Illinois Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-089-FOR]

Illinois Regulatory Program

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

Interior.

ACTION: Proposed rule; reopening and extension of public comment period

on proposed amendment.

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SUMMARY: OSM is announcing receipt of revisions and additional

explanatory information pertaining to a previously proposed amendment

to the Illinois

[[Page 62230]]

regulatory program (hereinafter referred to as the ``Illinois

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

(SMCRA). The revisions and additional explanatory information for

Illinois' proposed regulations pertain to termination of jurisdiction,

permit fees, definitions, 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

recently revised Federal regulations, provide additional safeguards,

clarify ambiguities, and improve operational efficiency.

DATES: Written comments must be received by 4:00 p.m., e.s.t., January

4, 1996. If requested, a public hearing on the proposed amendment will

be held on January 2, 1996. Requests to speak at the hearing must be

received by 4:00 p.m., e.s.t., on December 20, 1995.

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

be mailed or hand delivered to Roger W. Calhoun, Director, Indianapolis

Field Office at the address listed below.

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 Indianapolis Field Office.

Roger W. Calhoun, Director Indianapolis Field Office, Office of Surface

Mining Reclamation and Enforcement, Minton-Capehart Federal Building,

575 North Pennsylvania Street, Room 301, Indianapolis, Indiana, 46204,

Telephone: (317) 226-6700.

Illinois Department of Natural Resources, Office of Mines and Minerals,

524 South Second Street, Springfield, Illinois, 62701-1787, Telephone:

(217) 782-4970.

FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director

Indianapolis Field Office, Telephone: (317) 226-6700.

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, 913.17.

II. Discussion of the Proposed Amendment

By letter dated February 3, 1995 (Administrative Record No. IL-

1615), 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

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

at its won initiative. The provisions of Title 62 of the Illinois

Administrative Code (IAC) that Illinois proposes to amend are 62 IAC

1700, General; 62 IAC 1701.Appendix A, Definitions; 62 IAC 1761.11,

Areas where mining is prohibited or limited, 62 IAC 1772, Requirements

for coal exploration; 62 IAC 1773, Requirements for permits and permit

processing; 62 IAC 1774.13, Permit revisions; 62 IAC 1778.15, Right of

entry information; 62 IAC 1779, Surface mining permit applications--

minimum requirements for information on environmental resources; 62 IAC

1780.23, Reclamation plan: per-mining and post-mining information; 62

IAC 1783, Underground mining permit applications--minimum requirements

for information on environmental resources; 62 IAC 1784.15, Reclamation

plan: pre-mining and post-mining information; 62 IAC 1785, Requirements

for permits for special categories of mining; 62 IAC 1795, Small

operator assistance; 62 IAC 1800, Bonding and insurance requirements

for surface coal mining and reclamation operations; 62 IAC 1816,

Permanent program performance standards--surface mining activities; 62

IAC 1817, Permanent program performance standards--underground mining

activities; 62 IAC 1825.14, High capability lands: soil replacement; 62

IAC 1840, Department inspections; 62 IAC 1843, State enforcement; 62

IAC 1845.12, When penalty will be assessed; 62 IAC 1847, Administrative

and judicial review; 62 IAC 1845.5, Notice of hearing; and 62 IAC 1850,

Training, examination and certification of blasters.

OSM announced receipt of the proposed amendment in the February 27,

1995, Federal Register (60 FR 10522) and invited public comment on its

adequacy. The public comment period ended March 29, 1995.

During its review of the amendment, OSM identified concerns

relating to 62 IAC 1701. Appendix A, definition of wetlands; 62 IAC

1773.20, general procedures for improvidently issued permits; 62 IAC

1773.23, review of ownership or control and violation information; 62

IAC 1773.24, procedures for challenging ownership or control shown in

the Applicant Violator System; 62 IAC 1785.17, prime farmlands; 62 IAC

1816/1817.13 and 1816/1817.15, casing and sealing of drilled holes; 62

IAC 1816/1817.116(a)(3)(F) and 62 IAC 1816.116(a)(4)(A)(ii),

revegetation standards for small isolated areas; 62 IAC

1816.116(a)(4)(D), revegetation standards for hay production; 62 IAC

1816/1817.116(a)(5), wetlands revegetation; 62 IAC 1816/1817.116(c),

revegetation reference areas; and 62 IAC 1816.Appendix A, permit

specifics yield standards. OSM notified Illinois of the concerns by

letters dated April 28 and August 3, 1995 (Administrative Record Nos.

IL-1649 and IL-1660, respectively). Illinois responded in a letter

dated November 1, 1995 (Administrative Record No. IL-1663), by

submitting a revised amendment and additional explanatory information.

