Illinois Regulatory Program
Federal RegisterMay 29, 1996
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DEPARTMENT OF THE INTERIOR
30 CFR Part 913
[SPATS No. IL-089-FOR]
Illinois Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
[[Page 26802]]
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with certain exceptions and additional
requirements, 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 and additions of regulations pertaining to termination of
jurisdiction, permit fees, definitions, coal exploration, permitting,
environmental resources, reclamation plans, special categories of
mining, small operator assistance, bonding, performance standards,
revegetation, 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, clarify
ambiguities, and improve operational efficiency.
EFFECTIVE DATE: May 29, 1996.
FOR FURTHER INFORMATION CONTACT:
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 46204-1521, Telephone: (317) 226-6700.
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 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
required program amendments at 30 CFR 913.16(s), (t), and (u), and at
its own initiative. Illinois proposed to revise or add provisions to
the following parts or sections of its program: 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 AC 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--premining and postmining information; 62 IAC
1783, underground mining permit applications: minimum requirements for
information on environmental resources; 62 IAC 1784.15, reclamation
plan--premining and postmining 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, 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 19522), 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 March 29, 1995. A public hearing was requested and was
held on March 24, 1995, as scheduled.
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 of control and violation information; 62
IAC 1773.24, procedures for challenging ownership or control shown in
the Applicant Violator System; 62 IAC 1774.13(d)(6), incidental
boundary revisions; 62 IAC 1785.17, prime farmlands; 62 IAC 1816/
1817.13 and 1816/1817.46(e)(2), siltation structures; 62 IAC 1816/
1817.116(a)(3)(F) and 62 IAC 1816(a)(4)(A)(ii), revegetation standards
for small isolated areas; 62 IAC 1816.116(a)(4)(D), revegetation
standards for hay production; 62 IAC 1816.116(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).
By letter dated November 1, 1995 (Administrative Record No. IL-
1663), Illinois responded to OSM's concerns by submitting additional
explanatory information and revisions to its proposed program
amendment. Based upon the additional explanatory information and
revisions to the proposed program amendment submitted by Illinois, OSM
reopened the public comment period in the December 5, 1995, Federal
Register (60 FR 62229) and provided an opportunity for a public hearing
on the adequacy of the revised amendment. The public comment period
closed on January 4, 19996. The public hearing scheduled for January 2,
1996, was not held because no one requested an opportunity to testify.
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.
A. Revisions to Illinois' Regulations That Are Not Substantive in
Nature
Revisions not specifically discussed in this final rule concern
nonsubstantive wording changes, corrected typographical errors, or
revised cross-references and paragraph notations to reflect
organizational changes within the amended regulations.
Throughout its revised regulations, Illinois proposed to change
specific 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; to change its citation references of the
``Ill. Rev. Stat. 1989, ch. 96\1/2\, pars. 7901.01 et seq.'' to ``225
ILCS 720'' to reflect recodification of the Illinois Surface Coal
Mining Land
[[Page 26803]]
Conservation and Reclamation Act (State Act) that occurred in 1992; and
to change its references of the ``Soil Conservation Service'' and
``S.C.S.'' to the ``Natural Resources Conservation Service'' and
``NRCS'' to reflect that Federal agency's change in name.
The above proposed revisions do not alter the substance of the
previously approved provisions in the Illinois regulations. Therefore,
the Director finds that they will not render the Illinois regulations
less effective than the Federal regulations.
B. Revisions to Illinois' Regulations That Are Substantively Identical
to the Corresponding Provisions of the Federal Regulations
1. Revisions to Existing Regulations and New Regulations
62 IAC 1700.11(f), Termination of jurisdiction (30 CFR 700.11(d));
62 IAC 1701.Appendix A, Definition of ``Applicant Violator System or
AVS'' (30 CFR 773.5); 62 IAC 1701.Appendix A, Definition of ``Federal
violation notice'' (30 CFR 773.5); 62 IAC 1701.Appendix A, Definition
of ``Historic lands'' (30 CFR 762.5); 62 IAC 1701.Appendix A,
Definition of ``Land eligible for remining'' (30 CFR 701.5); 62 IAC
1701.Appendix A, Definition of ``Ownership or control link'' (30 CFR
773.5); 62 IAC 1701.Appendix A, Definition of ``State violation
notice'' (30 CFR 773.5); 62 IAC 1701.Appendix A, Definition of
``Substantially disturb'' (30 CFR 701.5); 62 IAC 1701.Appendix A,
Definition of ``Violation notice'' (30 CFR 773.5); 62 IAC
1761.11(a)(4)(B), Areas where mining is prohibited or limited (30 CFR
761.11(d)(2)); 62 IAC 1773.15 (b)(1) and (b)(2), Review of violations
(30 CFR 773.15 (b)(1) and (b)(2)); 62 IAC 1773.20(b), Improvidently
issued permits review criteria (30 CFR 773.20(b)); 62 IAC
1773.20(c)(4), Improvidently issued permits remedial measures (30 CFR
773.20(c)(2)); 62 IAC 1773.21(a), Automatic suspension and rescission
(30 CFR 773.21(a)); 62 IAC 1773.22, Verification of ownership or
control application information (30 CFR 773.22); 62 IAC 1773.23, Review
of ownership or control and violation information (30 CFR 773.23); 62
IAC 1773.24(a), procedures for challenging ownership or control links
shown in the Applicant Violator System (30 CFR 773.24(a)); 62 IAC
1773.25, Standards for challenging ownership or control links and the
status of violations (30 CFR 773.25); 62 IAC 1780.23(a) (1)-(2),
Reclamation plan premining information for surface mining permit
applications (30 CFR 780.23(a) (1)-(2)); 62 IAC 1780.23 (b) and (c),
Reclamation plan postmining information for surface mining permit
applications (30 CFR 780.23 (b) and (c)); 62 IAC 1784.15(a) (1)-(2),
Reclamation plan premining information for underground mining permit
applications (30 CFR 784.15(a) (1)-(2)); 62 IAC 1784.15 (b) and (c),
Reclamation plan postmining information for underground mining permit
applications (30 CFR 784.15 (b) and (c)); 62 IAC 1795.4(b), Definition
of ``Qualified laboratory'' (30 CFR 795.3); 62 IAC 1795.6 (b), (b)(1),
and (b)(2), Small operator assistance--eligibility for assistance (30
CFR 795.6 (a)(2), (a)(2)(i), and (a)(2)(ii)); 62 IAC 1795.9 (b)(1)-
(b)(5), Small operator assistance--program services and data
requirements (30 CFR 795.9 (b)(1)-(b)(5)); 62 IAC 1795.12(a)(2), Small
operator assistance--applicant liability (30 CFR 795.12(a)(2)); 62 IAC
1816.79, Protection of underground mining (30 CFR 816.79); 62 IAC
1816.97(b), Endangered and threatened species--surface mining (30 CFR
816.97(b)); 62 IAC 1817.97(b), Endangered and threatened species--
underground mining (30 CFR 817.97(b)); 62 IAC 1840.11 (g) and (h),
Inspections by the Department--abandoned sites (30 CFR 840.11 (g) and
(h)); 62 IAC 1843.13(a)(3), Suspension or revocation of permits (30 CFR
843.13(a)(3)); 62 IAC 1843.13(a)(4)(B), Suspension or revocation of
permits (30 CFR 843.13(a)(4)(ii)); 62 IAC 1843.13(b), Suspension or
revocation of permits (30 CFR 843.13(d)); and 62 IAC 1843.23,
Enforcement actions at abandoned sites (30 CFR 843.22).
Because the above proposed revisions and/or additions are identical
in meaning to the corresponding Federal regulations, shown in brackets,
the Director finds that Illinois' proposed regulations are no less
effective than the Federal regulations.
2. Deletions of Existing Regulations
62 IAC 1773.21(c), Improvidently issued permits--appeals of
rescission notices (30 CFR 773.21(c), 59 FR 54306, October 28, 1994);
62 IAC 1779.22, Surface coal mining application requirements for
premining land use information (30 CFR 779.22, 59 FR 27932, May 27,
1994); 62 IAC 1779.25(a)(11), Surface coal mining application
requirements for premining slope measurements (30 CFR 779.25(a)(11), 59
FR 27932, May 27, 1994); 62 IAC 1783.22, Underground coal mining
application requirements for premining land use information (30 CFR
783.22, 59 FR 27932, May 27, 1994); and 62 IAC 1783.25(a)(11),
Underground coal mining application requirements for premining slope
measurements (30 CFR 783.25(a)(11), 59 FR 27932, May 27, 1994).
The above proposed deletions are consistent with OSM's repeal of
the Federal counterpart regulations, shown in brackets. Therefore, the
Director finds that the proposed deletions will not render the Illinois
regulations less effective than the Federal regulations.
C. Revisions to Illinois' Regulations That Are Substantive in Nature
1. 62 IAC 1700.16(a) Fees
Illinois proposed a revision to 62 IAC 1700.16(a) that requires
fees collected under the provisions of the Surface Coal Mining Land
Conservation and Reclamation Act (State Act) be deposited in the Coal
Mining Regulatory Fund instead of the general revenue fund. This
revision implements the requirements at 225 ILCS 720/9.07 of the State
Act that OSM approved on November 21, 1994 (59 FR 59918). The Coal
Mining Regulatory Fund was established to receive money for
administration of the Illinois program. There is no direct Federal
counterpart to 62 IAC 1700.16(a). However, the proposed amendment is
not inconsistent with the general requirements for permit fees at
section 507(a) of SMCRA and 30 CFR 777.17 of the Federal regulations.
Therefore, the Director finds that the proposed revision to 62 IAC
1700.16(a) is not inconsistent with the requirements of SMCRA or the
Federal regulations.
2. 62 IAC 1701.Appendix A Wetland Definition
Illinois proposed to add the definition of ``wetland'' from the
Illinois Interagency Wetland Policy Act of 1989 (20 ILCS 830/I-6(a)) to
its regulations at 62 IAC 1701.Appendix A. Illinois proposed the
definition because it had proposed standards for wetland revegetation
in its regulations at 62 IAC 1816/1817.116(a)(5). Illinois defined
wetland to mean ``land that has a predominance of hydric soils (soils
which are usually wet and where there is little or no free oxygen) and
that is inundated or saturated by surface or groundwater at a frequency
and duration sufficient to support, and that under normal circumstances
does support, a prevalence of hydrophytic vegetation (plants typically
found in wet habitats) typically adapted for life in saturated soil
conditions. Areas which are restored or created as 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.''
