. Also, until

September 30, 2004, on lands eligible for remining, trees and shrubs

need not have been in place for three years; however, such trees an

shrubs shall not be counted in determining success during the same

calendar year in which they were planted.

Subsection (a)(3) is proposed to be amended to clarify that erosion

control structures, including pond embankments, shall not require the

planting of trees and shrubs.

Subsection (b) is proposed to be amended to clarify that planting

arrangements such as hedgerows, border plantings, clump plantings,

shelterbelts, and open herbaceous area which increase diversity and

edge effect within wildlife areas may be approved by the Department on

a case-by-case basis prior to planting such areas.

Subsection (c)(1) is proposed to be revised by replacing the word

``area'' with the word ``field.'' Subsection (c)(1) is also revised by

adding a requirement that once field boundaries are established in a

submittal, the boundaries shall not be changed unless the Department

approves a request in accordance with 62 IAC 1774.13.

7. Sections 1816.133/1817.133 Post-Mining Land Capability

At subsection (a)(2)(C) a typographical error was corrected by

replacing the word ``bound'' by the word ``found.''

8. Sections 1816.151/1817.151 Primary Roads

At subsection (a), Illinois proposes to specify that the

certification shall be submitted within 30 days after completion of

construction. Illinois also defines completion of construction to mean

that the road is being used for its intended purpose as determined by

the Department.

9. Sections 1816.190/1817.190 Affected Acreage Map

At subsection (a), Illinois is proposing to delete the phrase ``and

to the county clerk.''

At subsection (b), Illinois is requiring the permittee to submit an

additional copy of the affected acreage report, which the Department

will then forward to the county clerk. Illinois is also requiring that

one of the copies contain the original signature of a company official.

Also, statutory citations are being updated in subsection (b).

R. 62 IAC 1825.14. High Capability Lands: Soil Replacement

At subsection (e), Illinois proposes adding the title of

``Compaction.''

Subsection (e)(1) is revised by adding the word `'above'' after the

regulatory citation ``Section 2825.14(a). Illinois added new subsection

(e)(1)(E) to specify that excessive compaction is also indicated by

other diagnostic methods approved by the Department.

At subsection (e)(2), Illinois is proposing an additional method

for the Department to evaluate excessive compaction. The permittee will

have a choice between the existing provision and the new provision

which specifies that compaction alleviation is required unless the

permittee can demonstrate that the requirements of 62 IAC 1816.116 or

1816.117, as applicable, have been met without compaction alleviation

on areas reclaimed in a similar manner. A second new provision in

subsection (e)(2) requires the Department to retain sufficient bond at

the time of Phase II bond release if it determines that compaction

alleviation may be needed to achieve the revegetation success

requirements.

S. 62 IAC 1840.17. Review of Decision Not to Inspect or Enforce

Subsection (a) is proposed to be revised by establishing a 30 day

time period within which to request review of the Department's decision

not to inspect or enforce. Failure to file a request for informal

review within this time period shall result in a waiver of the right to

such review.

Subsection (c) is proposed to be amended to reference 62 IAC 1847.3

of the regulations for formal review of the Department's decision not

to inspect or enforce, rather than Section 8.07 of the State Act.

T. 62 IAC 1843. State Enforcement

Illinois proposed revisions to the following sections of part 1843.

1. Section 1843.13 Suspension or Revocation of Permits

At subsection (a)(1), the phrase ``Except as provided in subsection

(b) below'' is deleted.

At subsection (a)(3), the existing provisions are deleted. New

provisions were added which specify that the Department shall promptly

review the history of violations of any permittee who has been cited

for violations of the same or related requirements of the Federal Act,

the State Act, 62 IAC 1700 through 1850 or the permit during three or

more State inspections of the permit area within any twelve month

period. If after such review, the Department determines that a pattern

of violations exists or has existed, an order to show cause as provided

in subsection (a)(1) shall be issued.

Existing subsection (b) was deleted, and existing subsections (c),

(d), (e), and (f) were redesignated as (b), (c), (d), and (e),

respectively.

2. Section 1843.19 Decision Not to Pursue Enforcement Action

Illinois is proposing a new section which would allow termination

of enforcement action on a mine site if specific criteria are met.

Subsection (a) specifies that the Department may elect not to

proceed with state enforcement action on a mine site when the

Department has revoked the permit(s) pursuant to Section 1843.13; when

the Department has forfeited the performance bond pursuant to

Sec. 1800.50, or is diligently pursuing forfeiture; when the Department

has reason to believe the permittee is financially unable to complete

abatement work; when the Department is diligently pursuing collection

of all unpaid civil penalties; when the Department has established, or

assisted OSM in establishing, an ownership and control link for the

entity in question under the violations review criteria of the

regulatory program for purposes of blocking issuance of future mining

permits; and when the Department determines there is no likelihood of

improving existing environmental site conditions if state enforcement

action is taken.