Throughout the revised amendment, Illinois proposes to change its

references of the ``Illinois Department of Mines and Minerals'' to the

``Illinois Department of Natural Resources, Office of Mines and

Minerals'' in order to reflect a reorganization change which was

effective July 1, 1995, and to change its references of the ``Soil

Conservation Service'' and ``S.C.S.'' to the ``Natural Resources

Conservation Service.'' Illinois, also, corrected typographical errors,

revised cross-references, and revised paragraph notations to reflect

organizational changes within the amended regulations. In addition,

Illinois proposes revisions to and/or additional explanatory

information for the following specific regulations.

A. 62 IAC 1701.Appendix A Definition of Wetlands

In its letter dated April 28, 1995 (Administrative Record No.

1649), OSM requested Illinois to provide a statement which explains the

meaning of the last sentence of the ``wetlands'' definition [Areas

which are restored or created as

[[Page 62231]]

the result of mitigation or planned construction projects and which

function as a wetland are included within this definition even when all

three wetland parameters are not present]. At the May 31, 1995, meeting

(Administrative Record No. 1654), Illinois stated that it was using the

definition of wetlands contained in the Illinois Interagency Wetland

Policy Act of 1989 (20 ILCS 830/1-6). Illinois explained that the

definition applies to created wetlands which are functioning as a

wetland ``* * * even when all three wetland parameters are not

present.'' Illinois further explained that generally the ``hydric''

soil profile may not be fully developed in an artificial wetland.

Illinois submitted a copy of the ``Interagency Wetlands Policy Act

of 1989'' to OSM (Administrative Record No. 1650A).

B. 62 IAC 1773.20 Improvidently Issued Permits: General Procedures

At 62 IAC 1773.20(c)(4), Illinois proposes to change the word

``rescind'' in the sentence ``If the Department decides to rescind the

permit, it shall give at least 30 days written notice to the

permittee'' to the word ``suspend.''

C. 62 IAC 1773.23 Review of Ownership or Control and Violation

Information

At 62 IAC 1773.23(a), Illinois proposes to change its regulation

reference from ``1773.22(b)'' to ``1773.22.''

At 62 IAC 1773.23(b)(2)(B), Illinois proposes to change its

regulation reference from ``1773.15(b)'' to ``1773.15(b)(1).''

D. 62 IAC 1773.24 Procedures for Challenging Ownership or Control

Links Shown in the Applicant Violator System

At 62 IAC 1773.34(a)(1), Illinois proposes to change the regulation

reference from ``subsections (b) through (d) below and Section

1773,25'' to ``30 CFR 773.24(b) through (d) and 30 CFR 773.25.''

At 62 IAC 1773.24(a)(2), Illinois proposes to change the regulation

reference from ``subsections (b) through (d)'' to ``30 CFR 773.24 (b)

through (d).''

At 62 IAC 1773.24(a)(3), Illinois proposes to replace the language

``the State program for the State that issued the violation notice''

with subsections (b) through (d) below and Section 1 773.25.''

At 62 IAC 1773.24 (b) through (d), Illinois proposes to replace the

originally proposed procedures for those persons eligible under

subsections (a)(1) or (a)(2) to challenge the status of an ownership or

control link shown in the AVS or the status of federal violations with

procedures for those persons eligible under subsection (a)(3) to

challenge the status of state violations. The revised regulations read

as follows:

(b) Any applicant or other person who wishes to challenge an

ownership or control link shown in AVS or the status of a state

violation, and who is eligible to do so under the provisions of

subsection (a)(3) above, shall submit a written explanation of the

basis for the challenge, along with any relevant evidentiary materials

and supporting documents.

(c) The Department shall review any information submitted under

subsection (b) above and shall make a written decision whether or not

the ownership or control link has been shown to be erroneous or has

been rebutted and/or whether the violation covered by the notice

remains outstanding, has been corrected, is in the process of being

corrected, or is the subject of a good faith appeal within the meaning

of Section 1773.15(b)(1).

(d) Notice to applicant.

(1) If, as a result of the decision reached under subsection (c)

above, the Department determines that the ownership or control link has

been shown to be erroneous or has been rebutted and/or that the

violation covered by the notice has been corrected, is in the process

of being corrected, or is the subject of a good faith appeal, the

Department shall so notify the applicant or other person and, if an

application is pending, OSM, and shall correct the information in AVS.

(2) If, as a result of the decision reached under subsection (c)

above, the Department determines that the ownership or control link has

not been shown to be erroneous and has not been rebutted and that the

violation covered by the notice remains outstanding, the Department

shall so notify the applicant or other person and, if an application is

pending, OSM, and shall update the information is AVS, if necessary.