[[Page 26804]]
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 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 explained that generally the ``hydric'' soil profile
may not be fully developed in a newly created wetland. This concept is
consistent with the U.S. Army Corps of Engineers (Corps) Wetlands
Delineation Manual, Technical Report Y-87-1 (Administrative Record No.
IL-1616). In the manual, the Corps states that ``Although wetland
indicators of all three parameters (i.e. vegetation, soils, and
hydrology) may be found in some man-induced wetlands, indicators of
hydric soils are usually absent. Hydric soils require long periods
(hundreds of years) for development of wetness characteristics, and
most man-induced wetlands have not been in existence or a sufficient
period to allow development of hydric soil characteristics * * *.''
The Federal regulations at 30 CFR Chapter VII do not contain a
counterpart wetland definition. However, the Illinois definition is not
inconsistent with the provisions of section 515(b)(24) of SMCRA or the
Federal regulations at 30 CFR 816/817.97(f) pertaining to wetlands and
habitats of unusually high value for fish and wildlife. These
provisions require the operator to minimize disturbances and adverse
impacts to fish and wildlife and to enhance wherever practical or
restore habits or high value for fish and wildlife, including wetlands.
Based on the above discussion, the Director finds that Illinois'
proposed definition of wetland is not inconsistent with SMCRA or the
Federal regulations.
3. 62 IAC 1772.11(b)(5) Notice Requirements for Exploration Removing
250 Tons of Coal or Less
At 62 IAC 1772.11(b)(5), Illinois proposed to clarify that forms
OG-7 and OG-8 are required to be submitted with a coal exploration
notice only if such forms are required by the Department's Oil and Gas
Division.
There is no direct Federal regulation counterpart. However, the
Director finds the proposed regulation is not inconsistent with the
general provisions governing coal exploration notice requirements at 30
CFR 772.11.
4. 62 IAC 1772.12(d)(2) Decision on an Application for Exploration
Removing More Than Two Hundred and Fifty (250) Tons of Coal
Illinois proposed to revise 62 IAC 1772.12(d)(2) by replacing the
word ``operation'' with the word ``permit'' in the phrase ``application
for a coal exploration operation.'' The Director finds the revised
language is substantively identical to the language in the Federal
counterpart regulation at 30 CFR 772.12(d)(2); and it is, therefore, no
less effective than the Federal regulation.
At 62 IAC 1772.12(d)(2)(C), Illinois proposed to delete its
reference to the ``agency with jurisdiction over State Historic
Preservation'' and replace it with the name of the agency, ``Illinois
Historic Preservation Agency,'' that has jurisdiction over cultural and
historical resources in Illinois. The Director finds that referencing
the actual agency that has jurisdiction adds clarity to this provision
and does not render the previously approved regulation less effective
than the Federal counterpart regulation at 30 CFR 772.12(d)(2)(iii).
5. 62 IAC 1773.15(a)(1) Review of Permit Applications
Illinois offers the opportunity for both an informal conference and
a public hearing on the decision to issue deny, or modify a permit
application. Illinois is proposing to revise 62 IAC 1773.15(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. This is
consistent with the Illinois Attorney General's legal opinion dated
June 13, 1980, which was required by OSM in accordance with 30 CFR
731.14(c) prior to State program approval. In the Illinois Attorney
General's opinion, the public hearing at 62 IAC 1773.14 met the
requirements of the informal conference in the Federal regulations at
30 CFR 773.13(c). Illinois' informal conference at section 1773.13(c)
was considered an optional, additional step for public participation in
permit processing. Therefore, the Director finds that the Illinois
regulation at 62 IAC 1773.15(a)(1), as amended, is no less effective
than the counterpart Federal regulation at 30 CFR 773.15(a)(1).
6. 62 IAC 1773.24 Procedures for Challenging Ownership or Control
Shown in the Applicant Violator System
Illinois proposed new provisions at 62 IAC 1773.24 (b) through (d)
that provide procedures for challenges concerning the status of State
violations to which persons shown on the Applicant Violation System
(AVS) have been linked. These proposed procedures are substantively
identical to the procedures in the Federal regulations at 30 CFR 773.24
(b) through (d) for challenges concerning an ownership or control link
shown in the AVS or the status of a Federal violation. Therefore, the
Director finds that Illinois' regulations at 62 IAC 1773.24 (b) through
(d) for challenging the status of State violations are no less
effective than 30 CFR 773.24 (b) through (d) of the Federal regulations
for challenging the status of Federal violations.
7. 62 IAC 1774.13 Application Requirements and Procedures for Permit
Revisions
a. Section 1774.13(b)(2)(E). At subsection (b)(2)(E), Illinois is
proposing that a significant revision be required for land use changes
involving greater than 5 percent of the ``Total permit acreage''
instead of the ``original total permit acreage.'' This proposed change
in language allows adjustment to the previously approved 5 percent
cumulative total limitation. The proposed addition of subsection
1774.13(b)(2)(E)(i) would allow the accumulation of the 5 percent 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 1774. 13(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 percent limit if the
acreage has been addressed previously in a significant revision.
Changing the land use on more than an accumulated 5 percent of the
permit area through the insignificant revision process without giving
the public an opportunity for review and comment through the
significantly revision process would still not be allowed under the
proposed revision. It is also noted that Illinois requires all
alternative land use revisions, both significant and insignificant, to
comply with its postmining land capability requirements at 62 IAC
1816.133 or 1817.133 and requires consultation with the landowner or
the land management agency with jurisdiction over the lands before
approval of either type of revision.
The Federal counterpart regulation for permit revisions at 30 CFR
774.13(b) requires the regulatory authority to establish guidelines for
the scale or extent of revisions for which all the permit application
requirements will apply. OSM determined in the September 28, 1983,
Federal Register
[[Page 26805]]
948 FR 44344) that this requirement provided flexibility to the
regulatory authority to establish guidelines suitable to the operation
of individual State programs. Therefore, the Director finds that the
proposed revisions represent a reasonable application by Illinois of
the requirement in 30 CFR 774.13(b) and that 62 IAC 1774.13(b), as
amended, is no less effective than the counterpart Federal regulation
for permit revisions.
b. Section 1774.13(d)(6). Illinois is proposing to amend its
regulations pertaining to incidental boundary revisions as a partial
response to an August 5, 1993, letter (Administrative Record No. IL-
1400) that was sent to Illinois in accordance with 30 CFR 732.17(c) and
(e)(3). OSM had determined that Illinois' administration of its
incidental boundary revision regulations appeared inconsistent with the
approved regulatory program. At subsection (d)(6), Illinois originally
proposed to require public notice 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
(Administrative Record No. IL-1615). During a May 31, 1995, public
meeting (Administrative Record NO. 1654), Illinois and OSM discussed
reducing the comment period from ten days to seen days because of time
restrictions in processing incidental boundary revisions (90 days).
Subsequent to this meeting, Illinois submitted revised language which
reduced the comment period to seven days. Illinois had previously
submitted a letter dated September 14, 1993 (Administrative Record No.
IL-1402), that specified the internal control and management practices
implemented to identify potential patterns of incidental boundary
revision abuse and to prevent abuse.
The Director finds that the proposed amendment to Illinois'
regulations at 62 AC 1774.13(d)(6) to allow public involvement in this
incidental boundary revision review and approved process is consistent
with the Federal regulations at 30 CFR 774.13(d). Furthermore,
Illinois' proposed amendment and its implementation of internal
management control measures for its incidental boundary revision review
and approval process resolves the issues associated with OSM's August
5, 1993, 30 CFR part 732 action.
8. 62 IAC 1778.15 Right for Entry Information
a. Section 1778.15(a). At subsection (a), Illinois is proposing to
remove the requirement for underground coal mining applications to
contain a description of the documents upon which the applicant bases
his or her legal right to enter and begin surface coal mining and
reclamation operations in the shadow area, including the right to
subside within the shadow area. Right of entry information would still
be required to enter and begin surface coal mining and reclamation
operations in the permit area. The language in the revised provision is
substantively identical to the counterpart Federal provision at 30 CFR
778.15(a), which requires such a description only for the permit area.
On April 5, 1983 (48 FR 14814), OSM revised the definition of ``permit
area'' and associated terms to exclude areas overlying underground
workings (shadow area). Therefore, the Director finds 62 IAC 177815(a),
as revised, is no less effective than the counterpart Federal
regulation.
b. Section 1778.15(e). At subsection (e), Illinois is proposing to
clarify that underground mining applications in which the applicant
claims to have valid existing rights to conduct planned subsidence
operations within an area where mining is prohibited or limited,
contain the necessary information and meet the requirements of 62 IAC
1778.16. (Relationship to Areas Designed Unsuitable for Mining) and 62
IAC 1761.12 (Procedures for determining whether mining operations are
limited or prohibited). The existing provision specified this
information for applications to conduct surface coal mining operations
only. The Federal regulations at 30 CFR 778.15 pertaining to right of
entry information contain no comparable requirement. However, the
proposed additional requirement at 62 IAC 1778.15(e) is not
inconsistent with the Federal regulation provisions at 30 CFR 761.12
pertaining to procedures for determining whether mining operations are
limited or prohibited, Sec. 778.16 pertaining to the proposed permit
area relationship to areas designed unsuitable for mining, or
Sec. 784.20 pertaining to the requirement for an underground mining
application to contain a substance control plan. Therefore the Director
finds that the revised provision at subsection (e) does not render the
Illinois regulations at 62 IAC 1778.15 less effective than the
counterpart Federal regulations at 30 CFR 778.15, and he is approving
it.
c. Section 1778.15(f). Illinois is proposing to add new subsection
(f) to require applications for underground mining area (shadow area)
to contain a notarized statement by a responsible official of the
applicant attesting that all necessary mining rights, including the
right to subside, if applicable, have been or will be obtained prior to
mining. The Federal regulations at 30 CFR 778.15 pertaining to right of
entry information contain no comparable requirements for underground
mining shadow area. However, the proposed requirements at 62 IAC
1778.15(f) are not inconsistent with the Federal regulation provisions
at 30 CFR 78.10 pertaining to the requirement for subsidence control
plans for undergrounds mining applications. Therefore, the Director
finds that the new provision at subsection (f) does not render the
Illinois regulations at 62 IAC 1778.15 less effective than the
counterpart Federal regulations at 30 CFR 778.18, and he is approving
it.