Subsection (b) specifies that the Department shall document in

writing its decision not to pursue enforcement action based upon the

criteria in subsection (a). A copy of the Department's written decision

shall be forwarded to the local OSM office.

U. 62 IAC 1845.12. When Penalty Will Be Assessed

Illinois is proposing to amend subsection (d) by adding a

requirement that the Department take into account the factors set forth

in Sec. 1845.13 when determining the actual amount of the assessment.

V. 62 IAC 1847.3. Hearings

The section heading is changed from ``Permit Hearings'' to

``Hearings.''

At subsection (a), Illinois is specifying that administrative

review under this section also applies to decisions not to inspect or

enforce under 62 IAC 1840.17 and permit decisions issued pursuant to 62

IAC 1785.23.

At subsection (1)(2), Illinois is adding the provision that

judicial review may be requested if the Department failed to act within

specified time limits.

W. 62 IAC 1848.5. Notice of Hearing

Proposed new subsection (f) implements a July 7, 1993, amendment to

Section 2.11 of the State Act pertaining to permit hearing notices. If

the hearing concerns review of a permit decision under 62 IAC 1847.3, a

notice containing the information set forth in subsections (a) and (b)

shall be published in a newspaper of general circulation published in

each county in which any part of the area of the affected land is

located. The notice shall appear no more than 14 days nor less than 7

days prior to the date of the hearing. The notice shall be no less than

one eighth page in size, and the smallest type used shall be twelve

point and shall be enclosed in a black border no less than \1/4\ inch

wide. The notice shall not be placed in that portion of the newspaper

where legal notices and classified advertisements appear. Any

deviations from the requirements of this subsection attributable to the

publishing newspaper shall not be grounds for postponement or

continuance of the hearing, nor will such errors necessitate that the

notice be republished.

X. 62 IAC 1850. Training, Examination and Certification of Blasters

Illinois proposed revisions to the following sections of part 1850.

1. Section 1850.13 Training

At subsection (a), a typographical error was corrected by replacing

the word ``person'' with the word ``persons.''

At subsection (b)(14), various regulation and statute citations

were corrected.

2. Section 1850.14 Examination

Illinois proposed to amend subsection (a) by removing the

requirement that notification of a scheduled examination be made in

writing.

Illinois proposed to amend subsection (b) by removing the

requirement that notification of a scheduled reexamination be made by

letter.

3. Section 1850.15 Application and Certification

Subsection (a) is proposed to be amended by shortening the deadline

for receipt of applications from 45 days to 30 days and by shortening

the deadline for review of applications from 30 to 15 days.

4. Section 1850.16 Denial, Issuance of Notice of Infraction,

Suspension, Revocation, and Other Administrative Actions

Subsection (b) is proposed to be entitled ``Notice of Infraction.''

At subsections (b)(1)(A) and (b)(1)(D), various regulatory and statute

citations are corrected. Subsection (b)(3) is revised by requiring the

blaster to file a request for review with the Department and removing

the existing forwarding provision. The requirement to include specified

information in the request was removed. The hearing regulation

reference was corrected. The hearing is proposed to be held at one of

the Department's offices, and the existing location provision is

removed.

Subsection (c) is proposed to be entitled ``Notice of Show Cause.''

At subsection (c)(2),the word ``public'' was deleted, and the hearing

regulation citation was corrected. At subsection (c)(3), the hearing

regulation citation was corrected.

5. Section 1850.17 Judicial Review

This section is proposed to be repealed as the provision for

judicial review is contained elsewhere in Illinois' regulations.

III. Public Comment Procedures

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

seeking comments on whether the proposed amendment satisfies the

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

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

Written Comments

Written comments should be specific, pertain only to the issues

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

commenter's recommendations. Comments received after the time indicated

under dates or at locations other than the Springfield Field Office

will not necessarily be considered in the final rulemaking or included

in the Administrative Record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under for further information contact by 4 p.m., [C.S.T.]

on November 2, 1994. The location and time of the hearing will be

arranged with those persons requesting the hearing. If no one requests

an opportunity to speak at the public hearing, the hearing will not be

held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

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

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

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

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

to speak have been heard.

Public Meeting

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

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

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

for further information contact. All such meetings will be open to the

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

locations listed under addresses. A written summary of each meeting

will be made a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 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, to the extent allowed by law, this rule meets the

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

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

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

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

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 913

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 11, 1994.

Ronald C. Recker,

Acting Assistant Director, Eastern Support Center.

[FR Doc. 94-2569 Filed 10-17-94; 8:45 am]

BILLING CODE 4310-05-M