(3) The Department shall serve a copy of the decision on the

applicant or other person by certified mail, or by any means consistent

with the rules governing service of a summons and complaint under Rule

4 of the Federal Rules of Civil Procedure. Service shall be complete

upon tender of the notice or of the mail and shall not be deemed

incomplete because of a refusal to accept.

(4) The applicant or other person may appeal the Department's

decision within 30 days of service of the decision in accordance with

62 Ill. Adm. Code 1847.3. The Department's decision shall remain in

effect during the pendency of the appeal, unless temporary relief is

granted in accordance with 62 Ill. Adm. Code 1847.3(k).

E. 62 IAC 1785.17 Prime Farmlands

At 62 IAC 1785.17(d)(1), Illinois proposes to reinstate the

sentence ``The State recognizes that the permit cannot be issued

without the required consultation with USDA.''

F. 62 IAC 1816 (Surface Mining Activities) and 1817 (Underground

Mining Activities) Permanent Program Performance Standards

Since most of the surface mining and underground mining regulations

in these parts are identical, the revisions are being combined for

discussion purposes, unless otherwise noted.

1. 62 IAC 1816.13 and 1816.15 Casing and Sealing of Drilled Holes and

62 IAC 1817.13 and 1817.15 Casing and Sealing or Exposed Underground

Openings

Illinois proposes to withdraw its originally proposed requirements

that exposed underground openings be backfilled.

2. IAC 1816.116(a)(2)(F)/1817.116(a)(2)(F) Revegetation Standards for

Success: Augmentation

a. At 62 IAC 1816/1817.116(a)(2)(F)(i), Illinois proposes to

reinstate the existing language from 62 IAC 1816/1817.116(a)(2)(F)(ii)

and add some clarification language. This revised provision reads as

follows:

The five (5) year period of responsibility shall not recommence

after deep tillage on areas where the operator has met the

revegetation success standards of subsection (a)(3)(E) below.

b. Originally proposed 62 IAC 1816/1817.116(a)(2)(F) is

redesignated 62 IAC 1816/1817.116(a)(2)(F)(ii), and Illinois proposes

to add the follow exception to its provision that considers the

application of chemical treatments or fertilizers to wetland areas as

augmentation.

Except that wetlands managed as wildlife food plot areas using

agricultural techniques shall not be considered augmented when

normal husbandry practices, such as routine liming and

fertilization, are used.

3. 62 IAC 1816.116(a)(3)(F)/1817.116(a)(3)(F) Revegetation Standards

for Success: Non-contiguous Areas

If response to issues raised in OSM's letters dated April 28 and

August 3, 1995 (Administrative Record Nos. IL-1649 and IL-1660,

respectively), Illinois proposes to revise 62 IAC 1816/

1817.116(a)(3)(F) to read as follows.

[[Page 62232]]

Non-contiguous areas less than or equal to four acres which were

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

boreholes, power poles, stockpiles and substations shall be

considered successfully revegetated if the operator can demonstrate

that the soil disturbance was minor, i.e., the majority of the

subsoil remains in place, 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.

Also, Illinois' amendment transmittal letter dated November 1,

1995, contains a justification statement with an attached map

(Administrative Record No. IL-1663). The map, which is marked as

Exhibit #4, shows an example of several small substations which served

an underground mine and which had minor disturbances and which were

returned to cropland use. In its statement, Illinois references In Re:

Permanent Surface Mining Regulation Litigation (Civil Action No. 79-

1144, May 16, 1980) as justification for the proposed regulation.

Illinois also attached a memorandum dated September 1, 1995, from the

Illinois Department of Agriculture which concurred with the four acre

threshold relative to the testing of small isolated areas for

revegetation success.

4. 26 IAC 1816.116(a)(4)(A)(ii) Revegetation Standards for Success:

Proof of Productivity for Non-Contiguous Areas

Illinois proposes to revise its proposed provision at 62 IAC

1816.116(a)(4)(A)(ii) which would allow the productivity results of a

larger field to represent small isolated areas to read as follows.

The Department may approve a field to represent non-contiguous

areas less than or equal to four acres of the same capability if it

determines that the field is representative of reclamation of such

areas. These areas shall be managed and vegetated in the same manner

as the representative field.

In its letter dated November 1, 1995 (Administrative Record No. IL-

1663), Illinois stated that ``* * * These areas will be vegetated and

managed in the same manner as their associated larger field under

approved and proper management practices.''

5. 62 IAC 1816.116(a)(4)(D) Revegetation Standards for Hay Production

At 62 IAC 1816.116(a)(4)(D), Illinois proposes to withdraw the

following previously proposed language.

Prior successful hay production shall not be affected by deep

tillage for crop production.

6. 62 IAC 1816.116(a)(5)/1817.116(a)(5) Wetland Revegetation

In its letter dated April 28, 1995 (Administrative Record No.