9. 62 IAC 1780.23(a)(3) and 62 IAC 1784.15(a)(3) Reclamation Plan:
Premining Information
Because the cited regulations governing surface mining permit
application requirements at 62 IAC 1780.23(a) are identical to
counterpart regulations governing underground mining permit application
requirements at 62 IAC 1784.15(a), the discussion of changes are
consolidated.
Illinois is proposing to add new subsection (a)(3) at 62 IAC
1780.23 and 1784,15. This is a recodification of the provisions deleted
from existing 62 IAC 1779.25(a)(11)(D) for surface mines and 1783.25
(a)(11)(D) for underground mines with one minor exception. The
recodified provisions pertain to a requirement for a premining soils
map or contoured aerial photo of the proposed permit area. Both the
current provisions and the recodified provisions, as originally
proposed (Administrative Record No. IL-1663), require ``a solid map of
medium intensity'' to be submitted with the permit application, while
the revised recodified provisions require ``an intensive soil map'' to
be submitted. This change in language was proposed because of a comment
from the Natural Resources Conservation Service, during the State's own
rulemaking process, that the terminology ``medium intensity'' was not
consistent with the terminology of the National Cooperative Soil Survey
for the State of Illinois. There are no Federal counterpart provisions.
However, the Director finds that the addition of these previously
approved requirements, including the change in terminology at 62 IAC
1780.23(a)(3) and 1784.15(a)(3), is not inconsistent with the Federal
regulations.
10. 63 IAC 1785.17(a) Prime Farmlands
In subsection (1)(1), Illinois is proposing to delete the following
language: ``Nothing in this Section shall
[[Page 26806]]
apply to any permit issued period 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.'' Illinois also proposed to delete existing subsections (a)(5)
and (a)(6) pertaining to an acreage limitation on the amount of
exempted prime farmland and (a)(7)(B) pertaining to a preliminary
exemption review. Illinois proposed to redesignate existing subsection
(a)(1) to (a)(2)(A); (a)(2) to (a)(2)(B); (a)(3) to (a)(2)(C); (a)(4)
to (a)(3); and (a)(7)(A) to (a)(4).
The Federal regulations do not contain counterpart provisions to
the deleted language in subsections (a)(1), (a)(5), (a)(6), and
(a)(7)(B). The proposed revisions at 62 IAC 1785.17(a) render Illinois'
regulation requirements substantively identical to the counterpart
Federal regulation requirements at 30 CFR 785.17(a) with one exception.
At redesignated subsection (a)(4), Illinois retained an additional
requirements for a scale map of the area proposed to be exempted.
Therefore, the Director finds the revised provisions of 62 IAC
1785.17(a) are no less effective than the Federal regulation provisions
at 30 CFR 785.17(a).
11. 63 IAC 1785.23 Minor Underground Mine Facilities Not at or
Adjacent to the Processing or Preparation Facility or Area
Illinois originally adopted section 1785.23 to take into account
the distinct differences between surface and underground mining. This
category of facilities, which includes air shaft, fan and ventilation
buildings, small support buildings or sheds, access power holes, and
other small structures and associated roads, would be subject to an
abbreviated permit application and review period on the basis that
these types of structures have a very minimal impact on the land and
the environment. There is no Federal counterpart to these previously
approved provisions. In this amendment, Illinois proposed to clarify
the public notice and opportunity to comment provisions at subsection
(d) by revising paragraph (3) to require written comments from persons
with an interest which is or may be adversely affected be filed within
the 30-day public comment period and by revising paragraph (4) to
require the Interagency Committee to submit review comments within 30
days of the date of receipt of the application. A proposed 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, rather than 10 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
Illinois regulations dealing with approval and denial of permit
applications, and its final action. Subsection (g)(2) is proposed to be
revised by correcting the administrative and judicial review regulation
citation.
While there are no direct Federal counterparts to these proposed
revisions, the Director finds that the proposed revisions to 62 IAC
1785.23 will enhance the public participation and review process
provisions for a minor underground mine facility permit application and
that the proposed revisions are not inconsistent with the public
participation and review provisions of section 510(a) of SMCRA and 30
CFR 773.13 and 773.15(a) of the Federal regulations.
12. 62 IAC 1795 Small Operator Assistance Program
On November 5, 1990, and October 24, 1992, the President signed
into law the Omnibus Budget Reconciliation Act of 1990, Public Law 101-
508 and the Energy Policy Act of 1992, Public Law 102-486,
respectively. Included in these laws were amendments to the Small
Operator Assistance Program (SOAP) authorized at section 507(c) of
SMCRA. On May 31, 1994 (59 FR 28136), OSM published a final rule to
amend the Federal regulations at 30 CFR part 795 to reflect these
amendments.
In this amendment, Illinois proposed changes to its regulations to
be consistent with and incorporate the additional flexibility afforded
by the revised provisions of SMCRA and the Federal regulations.
Illinois had previously proposed enabling statutory revisions
pertaining to its SOAP at 225 ILCS 720/2.02 of the Illinois Surface
Coal Mining Land Conservation and Reclamation Act (State Act), and
these revisions were approved by OSM on November 21, 1994 (59 FR
59918). The Illinois SOAP regulations that contain revised provisions
substantively identical to the counterpart Federal regulations are
noted in finding B.1., and those that contain revised provisions that
are not substantively identical to the counterpart Federal regulations
are discussed below.
a. Section 1795.1 Scope and Purpose
Illinois proposed to amend the purpose statement at subsection (b)
to reference the new and enhanced technical permitting services that
can be provided to eligible operators under its SOAP program. Although
the purpose statement in the counterpart Federal regulation at 30 CFR
795.1 was not changed to reflect these new and enhanced technical
permitting services, the Federal regulation at 30 CFR 795.9(b) does
list the specific technical services authorized for the SOAP by the
Energy Policy Act of 1992. Therefore, the Director finds that the
revised purpose statement at 62 IAC 1795.1 is no less effective than
the counterpart Federal regulation purpose statement at 30 CFR 795.1.
b. Section 1795.9 Program Services and Data Requirements
At 62 IAC 1795.9(b)(6), Illinois proposed substantively identical
language to that contained in the counterpart Federal regulation at 30
CFR 795.9(b)(6), including the listing of its counterpart regulation
citations at 62 IAC 1780.16 and 1784.21, but also authorized the
collection of information and production of plans for the information
required under its regulations at 62 IAC 1779.19 and 1783.19. Sections
1779.19 for surface mines and 1783.19 for underground mines require a
permit application to contain a map or aerial photograph that
delineates existing vegetative types and a description of the plant
communities within the proposed permit areas that include sufficient
adjacent areas to allow evaluation of vegetation as important habitat
for fish and wildlife for those species of fish and wildlife identified
under 62 IAC 1780.16 and 1784.21, respectively. The Federal regulation
at 30 CFR 795.9(b)(6) authorizes the collection of site-specific
resources information and production of protection and enhancement
plans for fish and wildlife habitats required by 30 CFR 780.16 and
784.21 and information and plans for any other environmental values
required by the regulatory authority under SMCRA.
Since the counterpart Federal regulation at 30 CFR 795.9(b)(6)
allows a regulatory authority to authorize assistance for the
collection of information and production of plans for any other
environmental value required under SMCRA, the Director finds the
revised provisions of 62 IAC 1795.9(b)(6) are no less effective than
the Federal regulation provisions.
[[Page 26807]]
c. Section 1795.12 Applicant Liability
At 62 IAC 1795.12(a)(3), Illinois proposed language which is
substantively identical to the language in the Federal regulation at 30
CFR 795.12(a)(3) with the following exceptions. Illinois is requiring
reimbursement if the ``original permittee's and transferee's'' total
actual and attributed production exceeds 300,000 tons during the
specified 12-month period, while the Federal regulation requires
reimbursement if the ``transferee's'' total actual and attributed
production exceeds 300,000 tons during the specified 12-month period.
Illinois further clarified its requirement by proposing the following
additional language. ``If the permit is transferred during the twelve
(12) month period immediately following the permit issuance date, the
determination of adherence to the twelve (12) month-300,000 tons limit
shall be performed by combining the actual and attributed production of
both parties for the twelve (12) month period immediately following the
date of original permit issuance.'' Both the Illinois and Federal
regulations contain the provision that holds the applicant and its
successor jointly and severally obligated to reimburse the regulatory
authority. The Director finds that since the attributed tonnage in
Illinois' proposed revision does not exceed the 300,000 ton limit for
the same time period specified in the Federal regulation, the revised
regulation at 62 IAC 1795.12(a)(3) is no less effective than the
counterpart Federal regulation.
At 62 IAC 1795.12(b), Illinois proposed to delete its definition of
good faith. There is no Federal counterpart to this definition.
Therefore, the Director finds this deletion is not inconsistent with
the Federal regulations.
13. 62 IAC 1800 Bonding and Insurance Requirements for Surface Coal
Mining and Reclamation Operations
a. Section 1800.5 Definitions
Illinois proposed to revise subsection (b)(4) to allow acceptance
of irrevocable letters of credit from banks organized or authorized in
other states and from banks organized or authorized in the United
States by national charter rather than from only those organized or
authorized to transact business in Illinois. Illinois is requiring a
confirming bank be designated with an office in Illinois that is
authorized to accept, negotiate, and pay the letter upon presentment in
Illinois if the bank does not have an office for collection in
Illinois. This is consistent with the Federal regulation at 30 CFR
800.5(b)(4) which requires the banks to be organized or authorized to
transact business in the United States. Therefore, the Director finds
the revised regulation at 62 IAC 1800.5(b)(4) is no less effective than
the counterpart Federal regulation.
b. Section 1800.20 Surety Bonds
Illinois is proposing to remove subsections (b)(2) through (b)(5),
which contained surety bond conditions. The counterpart Federal
regulation at 30 CFR 800.20(b) does not contain the provisions proposed
for removal. Therefore, the Director finds the removal of these
provisions is not inconsistent with the Federal regulations.
c. Section 1800.21 Collateral Bonds
Illinois proposed to revise subsection (b)(1) to clarify that
irrevocable letters of credit may be issued by banks organized or
authorized to do business in Illinois, in another state of the United
States or in the United States by national charter. Illinois is
requiring a confirming bank be designated with an office in Illinois
that is authorized to accept, negotiate, and pay the letter upon
presentment in Illinois if the issuing bank does not have an office for
collection in Illinois. This is consistent with the Federal regulation
at 30 CFR 800.21(b)(1) which requires the banks issuing letters of
credit to be organized or authorized to transact business in the United
States. Therefore, the Director finds the revised regulation at 62 IAC
1800.21(b)(1) is no less effective than the counterpart Federal
regulation.
