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: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Illinois

regulatory program (hereinafter referred to as the ``Illinois

program'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). Illinois proposed revisions to three statutes in the Illinois

Surface Coal Mining Land Conservation and Reclamation Act (State Act)

pertaining to small operator assistance, vegetation requirements for

lands eligible for remining, and fees and civil penalties. The

amendment is intended to incorporate the additional flexibility

afforded by SMCRA, as amended by the Abandoned Mine Reclamation Act of

1990 and the Energy Policy Act of 1992. It is also intended to improve

operational efficiency.

EFFECTIVE DATE: November 21, 1994.

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Director, Springfield Field Office, 511 W. Capitol,

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

SUPPLEMENTARY INFORMATION:

I. Background on the Illinois Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

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. Submission of the Proposed Amendment

By letter dated September 9, 1994 (Administrative Record No. IL-

1550), Illinois submitted a proposed amendment to its program pursuant

to SMCRA. Illinois submitted the proposed amendment at its own

initiative. The proposed amendment pertains to changes to the State Act

(225 ILCS 720) which were enacted through Public Act 88-599 (HB 2349)

and signed into law by the Governor of Illinois on September 1, 1994.

Illinois proposed to revise 225 ILCS 720/2.02(b) concerning small

operator assistance, to add new subsection 225 ILCS 720/3.15(e)

concerning the responsibility period for successful revegetation on

lands eligible for remining, and to revise 225 ILCS 720/9.07(a)

concerning the deposit of fees and civil penalties.

OSM announced receipt of the proposed amendment in the September

29, 1994, Federal Register (59 FR 49618), and in the same document

opened the public comment period and provided an opportunity for a

public hearing on the adequacy of the proposed amendment. The public

comment period closed on October 31, 1994.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

1. 225 ILCS 720/2.02 Contents of Permit Application

Illinois proposed revisions to 225 ILCS 720/2.02 pertaining to the

Illinois Small Operator Assistance Program (SOAP).

a. At 225 ILCS 720/2.02(b), Illinois proposed to increase the

amount of probable total annual production allowed for SOAP applicants

from 100,000 to 300,000 tons.

On November 5, 1990, the Abandoned Mine Reclamation Act of 1990

amended section 507(c)(1) of SMCRA to increase the amount of probable

total annual production allowed for SOAP applicants to 300,000 tons.

Therefore, the Director finds Illinois' proposed revision at 225 ILCS

720/2.02(b) is consistent with and no less stringent than the

counterpart provision in section 507(c)(1) of SMCRA.

b. At 225 ILCS 720/2.02(b), Illinois also proposed the deletion of

existing program services at subsections (b)(1) through (b)(3) and the

addition of the following new or enhanced program services at

subsections (b)(1) through (b)(6): (1) The determination of probable

hydrologic consequences, including the engineering analyses and designs

necessary for the determination; (2) the development of cross-section

maps and plans; (3) the geologic drilling and statement of results of

test borings and core samplings; (4) the collection of archaeological

information and any other archaeological and historical information

required by the Department, and the preparation of plans necessitated

thereby; (5) pre-blast surveys; and (6) the collection of site specific

resource information and production of protection and enhancement plans

for fish and wildlife habitats and other environmental values required

by the Department under this Act.

On October 24, 1992, the Energy Policy Act of 1992 amended section

507(c)(1) of SMCRA by adding substantively the same new and enhanced

program services at paragraphs (A) through (F). The Director finds that

the provisions for program services at 225 ILCS 720/2.02 (b)(1) through

(b)(6) are consistent with and no less stringent than the provisions

for program services at section 507 (c)(1)(A) through (c)(1)(F) of

SMCRA.

c. At 225 ILCS 720/2.02(b), Illinois also proposed the following

SOAP assistance reimbursement requirement: A coal operator that has

received assistance pursuant to this subsection shall reimburse the

regulatory authority for the cost of the services rendered if the

program administrator finds that the operator's actual and attributed

annual 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.

On October 24, 1992, the Energy Policy Act of 1992 amended SMCRA by

adding section 507(h) which contains substantively the same

reimbursement requirement as the Illinois proposal for services

rendered under section 507(c)(1) or section 507(c)(2) of SMCRA. The

Illinois proposal is consistent with section 507(h) of SMCRA with one

exception. It does not require reimbursement for services provided

under section 507(c)(2) of SMCRA.

OSM currently interprets section 507(c)(2) of SMCRA to require that

the Secretary of the Interior, and not the State regulatory authority,

provide or assume the cost of training coal operators. In accordance

with that interpretation, Illinois is not, at this time, obligated to

propose statutory provisions consistent with section 507(c)(2) and

section 507(h) of SMCRA with regard to training assistance. Therefore,

the Director finds the new provision at 225 ILCS 720/2.02(b) is

consistent with and no less stringent than the counterpart provision at

section 507(h) of SMCRA as it relates to reimbursement of costs for

services rendered under section 507(c)(1) of SMCRA.

2. 225 ILCS 720/3.15 Vegetation

Illinois proposed to amend 225 ILCS 720/3.15 by adding two

provisions at new subsection (e) pertaining to the responsibility

period for successful revegetation on lands eligible for remining.

a. Illinois proposed to add a provision at 225 ILCS 720/3.15(e)

which requires that the responsibility period for successful

revegetation on lands eligible for remining shall be two full years

after the last year of augmented seeding, fertilizing, irrigation or

other work.