1649), OSM requested Illinois to provide a statement and technical

support for 62 IAC 1816/1817.116(a)(5) which justifies why a minimum

areal coverage of 30 percent for wetlands will be consistent with the

revegetation standards for ground cover for areas to be developed for

fish and wildlife habitat at 30 CFR 816/817.116(a)(3)(iii).

At the May 31, 1995, meeting (Administrative Record No. 1654),

Illinois described a U.S. Fish and Wildlife Service, Biological

Services Program, publication on the qualitative values of wetlands

with various degrees of emergent vegetation at the 20 to 70 percent

levels. The study ranked 70 percent cover as having the lowest value,

50 percent as having the highest value, and 30 percent as having a

middle value. Illinois stated its belief that attainment of the 30

percent level of areal vegetation cover is adequate to establish a

valuable wetland which is likely to improve with time, justifying its

use as a revegetation success standard.

Illinois submitted the publication, which was entitled

``Classification of Wetlands and Deepwater Habitats of the United

States,'' U.S. Department of the Interior, Fish and Wildlife Service,

Biological Services Program, FWS/OBS-79/31, December 1979, to OSM on

June 8, 1995 (Administrative Record No. 1653). Illinois, also,

submitted two additional reference documents in support of its wetlands

revegetation standards: (1) Vol. II of ``Wetland Creation and

Restoration--The Status of the Science,'' U.S. Environmental Protection

Agency, Environmental Research Laboratory, EPA 600/3-89/038b, October

1989, (Administrative Record No. IL-1650) and (2) Journal of Wildlife

Management, 1981, University of Michigan Study, Dabbling Duck and

Aquatic Macroinvertebrate Responses to Manipulated Wetland Habitat, J.

Wildl. Manage.45(1):1981 (Administrative Record No. IL-1650B).

7. 62 IAC 1816.116(c) and 1817.116(c) Use of Reference Areas for

Determining Revegetation

Illinois proposes to withdraw its proposed regulations at 62 IAC

1816.116(c) and 1817.116(c) concerning the use of a reference area in

lieu of the Agricultural Lands Productivity Formula Target Yields to

determine the success of revegetation for cropland and hayland.

8. 62 IAC 1816.Appendix A Agricultural Land Productivity Formula

a. Under the heading ``Permit Specifics--Yield Standard'', Illinois

proposes to modify sections (a) and (b) to clarify that target yields

are calculated by ``pit'' rather than ``permit.'' Therefore, Illinois

proposes to change the words ``permit,'' ``mine permit area,'' and

``permit area'' to ``pit.''

Illinois, also, submitted examples for the justification of

consolidating yield targets by pit rather than permit in its November

1, 1995, submittal (Administrative Record No. IL-1663). Exhibit #1 is a

composite map identifying 18 pits which are included in ten permits

whose reclamation plans are developed on a pit basis to balance prime

farmland, and high capability land liability. Exhibit #2 is a printout

of the base yield targets from a mine with a pit which was originally

contained under three separate contiguous permits. Later, all three

permits were repermitted under one large permit. As a result, the yield

targets were consolidated due to the repermitting. The yield

differences between permits and the mean varied approximately 5

percent. Exhibit #3 is a printout of the base yield targets from a mine

with a pit which was originally contained under two separate contiguous

permits. These permits were not consolidated under one permit; however,

as the small acreage permit represented just the last few years of

mining and included the final cut impoundment, some of the cropland

liability was located into the older permit. In other words, the actual

soils and liability accrued were moving across permit lines. A

composite yield target based on a pit concept reflects the actual way

the soil was handled.

b. Illinois proposes to change previously proposed section (e) to

(c) and proposes to revise the language as follows:

After mining operations have ceased, the Department shall

recalculate the yield standards for the pit based solely on the

soils which were disturbed. Recalculated targets shall be applicable

to all areas tested for productivity subsequent to the

recalculation. Approved significant revisions after permanent

cessation of mining shall cause the targets to be recalculated and

applied to productivity fields tested after the recalculation.

c. Illinois proposes to withdraw previously proposed sections (c),

(d), and (f).

G. 62 IAC 1848.5 Notice of Hearing

At 62 IAC 1848.5(f), Illinois proposes to withdraw the following

previously proposed sentence.

[[Page 62233]]

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.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Illinois

program amendment to provide the public an opportunity to reconsider

the adequacy of the proposed amendment in light of the additional

materials submitted. 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 Indianapolis 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 4:00 p.m.,

e.s.t., on December 20, 1995. 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.

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.

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 proposed 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: November 20, 1995.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 95-29509 Filed 12-4-95; 8:45 am]

BILLING CODE 4310-05-M