14. 62 IAC 1816 and 62 IAC 1817 Permanent Program Performance
Standards for Surface and Underground Mining Activities
The Illinois permanent program performance standard regulations for
surface mining activities at 62 IAC 1816 and underground mining
activities at 62 IAC 1817 that contain revised provisions substantively
identical to the counterpart Federal regulations are noted in finding
B.1., and those that contain revised provisions that are not
substantively identical to the counterpart Federal regulations are
discussed below. Since most of the surface mining and underground
mining regulations are identical, the revisions are being combined for
discussion purposes, unless otherwise noted.
a. Sections 1816.22(b) and 1817.22(b) Topsoil and Subsoil: Substitutes
and Supplements
Illinois is proposing to remove subsection (b)(2) to eliminate the
requirement that topsoil plans for substitutes or supplements be
considered a significant revision unless specified circumstances apply.
Existing subsection (b)(1) is redesignated subsection (b) because of
the removal. The counterpart Federal regulations at 30 CFR 816.22(b)
and 817.22(b) do not contain the removed language, and the revised
provisions in 62 IAC 1816.22(b) and 1817.22(b) are substantively
identical to these Federal counterparts. Therefore, the Director finds
the removal of subsection (b)(2) will not render Illinois' regulations
at 62 IAC 1816.22(b) and 1817.22(b) less effective than the Federal
counterpart regulations.
b. Sections 1816.41(c) and 1817.41(c) Hydrologic Balance Protection:
Ground Water Monitoring
At 62 IAC 1816.41(c)(2) and 1817.41(c)(2), Illinois proposed to
revise subsection (c)(2) by specifying that the ground water monitoring
reports, that are required to be submitted every three months, shall be
submitted by the first day of the second month following the reporting
period, unless the Department specifies an alternative reporting
schedule. The Federal counterpart regulations at 30 CFR 816.41(c)(2)
and 817.41(c)(2) require reports to be submitted every three months or
more frequently as prescribed by the regulatory authority without
specifying exact reporting schedules. Since Illinois has retained its
requirement that ground water monitoring data be submitted every three
months or more frequently if necessary, the Director finds the addition
of a specific reporting schedule will not render the Illinois
regulations at 62 IAC 1816.41(c)(2) and 1817.41(c)(2) less effective
than the counterpart Federal regulations.
c. Section 1816.41(e) and 1817.41(e) Hydrologic Balance Protection:
Surface Water Monitoring
Illinois proposed to revise subsection (e)(2) by removing the
requirement to send NPDES reports to the Department concurrently with
those sent to 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. The Federal counterpart
regulations at 30 CFR 816.41(e)(2) and 817.41(e)(2) require surface
water monitoring reports to be submitted
[[Page 26808]]
every three months or more frequently as prescribed by the regulatory
authority without specifying exact reporting schedules. Since Illinois
has retained its requirement that surface water monitoring data be
submitted every three months or more frequently if necessary, the
Director finds the addition of a specific reporting schedule for
submitting Illinois' required NPDES report will not render the Illinois
regulations at 62 IAC 1816.41(e)(2) and 1817.41(e)(2) less effective
than the counterpart Federal regulations.
d. Sections 1816.46(e) and 1817.46(e) Hydrologic Balance: Siltation
Structures: Exemptions
Illinois proposed to revise the language in subsection (e) and
incorporate the language from existing subsection (e)(1) to read as
follows: ``Exemptions to the requirements to pass all drainage from
disturbed areas through a siltation structure may be granted if the
disturbed drainage area within the total disturbed area is small . .
.'' Illinois added an additional exemption provision at new subsection
(e)(1) that will allow the use of the alternate sediment control
measures described in Secs. 1816.45(b) and 1817.45(b) instead of
siltation structures in instances where the disturbed drainage area
within the total disturbed area is small and the permittee demonstrates
that siltation structures are not necessary for drainage to meet the
effluent limitations and water quality standards for the receiving
waters. Sections 1816.45 for surface mining activities and 1817.45 for
underground mining activities require that sediment control measures be
designed, constructed, and maintained using the best technology
currently available (BTCA). Furthermore, Illinois stated in the comment
section of its revised amendment submittal dated November 1, 1995
(Administrative Record No. IL-1663), that ``the Department will require
that any alternative sediment control measures be shown to be the best
technology currently available.''
The Federal regulations do not contain a counterpart to the
proposed exemption at 30 CFR 816.46(e)(1) and 817.46(e)(1). However,
the Federal regulations at 30 CFR 816.45(a)(1) and 817.45(a)(1) require
that BTCA be used to ``prevent, to the extent possible, additional
contributions of sediment to streamflow or to runoff outside the permit
area.'' Also, the Federal regulations at 30 CFR 816.46(b)(2) and
817.46(b)(2) which required all surface drainage from a disturbed area
be passed through a siltation structure were remanded by the District
Court in 1985 in In re: Permanent Surface Mining Regulation Litigation
(III), 620 F. Suppl. 1519 (D.D.C. 1985). Subsequently, OSM suspended
these rules on November 20, 1986 (51 FR 41957). The effect of this
suspension is that State regulatory authorities may determine on a case
by case basis what is BTCA rather than requiring, in every situation,
that drainage be passed through siltation structures. The use of BTCA
is required by sections 515(b)(10)(B) and 516(b)(9)(B) of SMCRA. In the
preamble of the 1986 suspension notice (51 FR 41957-41958), OSM stated
that ``in situations where sediment control measures other than
siltation structures are determined as BTCA, the performance standards
of Secs. 816.45 and 817.45 will control.'' The referenced sections are
the Federal counterparts to Illinois regulations at 62 IAC 1816.45 and
1817.45. Therefore, since Illinois requires alternate sediment control
measures be designed, constructed, and maintained using BTCA, the
Director finds the proposed revisions will not render 62 IAC 1816.46(e)
and 1817.46(e) less effective than the Federal regulations for sediment
control for small disturbed drainage areas.
e. Sections 1816.116(a)(2)(B) and 1817.116(a)(2)(B) Revegetation
Standards for Success: Success of Revegetation
The State Act was amended at 225 ILCS 720/3.15 to change the
revegetation responsibility period from five years to two years for
areas eligible for remining consistent with section 515(b)(20)(B) of
SMCRA. At sections 1816.116(a)(2)(B) for surface mining and
1817.116(a)(2)(B) for underground mining, Illinois proposed to
implement this statutory provision by revising the first sentence of
each section to read: ``The period of extended responsibility shall
continue for a period of not less than five (5) full years, except that
on lands eligible for remining, the period of responsibility (until
September 30, 2004) shall be two (2) full years.'' The counterpart
Federal regulations at 30 CFR 816.116(c)(2) and 817.116(c)(2), as
amended on November 27, 1995 (60 FR 58480), require the period of
responsibility for lands eligible for remining included in permits
issued before September 30, 2004, or any renewals thereof, to continue
for a period of not less than two full years. The amended Federal
regulations also require that ``to the extent that the success
standards are established by paragraph (b)(5) of this section, the
lands shall equal or exceed the standards during the growing season of
the last year of the responsibility period.'' Illinois' counterparts to
30 CFR 816.116(b)(5) and 817.116(b)(5) at sections 1816.116 (a)(3)(A)
and 1817.116(a)(3)(A) require remined areas to meet the specified
standards in those sections during the last year of the responsibility
period. Therefore, the Director finds that the revised regulations at
62 IAC 1816.116(a)(2)(B) and 1817.116(a)(2)(B) are no less effective
than the counterpart Federal regulations.
f. Sections 1816.116(a)(2)(F) and 1817.116(a)(2)(F) Revegetation
Standards for Success: Augmentation
(1) Existing provisions at subsection (a)(2)(F)(i), (ii), and (iii)
concerning augmentation requirements for high capability land areas are
proposed to be deleted. Illinois' provisions for high capability lands,
including the provisions proposed for deletion, have no direct Federal
counterparts. Therefore, the Director finds the deletion of these
provisions is not inconsistent with the Federal regulations concerning
revegetation success standards.
(2) Illinois is proposing to add the following augmentation
provision for pasture, hayland, and grazing land at new subsection
(a)(2)(F)(i): ``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.''
Subsection (a)(3)(E) pertains to the revegatation success standards for
pasture, hayland, and grazing land areas. Illinois' proposed provision
would allow augmentation, in the form of deep tillage, without
restarting the period of extended responsibility for revegetation
success and bond liability. The Federal regulations at 30 CFR
816.116(c)(1) and 817.116(c)(1) do not allow augumentation without
restarting the period of extended responsibility. Although the Federal
regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4) allow regulatory
authorities to approve selective husbandry practices without extending
the period of responsibility for revegetation success and bond
liability, they must first obtain approval for the practices from OSM.
The regulatory authorities must provide proof that the proposed
practices are normal husbandry practices within the region for unmined
lands having land uses similar to the approved postmining land use of
the disturbed areas. Illinois has neither proposed nor obtained
approval for use of deep tillage as a normal husbandry practice in
Illinois. Therefore, the Director finds the
[[Page 26809]]
proposed provisions at 62 IAC 1816.116(a)(2)(F)(i) and
1817.116(a)(2)(F)(i) are inconsistent with and less effective than the
Federal regulation requirements at 30 CFR 816.116(c)(1) and
817.116(c)(1), and he is not approving them. Furthermore, he is
requiring Illinois to remove 62 IAC 1816.116(a)(2)(F)(i) and
1817.116(a)(2)(F)(i) from its program.
(3) Illinois proposed to add augmentation provisions for wetlands
at new subsection (a)(2)(F)(ii). A portion of the proposed provisions
identify and clarify those actions which constitute augmentative
practices. Augmentative practices include significant alterations to
the size or character of the watershed, pumping used to maintain water
levels, and applying neutralizing agents, chemical treatments or
fertilizers to the wetland area. The Director finds that the augmented
practices proposed by Illinois that would restart the period of
extended responsibility for successful revegetation and bond liability
on wetlands are not inconsistent with the Federal regulations at 30 CFR
816.116(c)(1) and 817.116(c)(1).