On October 24, 1992, the Energy Policy Act of 1992 amended SMCRA by

adding section 515(b)(20)(B) which contains a substantively identical

requirement for lands eligible for remining. Therefore, the Director

finds that the provision at 225 ILCS 720/3.15(e) is consistent with and

no less stringent than the counterpart provision in section

515(b)(20)(B) of SMCRA.

b. Illinois also proposed a provision at 225 ILCS 720/3.15(e) which

clarifies that the requirement discussed in finding 2.a does not

preclude application of responsible land management practices if they

are deemed necessary and approved by Illinois.

Although section 515(b) of SMCRA does not contain a similar

provision, this provision is not inconsistent with the Federal

regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4) which allow

approval of selective husbandry practices without restarting the

responsibility period for revegetation if the regulatory authority

obtains prior approval from the Director that the practices are normal

husbandry practices.

The Illinois program contains counterpart regulations which allow

approval of selective husbandry practices at 62 Illinois Administrative

Code (IAC) 1816.116(a)(2)(C) and 1817.116(a)(2)(C). Illinois limits its

approval to normal conservation and land use management practices for

the State of Illinois that are included in its regulations at 62 IAC

1816.116 and 1817.116. The selective husbandry practices included in

the Illinois program have been approved by OSM as normal husbandry

practices in accordance with the Federal regulations at 30 CFR

816.116(c)(4) and 817.116(c)(4).

Therefore, the Director finds Illinois' proposed provision at 225

ILCS 720/3.15(e), when read in light of the regulatory limitations at

62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C), is not inconsistent

with the requirements of section 515(b)(20)(B) of SMCRA and the Federal

regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4).

3. 225 ILCS 720/9.07 Fees and Forfeitures

Illinois revised 225 ILCS 720/9.07(a) by requiring all fees and

civil penalties collected under the State Act be deposited into the

Coal Mining Regulatory Fund instead of the general revenue fund.

The revision was proposed to comply with new requirements in the

State Finance Act (30 ILCS 105). Illinois Public Act 88-599 established

the Coal Mining Regulatory Fund and added section 6z-36 to the State

Finance Act. Section 6z-36 requires all moneys collected as fees and

civil penalties under the State Act be deposited into the Coal Mining

Regulatory Fund. The moneys in the fund will then be annually

appropriated to the Department of Mines and Minerals for the

enforcement of coal mining regulatory laws and rules.

There is no direct Federal counterpart to 225 ILCS 720/9.07(a).

However, the proposed amendment is not inconsistent with the general

requirements for permit fees at section 507(a) of SMCRA or 30 CFR

777.17 of the Federal regulations, which establish provisions for

permit fees. Also, the proposed amendment is not inconsistent with the

general requirements for civil penalties at Section 518 of SMCRA or 30

CFR 845 of the Federal regulations, which establish provisions for

assessment of civil penalties. Therefore, the Director finds that the

proposed revision to 225 ILCS 720/9.07(a) is not inconsistent with the

requirements of SMCRA or the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No public comments were

received, and because no one requested an opportunity to speak at a

public hearing, no hearing was held.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Illinois program. No Federal

agency comments were received.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(i), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that Illinois proposed to make in its amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

Pursuant to 732.17(h)(11)(ii), OSM solicited comments on the

proposed amendment from EPA (Administrative Record No. IL-1551). EPA

responded on September 27, 1994, that it had reviewed the proposed

amendment and had no comment to offer (Administrative Record No. IL-

1554).

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments from the SHPO and ACHP for all amendments that may have an

effect on historic properties. By letter dated September 21, 1994, OSM

solicited comments from the SHPO and ACHP (Administrative Record No.

IL-1553). The SHPO gave its written concurrence with the proposed

amendment on October 18, 1994 (Administrative Record No. IL-1557).

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Illinois on September 9, 1994.

The Director is also taking this opportunity to make a correction

to 30 CFR 913.10. The Department of Mines and Minerals was empowered by

the State Act at 225 ILCS 720/9.02 (formerly Ill. Rev. Stat. 1991, ch.

96 1/2, Section 7909.02) to act as the regulatory authority for the

State of Illinois under SMCRA. Therefore, the existing designation at

30 CFR 913.10 which deems the Department of Mines and Minerals,

Division of Land Reclamation as the regulatory authority in Illinois is

being removed. The Department of Mines and Minerals is designated as

the regulatory authority in Illinois, and 30 CFR 913.10 is being

revised to reflect this decision.

The Federal regulations at 30 CFR Part 913, codifying decisions

concerning the Illinois program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the Illinois program, the Director will recognize only the

statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Illinois of only such

provisions.

VI. 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

corresponding 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 corresponding Federal regulations.

List of Subjects in 30 CFR Part 913

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 15, 1994.

Alfred E. Whitehouse,

Acting Assistant Director, Eastern Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 913--ILLINOIS

1. The authority citation for Part 913 is revised to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 913.10 is amended by revising the second sentence to

read as follows:

Sec. 913.10 State regulatory program approval.

* * * Beginning on that date, the Department of Mines and Minerals

shall be deemed the regulatory authority in Illinois for all surface

coal mining and reclamation operations and all exploration operations

on non-Federal and non-Indian lands.* * *

3. Section 913.15 is amended by adding paragraph (q) to read as

follows:

Sec. 913.15 Approval of regulatory program amendments.

* * * * *

(q) The following revisions to or the addition of the following

statutes, as submitted to OSM on September 9, 1994, are approved

effective November 21, 1994.

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225 ILCS 720 Topic

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2.02(b)..... Contents of Permit Application; SOAP provisions.

3.15(e)..... Vegetation; revegetation requirements for lands eligible

for remining.

9.07(a)..... Fees and Forfeitures; deposit of permit fees and civil

penalties into the Coal Mining Regulatory Fund.

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[FR Doc. 94-28625 Filed 11-18-94; 8:45 am]

BILLING CODE 4310-05-M