The proposed provisions also identify and clarify those actions
which constitute non-augmentative (normal husbandry) practices and
management techniques for wetland areas. Non-augmentative practices and
management techniques include normal agricultural husbandry practices,
such as routine liming and fertilization, and wetlands managed as
wildlife food plot areas and water management using permanent water
control structures.
On September 3, 1993 (Administrative Record No. IL-1219), OSM
approved Illinois' designation of the agricultural practices described
in the Illinois Agronomy Handbook (Administrative Record No. IL-1192A)
and those practices which are a part of an approved conservation plan
subject to the Food, Agriculture, Conservation and Trade Act of 1990 (7
U.S.C. 1421 et seq.) as normal agricultural husbandry practices for the
State of Illinois. The approved practices include normal routine liming
and fertilization of lands used for the production of food and/or
forage. Therefore, in the State of Illinois, these approved
agricultural practices would be used for the management of wildlife
food plot areas.
Illinois in its submission dated February 3, 1995 (Administrative
Record No. IL-1615), addresses the use of permanent water control
structures as a normal husbandry practice to manage water levels in
wetlands. Illinois supports this designation by citing two publications
which indicate that this type of water level management is necessary to
create suitable aerobic/anaerobic conditions for the germination of
hyrophytic plants.
As shown above, the information and literature contained in the
Illinois administrative record provide adequate documentation that
agricultural techniques, such as routine liming and fertilization, are
normal husbandry practices in the State of Illinois for lands used in
the production of food and/or forage and that the use of permanent
water control structures for managing the water levels of wetlands is a
normal husbandry practice. These proposed practices should assist in
ensuring the effectiveness of fish and wildlife management areas by
providing regulation and guidelines for the enhancement of wetland and
riparian vegetation areas as required by 30 CFR 816.97(f) and 817.97(f)
of the Federal regulations. The Federal regulations at 30 CFR
816.116(c)(4) and 817.116(c)(4) allow the regulatory authority to
approve selective husbandry practices with prior approval from OSM.
Therefore, the Director finds the proposed regulations at new 62 IAC
1816.116(a)(2)(f)(ii) and 1817.116(a)(2)(F)(ii) are no less effective
than the Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4).
g. Sections 1816.116(a)(3)(E) and 1817.116(a)(3)(E) Ground Cover and
Production for Pasture, Hayland, and Grazing Land
In response to the required amendment at 30 CFR 913.16(s),
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 counterpart Federal regulations at 30 CFR
816.116(b)(1) and 817.116(b)(1) require that for areas developed for
use as grazing land or pasture land, ground cover and production of
living plants on the revegetated area meet certain success standards
approved by the regulatory authority. With Illinois' proposed revision,
62 IAC 1816.116(a)(3)(E) and 1817.116(a)(3)(E) now contain both ground
cover and production success standards for pasture, hayland, and
grazing land. Therefore, the Director finds the proposed regulation
provisions pertaining to production and ground cover success standards
for pasture, hayland, and grazing land are no less effective than the
counterpart Federal regulations, and he is removing the required
amendment at 30 CFR 913.16(s).
Illinois proposed to revise subsection (a)(3)(E) by removing the
provision that limited the substitution of corn production for hay
production on high capability pasture land to one attempt. The Federal
regulations at 30 CFR 816.116 and 817.116 do not contain specific
standards for high capability pasture land. However, the Federal
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) require that
standards for success include criteria representative of unmined lands
in the area being reclaimed to evaluate the appropriate vegetation
parameters for production. The Illinois administrative record contains
sufficient proof that high capability land is suitable for cropland and
that crop/hay rotations are common practices in cropland areas
surrounding mines (Administrative Record Nos. IL-1164 and IL-1192A).
Therefore, since corn production standards are generally accepted to be
more difficult to meet than hay production standards, the Director
finds that the removal of this limitation provision will not render 62
IAC 1816.116(a)(3)(E) and 1817.116(a)(3)(E) less effective than the
Federal regulations at 30 CFR 816.116(b)(1) and 817.116(b)(1).
Illinois also proposed to revise subsection (a)(3)(E) 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 in accordance with its regulations at 62 IAC
1816.116(a)(2)(C) and 1817.116(a)(2)(C). The Illinois regulations at
subsection (a)(2)(C) contain provisions pertaining to normal husbandry
practices. In the amendment submittal dated February 3, 1995
(Administrative Record No. IL-1615), Illinois noted that it has
required limited capability land to be returned to a land use other
than cropland as a normal practice. However, Illinois explained that
some operators have reclaimed limited capability land to a higher
quality when all prime and high capability land acreage obligations
have been met. The capabilities described in the Illinois program
include limited capability (non-cropland capable land), high capability
(cropland capable land), and prime farmland (cropland capable land).
Therefore, the Director interprets the reference Illinois made to ``a
higher quality'' to mean that the limited capability land had been
reclaimed to either prime farmland or high capability standards. To the
extend that Illinois will consider the quality of the soils when making
its determination and will restrict its approval to limited capability
[[Page 26810]]
lands that are reclaimed to a higher quality, the Director finds the
proposed provision does not render the Illinois regulations less
effective than the Federal regulations at 30 CFR 816.116(b)(1) and
817.116(b)(1).
h. Section 1816.116(a)(3)(F) and 1817.116(a)(3)(F) Revegetation
Success Standards for Non-Contiguous Areas Less Than or Equal to Four
Acres
Illinois proposes to add new subsection (a)(3)(F) as follows:
``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 postmining land use at the end of the
responsibility period.''
Although OSM recognizes the practicality to excluding the need to
test for revegetation success for small areas such as signs, boreholes,
powerpoles, and other small and minimally disturbed areas, this
proposal cannot be approved. The provision does not limit the type of
disturbance that could occur on such areas. It does not clarify the
type of demonstration the operator is to make at the end of the
responsibility period to prove that the soil has been returned to its
original capability and to prove that the postmining land use has been
achieved. Illinois' proposed revision would allow bond release without
adequate proof of productivity on disturbed areas of four acres or
less.
In order for OSM to approve this type of proposal, Illinois would
need to provide additional regulatory language which would more closely
correlate the maximum acreage to the types of activities which would
qualify for the exemption. Illinois would also have to provide
additional regulatory language as to what would constitute a
satisfactory demonstration of minimum disturbance, achievement of
original capability, and achievement of postmining land use. Absent
this information, the Director finds that the proposed regulations at
62 IAC 1816.116(a)(3)(F) and 1817.116(a)(3)(F) are less effective than
the Federal regulations at 30 CFR 816.116(a) and 817.116(a), and he is
not approving them. Furthermore, he is requiring Illinois to remove
these regulations from its program.
i. Section 1816.116(a)(4)(A)(ii) Use of the Agricultural Lands
Productivity Formula, Section 1816.Appendix; Fields
Illinois proposed to add the following provision at subsection
(a)(4)(A)(ii): ``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. The small isolated areas shall be managed
and vegetated in the same manner as the representative field.''
This proposal would allow the approval of the success of
revegetation for non-contiguous disturbed areas based on the testing of
a representative field of the same soil capability that had also been
disturbed. The current Illinois program requires that fields of four
acres or less be sampled in their entirety with yields determined by
harvest weight. The Federal regulations at 30 CFR 816/817.116(a)(1)
require that revegetation standards for success and statistically valid
sampling techniques for measuring success be utilized by the regulatory
authority and that the sampling techniques for measuring success use a
90 percent statistical confidence interval (i.e., one-sided test with a
0.10 alpha level). The Federal regulation at 30 CFR 823.15(b)(2)
requires that prime farmland soil productivity be measured on a
representative sample or on all of the mined and reclaimed prime
farmland area using the reference crop determined under paragraph
(b)(6) of this section. It also requires that a statistically valid
sampling techniques at a 90 percent or greater confidence level be used
as approved by the regulatory authority in consultation with the U.S.
Natural Resources Conservation Service.
Illinois has not provided sufficient regulatory language as to how
the determination that a field is representative of the small areas to
be exempt from testing would be made and what information would be
needed for a satisfactory demonstration of representation. Therefore,
the Director finds that the proposed provisions at 62 IAC
1816.116(a)(4)(A)(ii) are less effective than the Federal regulations
at 30 CFR 823.15, 816.116, and 817.116, and he is not approving them.
Furthermore, he is requiring Illinois to remove these regulations from
its program.
j. Section 1816.116(a)(4)(D) Use of the Agricultural Lands
Productivity Formula, Section 1816.Appendix; Crops
Illinois is proposing to add oat crops to the list of crops that
may be grown on prime farmland and other cropland areas to prove
productivity. The Federal regulations at 30 CFR 823.15(b)(6) pertaining
to prime farmland requires reference crops for proving soil
productively be selected from the crops most commonly produced on the
surrounding prime farmland. The Federal regulations at 30 CFR
816.116(a) and 817.116(a) pertaining to other cropland areas require
the use of criteria representative of unmined lands in the area being
reclaimed. Proof exists in the Illinois administrative record that oats
is a commonly grown crop in Illinois and that it is one of the crops
that is rotated with corn on unmined cropland areas. This use is
described in a section of the Illinois Agronomy Handbook concerning
crop rotations. Therefore, the Director finds the revised regulation
requirement is not inconsistent with the Federal regulations.
k. Sections 1816.116(a)(5) and 1817.116(a)(5) Wetland Revegetation
Success Standards
Illinois proposed to add provisions at subsection (a)(5)(A) that
specify the criteria and sampling procedures in the U.S. Army Corps of
Engineers Wetlands Delineation Manual which will be used to determine
wetland revegetation success. New subsection (a)(5)(B) further requires
that areas designed to support vegetation in the approved plan have a
minimum areal coverage of 30 percent. The testing procedures in
Sections 1816.117(d) (1) through (3) and 1817.117(d) (1) through (3)
shall be used to evaluate the extent of cover in conjunction with other
specified procedures. In OSM's letter to the State dated April 28, 1995
(Administrative Record No. IL-1649), Illinois was asked to provide a
statement and technical support 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 816.116(a)(3) and 817.116(a)(3). As
technical support for the 30 percent standard, Illinois provided a copy
of a Michigan State University study (Journal of Wildlife Management
45(1):1-15) that compared dabbling duck and aquatic macroinvertebrate
responses to manipulated wetlands under 30:70, 50:50, and 70:30 percent
of cover to percent of water treatments and 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 percent to 70 percent levels (Administrative Record Nos. IL-1650B
and IL-1653). Illinois provided a
[[Page 26811]]
statement that indicated the Michigan State University study determined
that the 50:50 treatment was the most desirable vegetative cover.
However, with the recognition that the percent of vegetative cover
increases with time as open water decreases during wetlands
development, Illinois determined use of the 30:70 as a minimum standard
would provide more incentive for the industry to create wetlands.
There are no direct counterpart Federal regulations at 30 CFR
816.116 and 817.116 for determining wetland revegetation success.
However, OSM's internal policy and procedures for construction of
wetlands to supplement and enhance fish and wildlife habitat as a
postmining land use (Directives System No. TSR-14, Transmittal Number
828) provide that wetland areas must meet the Federal definition of a
wetland as defined by the U.S. Army Corps of Engineers Wetlands
Delineation Manual prior to bond release. Illinois' requirement that
the wetland vegetation criteria in the U.S. Army Corps of Engineers
Wetlands Delineation Manual be achieved as proof of productivity should
assure that the wetland areas meet the Federal definition of a wetland
as defined by the Corps. Therefore, the Director finds that 62 IAC
1816.116(a)(5) and 1817.116(a)(5) are no less effective than the
Federal regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3) for areas
to be developed for fish and wildlife habitat.
l. Sections 1816.117(a)(1) and 1817.117(a)(1) Revegetation: Tree and
Shrub Vegetation; Lands Eligible for Remining
Illinois proposed to revise subsection (a)(1) by requiring the
period of responsibility (until September 30, 2004) be two full years
for trees and shrubs on lands eligible for remining. Also, until
September 30, 2004, trees and shrubs planted on lands eligible for
remining need not have been in place for three years prior to bond
release and shall not be counted in determining success during the same
calendar year in which they were planted.
The counterpart Federal regulations at 30 CFR 816.116(b)(3)(ii) and
817.116(b)(3)(ii) do not contain the proposed provisions. However, the
Federal regulations at 30 CFR 816.116(c)(2)(ii) and 817.116(c)(2)(ii)
were amended November 27, 1995 (60 FR 58480), to require a period of
responsibility of two full years for lands eligible for remining
included in permits issued before September 30, 2004, or any renewals
thereof. This responsibility period requirement would apply to all
applicable postmining land uses, including areas to be developed for
fish and wildlife habitat. Also, a two year responsibility period
effectively eliminates the requirement that trees and shrubs be left in
place for three years. Therefore, the Director finds the Illinois
regulations at 62 IAC 1816.117(a)(1) and 1871.117(a)(1), as revised,
are no less effective than the counterpart Federal regulations.
m. Sections 1816.117(a)(3) and 1817.117(a)(3) Revegetation: Tree and
Shrub Vegetation; Erosion Control Structures
Illinois proposed to amend subsection (a)(3) to clarify that
erosion control structures, including pond embankments within an
approved land use of fish and wildlife, forest, or recreation shall not
require the planting of trees and shrubs. A herbaceous ground cover
will be required, and the ground cover requirements of subsection
(a)(2) are still applicable to erosion control structures. Illinois
determined that tree and shrub growth on embankments is detrimental to
their maintenance, and submitted an Illinois Department of
Transportation (IDOT) booklet entitled ``Guidelines and Forms for
Inspection of Illinois Dams'' to support this determination
(Administrative Record No. IL-1617). The Director finds that prudent
engineering practices dictate that large rooted plants should not be
planted on erosion control structures because they can cause
instability. Illinois has provided adequate support for its exemption
of erosion control structures from the planting of trees and shrubs for
the State of Illinois. Therefore, Illinois' proposed regulation
provisions at 62 IAC 1816.117(a)(3) and 1817.117(a)(3) are not
inconsistent with the Federal regulations at 30 CFR 816.116(b)(3)(ii)
and 817.116(b)(3)(ii).
n. Sections 1816.117(b) and 1817.117(b) Revegetation: Tree and shrub
Vegetation; Woody Plants
Illinois proposed to revise subsection (b) to clarify that planting
arrangements such as hedgerows, border plantings, clump plantings,
shelterbelts, and open herbaceous areas 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. The Federal
regulations at 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i) require
minimum stocking and planting arrangements be specified by the
regulatory authority on the basis of local and regional conditions.
Therefore, the Director finds that the proposed revision will not
render Illinois' regulations at 62 IAC 1816.117(b) and 1817.117(b)
inconsistent with the Federal regulations.
o. Sections 1816.117(c)(1),(c)(7) and 1817.117(c)(1),(c)(7)
Revegetation: Tree and Shrub Vegetation; Sampling Procedure
Illinois proposed to revise subsection (c)(1) to establish a field
system for trees and shrubs similar to that already adopted for
agricultural areas by replacing the word ``area'' with the word
``field.'' This subsection 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 its permit revision regulations at 62 IAC 1774.13. At
subsection (c)(7), Illinois proposed to remove the reference to
``Illinois Department of Conservation'' and change the word ``conduct''
to ``administer.'' The Federal regulations at 30 CFR 816.116(a)(1) and
817.116(a)(1) require that the regulatory authority select
statistically valid sampling techniques for measuring success and
include them in its program. The Director finds that the revised
provisions at 62 IAC 1816.117 (c)(1) and (c)(7) 1817.117 (c)(1) and
(c)(7) will not render Illinois' previously approved sampling
procedures for measuring tree and shrub vegetation less effective than
the Federal regulations.
15. 62IAC 1817.121(c)(3) Subsidence Control; Water Replacement
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.
The proposed language is consistent with section 720(a)(2) of
SMCRA, which was added October 24, 1992, by the Energy Policy Act. It
is also consistent with the counterpart Federal regulation provision at
30 CFR 817.41(j), with one exception. The Federal provision specifies
``underground mining activities conducted after October 24, 1992.''
Whereas the Illinois provision will apply to activities conducted after
adoption. However, by letter dated April 25, 1995 (Administrative
Record No. IL-1533), Illinois indicated that its current regulations
codified at 62 IAC 1817.121(c)(2) require repair or
[[Page 26812]]
compensation for subsidence-related material damage, including damage
from activities conducted after October 24, 1992, to any structures or
facilities, and this would include repair of or compensation for damage
to water delivery systems such as well, cisterns, and water lines.
Furthermore, on July 28, 1995 (60 FR 38677), OSM announced its decision
on initial enforcement of the water replacement requirements for
Illinois for activities conducted after October 24, 1992. It was
decided that initial enforcement of the water replacement requirements
in Illinois is not reasonably likely to be required and that
implementation will be accomplished through the State program amendment
process. Therefore, the Director finds 62 IAC 1817.121(c)(3) is no less
effective than the Federal counterpart provision for subsidence-related
water replacement.
However, it should be noted that the July 28, 1995, decision
addressed only the initial enforcement schemes for water replacement
(30 CFR 817.41(j)) and subsidence damage repair/compensation (30 CFR
817.121(c)(2)) provided for under section 720 of SMCRA, as amended by
the Energy Policy Act of 1992, Pub. L. 102-486, 106 Stat. 2776 (1992).
In addition to the basic water supply replacement requirement and the
related subsidence damage repair requirement, the implementing Federal
regulations that became effective March 31, 1995, contain other related
supporting and permitting provisions. OSM anticipates that these other
requirements will become effective in the same way as other revisions
to the permanent program regulations; i.e., in primacy states such as
Illinois, upon adoption of counterpart State regulatory program
provisions (60 FR 16722). This process will be initiated separately by
OSM under the provisions of 30 CFR 732.17(d).
16. 62 IAC 1816.151 and 1817.151 Primary Roads
At subsection (a), Illinois proposes to specify that the
certification of the construction or reconstruction of primary roads
shall be submitted within 30 days after completion of construction.
Illinois defines ``completion of construction'' to mean that the road
is being used for its intended purpose as determined by the Department.
The counterpart Federal regulations at 30 CFR 816.151 and 817.151 do
not set a time for submittal of primary road construction
certifications or define ``completion of construction.'' However, the
Director finds that the proposed revisions to 62 IAC 1816.151(a) and
1817.151(a) clarify the existing provisions and do not render the
Illinois regulations less effective than the Federal counterparts.
17. 62 IAC 1816.190 (a), (b) and (c) and 1817.190 (a), (b) and (c)
Affected Acreage Map
At subsection (a), Illinois proposed to require submittal of
reports and maps of affected areas to the Department only by removing
the phrase ``and to the county clerk.'' At subsection (b), Illinois is
requiring the permittee to submit two copies of the reports and maps,
plus an additional copy for each county in which the permit is located,
which the Department will then forward to the county clerks. Illinois
is also requiring that one of the copies contain the original signature
of a company official. Also, statutory citations are being updated in
subsections (b) and (c). There are no direct counterpart Federal
regulations pertaining to an annual submittal of affected acreage
reports and maps. However, the Director finds the proposed revisions to
62 IAC 1816.190 (a), (b), and (c) and 1817.190 (a), (b), and (c) would
clarify and simplify the administration of Illinois' requirements for
these annual submittals and would not render the Illinois regulations
inconsistent with SMCRA or the Federal regulations.
18. 62 IAC 1816. Appendix A Agricultural Lands Productivity Formula--
Permit Specifics Yield Standard
a. Illinois proposed revisions to the two existing paragraphs and
reorganized them into subsections (a) and (b), respectively. Language
is proposed at redesignated subsection (a) to clarify that yield
standards must be calculated for each capability class in the disturbed
area in the pit and that high capability and limited capability lands
will be calculated in a manner similar to prime farmland. At
redesignated subsections (a) and (b), Illinois proposed to replace the
terms ``permit area and/or mining permit area'' with the term ``pit.''
Illinois has proposed to substitute the term ``pit'' for ``permit
area'' in determining specific crop yield standards. The change
proposed would alter the specific land area that would be included in
the computation of the target yield utilizing the Illinois Agricultural
Lands Productivity Formula (Illinois Productivity Formula). The
counterpart Federal regulation for the establishment of yield standards
on prime farmland is 30 CFR 823.15(b)(5). It requires that restoration
of soil productivity shall be considered achieved when the average
yield during the measurement period equals or exceeds the average yield
of the reference crop established for the same period for nonmined
soils of the same or similar texture or slope phase of the soil series
in the surrounding area under equivalent management practices.
OSM initially had a major concern with the proposed revisions
pertaining to how the ``pit'' area was to be utilized in calculations
of the Illinois Productivity Formula. This concern was raised in public
meetings held on May 31 and August 16, 1995. During these meetings
representatives of Illinois explained how the area of the ``pit'' would
be determined in a variety of circumstances. During the August 16,
1995, public meeting, Illinois stated that it would submit further
clarification to OSM. Based on the State's clarification in the public
meetings held on May 31 and August 16, 1995 (Administrative Record Nos.
IL-1654 and IL-1662), and the subsequent submittal to OSM of additional
clarification, including maps defining pit areas (Administrative Record
No. IL-1663), the Director finds that the proposed revisions are no
less effective than the Federal regulations and is approving the
revisions.
This approval is based upon Illinois defining the use of the term
``pit'' in the following circumstances:
(1) Single pit within a single permit--The pit area is the same as
the permit area.
(2) Multiple pits within a single permit--Each pit area will be
clearly marked on the permit map that has been subjected to public
review prior to approval.
(3) Single pit within several permits that have been consolidated
into a single permit--The pit area will be the same as the area of the
consolidated permit.
(4) Multiple pits within several permits that are consolidated into
one permit--Each pit area will be clearly marked on the consolidated
permit map that has been subjected to public review prior to approval.
In all circumstances, Illinois must assure that the crop yield
standard is representative of the average yield of the reference crop
established for the same period for nonmined soils of the same or
similar texture or slope phase of the soil series in the surrounding
area under equivalent management practices.
b. New subsection (c) was added and reads 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.
[[Page 26813]]
Approved significant revisions after permanent cessation of mining
shall cause the targets to be recalculated and applied to
productivity fields tested after the recalculation.
This proposal provides that after mining has ceased in any pit, the
yield standard would be recalculated for the pit utilizing only those
soils actually disturbed. These recalculated yield standards would be
applicable only to those areas not already tested. Again, the standard
to which OSM must compare the change is the Federal requirement that
the yield standard be developed from lands representative of the lands
mined and reclaimed. This proposal should improve the accuracy of the
calculated yield standard as it represents the soils actually disturbed
by mining. Therefore, the Director finds that the proposed revisions
are no less effective than the Federal regulations.
19. 62 IAC 1816. Appendix A Agricultural Lands Productivity Formula;
Sampling Method
Illinois proposed a revision to the sampling method section of its
productivity formula to require the Department and the Illinois
Department of Agriculture to jointly request the operator to verify
yields by harvest weight for specified reasons, including but not
limited to verification of random sampling results and availability of
sample enumerators. Prior to this revision, only the Department could
make this request. However, as referenced in other sections, the
Illinois Department of Agriculture works with the Department in
implementing the Illinois Productivity Formula. Therefore, the Director
finds the revision is not inconsistent with the Federal regulations.
20. 62 IAC 1825.14 High Capability Lands: Soil Replacement
Illinois added new subsection (e)(1)(E) to specify that excessive
compaction is also indicated by other diagnostic methods approved by
the Department, in consultation with the Illinois Department of
Agriculture and the U.S. Department of Agriculture, Natural Resources
Conservation Service. 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.
There are no direct counterpart Federal regulations to Illinois'
regulations for high capability lands at 62 IAC 1825. However, the
Director finds that the revisions proposed at 62 IAC 1825.14(e)
pertaining to soil compaction alleviation do not adversely affect other
aspects of the Illinois program and are not inconsistent with the
topsoil and subsoil provisions of the Federal regulations at 30 CFR
816.22 and 817.22.
21. 62 IAC 1840.17 Review of Decision Not to Inspect or Enforce
Illinois proposed to revise subsection (a) by allowing affected
persons to request from the ``Director or his or her designee'' a
review of a decision not to inspect or enforce. The Director finds that
the proposed language at 62 IAC 1840.17(a) is consistent with the
counterpart Federal regulation language at 30 CFR 842.15(a).
Illinois also proposed to revise subsection (a) by adding a new
provision that requires the request for review to be submitted within
30 days from the date the citizen is notified of the decision and that
specifies failure to file a request for informal review within this
time period would result in a waiver of the right to such review.
Although the counterpart Federal regulation at 30 CFR 842.15(a) does
not include a deadline for filing a review request, the Illinois
requirement at 62 IAC 1840.17(a) that such requests be filed within 30
days of the State's decision is not unreasonable. Using this approach,
Illinois can ensure administrative efficiency by setting a firm
deadline for appeals, without undue prejudice to the interest of
citizens who may be adversely affected by the decisions not to inspect
or enforce. Illinois affirmed that persons will be notified of this
requirement via certified mail as part of the decision documents.
Therefore, the Director finds the State's requirement that requests be
filed within a specified time period ensures administrative efficiency
in a manner that is not inconsistent with SMCRA or the Federal
regulations. However, this approval is made with the understanding that
notification of the 30-day time period within which to request, or else
waive, the right to informal review will be included in the notice of
decision not to inspect or enforce and that failure to include the
notification will not limit the right for review.
Subsection (b) is proposed to be amended by changing the reviewing
official for reviews of the authorized representative's decision not to
inspect or enforce from the ``Supervisor of the Land Reclamation
Division'' to the ``Director or his or her designee.'' This change is
in line with a recent reorganization of the Illinois regulatory
authority into a Department of Natural Resources, and it elevates the
review level to the Director of the Department of Natural Resources.
The Director finds the revised language at 62 IAC 1840.17(b) is
consistent with the counterpart Federal regulation language at 30 CFR
842.15(b).
Subsection (c) is proposed to be amended to reference 62 IAC 1847.3
of the Illinois regulations for formal review, rather than Section 8.07
of the State Act. The Director finds that 62 IAC 1847.3 is the correct
citation since this section contains the State's procedures for seeking
administrative and judicial review of formal decisions not to inspect
or enforce under 62 IAC 1840.17.
22. 62 IAC 1843.13 Suspension or Revocation of Permits
At existing subsections (a)(1), (a)(3) and (b) language was deleted
in order to eliminate the mandatory determination that a pattern of
violations exists under specified conditions and to eliminate an
exception which allowed Illinois to decline to issue a show cause order
if it determined that to issue the order would be ``demonstrably
unjust.'' Existing subsections (c), (d), (e), and (f) were redesignated
as (b), (c), (d), and (e), respectively. The Director finds that the
deletion of the mandatory determination and exception provision
language at 62 IAC 1843.13 (a)(1), (a)(3), and (b) is consistent with
changes made to the counterpart Federal regulations at 30 CFR 843.13 on
August 16, 1982 (47 FR 35630).
23 62 IAC 1845.12 When Penalty Will Be Assessed
As required by 30 CFR 913.16(t), Illinois proposed to amend
subsection (d) by adding language which assures that the Department
will consider the factors set forth in Section 1845.13 in determining
whether to assess a penalty below $1,100. Illinois also proposed to
codify its long-standing policy of assessing a penalty when a violation
is the permittee's second or more related violation within a 12-month
period. The director finds that the proposed language is not
inconsistent with the intent of the counterpart Federal
[[Page 26814]]
regulation at 30 CFR 845.12(c), and he is removing the required
amendment at 30 CFR 913.16(t).
24. 62 IAC 1847 Administrative and Judicial Review
a. Section 1847.3 Hearings
(1) 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, to decisions on minor underground mine
facility permit applications pursuant to 62 IAC 1785.23, and to
decisions on challenges to ownership or control links at 62 IAC
1773.24. The regulations at 62 IAC 1847.3 consolidate the procedures
for most of the formal reviews provided for in the Illinois program.
The proposed revision clarifies what additional portions of the
Illinois program are covered under the administrative review procedures
at 62 IAC 1847.3.
The Federal regulations provide for administrative hearings at 43
CFR 4.1360-1369 for permitting issues and at 43 CFR 4.1380-1387 for
challenges to ownership or control links. The Federal regulations at 30
CFR 842.15 do not provide for a formal adjudicatory administrative
hearing for decisions pertaining to review of decisions not to inspect
or enforce, but do provide for a right of appeal under 43 CFR 4.1280-
1286. The Director finds the regulations at 62 IAC 1847.3 are
consistent with 43 CFR part 4 for purposes of administrative hearings
on minor underground mine facility permit applications and challenges
to ownership or control links. He also finds that allowing a formal
adjudicatory administrative hearing for decisions pertaining to review
of a decision not to inspect or enforce is not inconsistent with the
Federal regulations at 30 CFR 842.15.
(2) Illinois is proposing revisions at subsections (f), (i), and
(j) to clarify that the final decision of the Department in
administrative review hearings held under 62 IAC 1847.3 is made by the
Hearing Officer. At subsection (f), Illinois is replacing the word
``Director's'' with the word ``final.'' At subsection (i), Illinois is
changing the time period from 15 to 10 days for filing of written
exceptions and responses and requiring exceptions to be filed with the
hearing officer instead of the Director. At subsection (j), Illinois is
specifying that if no exceptions are filed pursuant to the hearing
officer's proposed decision, the decision becomes final within 10 days
rather than 15 days. The revision also adds language which provides
that the hearing officer can affirm or modify his proposed decision or
remand and rehear the issue in response to any exceptions filed.
The Federal regulations relative to appeals of a variety of
administrative decisions, including 30 CFR 775.11 for decision on
permits, require that administrative hearings under Federal programs be
governed by 43 CFR part 4, which requires requests for review be filed
with the Office of Hearings and Appeals, U.S. Department of the
Interior. An Administrative Law Judge is assigned by the Office of
Hearings and Appeals and he or she issues a written decision. A
petition for discretionary review of the written decision can then be
filed with the Board of Land Appeals. States do not have the same
hierarchy available to them and must attempt to create an appeal
process which is as effective as that provided in the Federal
regulations. The Federal regulations specify general adjudicatory
provisions that States must include in their administrative review
hearing procedures, but allow the States discretion in how to implement
these provisions. This would include the determination of who shall
make final administrative hearing decisions. Therefore, the Director
finds that the designation of a hearing officer to make final
administrative hearing decisions does not render the Illinois
regulations less effective than the Federal regulations. The Federal
regulations contain no comparable provisions to those being revised
concerning filing of written exceptions to a hearing officer's
decision, time limits for filing written exceptions and responses to
exceptions, and time limits for issuance of a final administrative
decision. However, the Director finds that these proposed revisions
will not render the regulations at 62 IAC 1847.3 inconsistent with
SMCRA or the Federal regulations.
(3) In response to a required amendment, Illinois proposed to
revise 62 IAC 1847.3(1)(2) to specify that judicial review of an
administrative review decision may be requested if the hearing officer
or the Department fail to act within specified time limits. The Federal
regulations at 30 CFR 775.13(a)(2) also require that judicial review be
granted if the regulatory authority or the hearing officer for
administrative review fail to act within applicable time limits.
Therefore, the Director finds that Illinois' revised regulation is no
less effective than the counterpart Federal regulation, and he is
removing the required amendment at 30 CFR 913.16(u).
b. Section 1847.4 Citation Hearings
Illinois is proposing revisions at subsections (g), (j), and (k) to
clarify that the final decision of the Department in administrative
review hearings pertaining to citations is made by the Hearing Officer.
At subsection (g), Illinois is replacing the word ``Director's'' with
the word ``final.'' At subsection (j), Illinois is proposing to change
the time period from 15 to 10 days for filing of written exceptions and
responses. Also, they are to be filed with the hearing officer instead
of the Director. At subsection (k), Illinois is proposing to have the
proposed decision become final in 10 days instead of 15 if no written
exceptions are filed. Illinois is also proposing that the hearing
officer instead of the Director issue the final administrative decision
affirming or modifying or vacating the proposed decision if written
exceptions are filed. These revisions are substantively identical to
those proposed for 62 IAC 1847.3 (f), (i), and (j). Therefore, the
Director is approving the proposed revisions at 62 IAC 1847.4 (g), (j),
and (k) for the same reasons discussed in finding C.24.a.(2) for 62 IAC
1847.3 (f), (i), and (j).
c. Section 1847.5 Civil Penalty Assessment Hearings
Illinois is proposing revisions at subsections (j), (m), and (n) to
clarify that the final decision of the Department in administrative
review hearings pertaining to civil penalty assessments is made by the
Hearing officer. At subsection (j), Illinois is changing the reference
from the decision of the Director to the final decision. At subsection
(m), Illinois is proposing to change the time period from 15 to 10 days
for filing of written exceptions and responses. Also, they are to be
filed with the hearing officer instead of the Director. At subsection
(n), Illinois is proposing to have the proposed decision become final
in 10 days instead of 15 if no written exceptions are filed. Illinois
is also proposing that the hearing officer instead of the Director
issue the final administrative decision affirming, modifying, or
vacating the proposed decision if written exceptions are filed. These
revisions are substantively identical to those proposed for 62 IAC
1847.3 (f), (i), and (j). Therefore, the Director is approving the
proposed revisions at 62 IAC 1847.5 (j), (m), and (n) for the same
reasons discussed in finding C.24.a.(2) for 62 IAC 1847.3 (f), (i), and
(j).
[[Page 26815]]
d. Section 1847.6 Show Cause Hearings
Illinois is proposing revisions at subsections (i), (k), and (l) to
clarify that the final decision of the Department in administrative
review hearings pertaining to show cause orders is made by the hearing
officer. At subsection (i), Illinois is replacing the word
``Director's'' with the word ``final.'' At subsection (k), Illinois is
proposing to change the time period from 15 to 10 days for filing to
written exceptions and responses. Also, they are to be filed with the
hearing officer instead of the Director. At subsection (1), Illinois is
proposing to have the proposed decision become final in 10 days instead
of 15 if no written exceptions are filed. Illinois is also proposing
that the hearing officer instead of the Director issue the final
administrative decision affirming, modifying, or vacating the proposed
decision if written exceptions are filed. These revisions are
substantively identical to those proposed for 62 IAC 1847.3 (f), (i),
and (j). Therefore, the Director is approving the proposed revisions at
62 IAC 1847.6 (i), (k), (l) for the same reasons discussed in finding
C.24.a.(2) for 62 IAC 1847.3 (f), (i), and (j).
e. Section 1847.7 Bond Forfeiture Hearings
Illinois is proposing revisions at subsections (h), (j), and (k) to
clarify that the final decision of the Department in administrative
review hearings pertaining to bond forfeiture is made by the hearing
officer. At subsection (h), Illinois is replacing the word
``Director's'' with the word ``final.'' At subsection (j), Illinois is
proposing to change the time period from 15 to 10 days for filing of
written exceptions and responses. Also, they are to be filed with the
hearing officer instead of the Director. At subsection (k), Illinois is
proposing to have the proposed decision become final in 10 days instead
of 15 if no written exceptions are filed. Illinois is also proposing
that the hearing officer instead of the Director issue the final
administrative decision affirming, modifying, or vacating the proposed
decision if written exceptions are filed. These revisions are
substantively identical to those proposed for 62 IAC 1847.3 (f), (i),
and (j). Therefore, the Director is approved the proposed revisions at
62 IAC 1847.7 (h), (j), and (k) for the same reasons discussed in
finding C.24.a.(2) and 62 IAC 1847.3 (f), (i), and (j).
25. 62 IAC 1848.5 Notice of Hearing
Illinois proposed new subsection (f) to implement 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 specified information in a specified
format 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 cannot be placed where legal notices and
classified advertisements appear. The Federal regulations at 30 CFR
775.11 for administrative review hearings of permitting actions do not
contain this specific requirement for a public notice. However, the
Director finds that the addition of this new provision will not render
62 IAC 1848.5 less effective than the Federal regulations.
26. 62 IAC 1850 Training, Examination and Certification of Blasters
a. Section 1850.14 Examination
Illinois proposed to amend subsections (a) and (b) to allow
notification of examinations to be done by telephone in those cases
where it is not possible to give such notice in writing within the time
specified in the regulations by removing references to written
notification and notification by letter. The Director finds that the
counterpart Federal regulations at 30 CFR 850.14 do not contain any
specific requirements for notification of blaster certification
examinations and that the proposed revisions do not alter the
effectiveness of Illinois' previously approved blaster examination
provisions. Therefore, the revised regulations at 62 IAC 1850.14 and no
less effective than the counterpart Federal regulations.
b. Section 1850.15 Application and Certification
Subsection (a) is proposed to be amended by shortening the deadline
for receipt of applications for certification from 45 days to 30 days
and by shortening the deadline for review of applications from 30 to 15
days. Illinois also proposed a revision that will allow the option of
including any applicant with an application received less than 15 days
before a regularly scheduled session in that session or in the next
session. The counterpart Federal regulation at 30 CFR 850.15(a) does
not contain specific procedures governing applications for
certification. The Director finds the proposed revisions will allow
Illinois more flexibility in scheduling and administering its blaster
certification examinations and will not alter the effectiveness of
Illinois' previously approved provisions. Therefore, the revised
regulations at 62 IAC 1850.15 are no less effective than the
counterpart Federal regulations.
c. Section 1850.16 Denial, Issuance of Notice of Infraction,
Suspension, Revocation, and Other Administrative Actions
Illinois proposed several nonsubstantive revisions at 62 IAC
1850.16: Subsection (b) is proposed to be entitled ``Notice of
Infraction'' and subsection (c) is proposed to be entitled ``Notice to
Show Cause; at subsections (b)(1) (A) and (D), various regulatory and
statute citations are corrected, including the reference to SMCRA; and
it subsections (b)(3) and (c)(2) and (c)(3), the hearing regulation
reference is corrected to reference the State's new section for
administrative review of blasting infractions at 62 IAC 1847.4 (e) and
(g) through (p).
Subsection (b)(3) is proposed to be revised by clarifying the
blaster is to file a request for review and hearing of a notice of
infraction with the Department. The specific address listed in this
subsection is removed since it is subject to change. The blaster's
request for review is simplified by removing a requirement to include
specified information, which would already be available to the
Department. In subsections (b) and (c), the hearings for a notice of
infraction and a notice to show cause are proposed to be held at one of
the Department's offices, and the existing language, which limited the
hearings to two locations, is removed. These changes will provide for
greater opportunity to hold hearings in the locale of the requestors.
The Director finds that the proposed revisions at 62 IAC 1850.16
simplify, clarify, and strengthen the Illinois provisions for
administrative review of blaster certifications and are not
inconsistent with the Federal regulations at 30 CFR 850.15.
d. Section 1850.17 Judicial Review
Illinois proposed to repeal 62 IAC 1850.17 concerning judicial
review for final administrative decisions on blaster certifications.
The Director finds that since the provision for judicial review of
these administrative decisions is contained in previously approved 62
IAC 1847.4(p) and section 1847.4 is referenced in all applicable
sections of 62 IAC 1850, this repeal will not render the Illinois
blaster certification regulations less effective than the counterpart
Federal regulations.
[[Page 26816]]
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided on an
opportunity for a public hearing on the proposed amendment on two
separate occasions. A public hearing was held on March 24, 1995, in
Galesburg, Illinois (Administrative Record No. IL-1636). Comments on
the proposed revisions to Illinois' regulations were received from
Janis King, President of the Citizens Organizing Project; Dennis
Sullivan, Vice-president of the Sauk Trail Organization for
Preservation; Roger Holmes, President of the Knox County Farm Bureau;
Robert L. Masterson, Zoning Administrator for the Knox County Zoning
Department; Helen Pence; Anna Johnson and Patrick D. Shaw, Citizens
Organizing Project; Tom Fitzgerald, Director of the National Citizens'
Coal Law Project (NCCLP); Robert G. Darmody, Associate Professor of
Pedology, University of Illinois, and Keith Shank.
Following is a summary of the substantive comments received on the
proposed amendment. Comments identifying errors of a purely
typographical or editorial nature, comments voicing general support or
opposition to the proposed amendment but devoid of any specific
statements, and comments which do not specifically relate to
requirements in the proposed regulations are not discussed. The
summarized comments and responses to the comments are organized by the
section of the amended regulations to which they pertain.
62 IAC 1700.11(f) Termination of jurisdiction
Comment: To the extent that the requirements of 62 Ill. Code 280
incorporate all of the counterpart 30 CFR Subchapter B interim program
performance standards and other requirements, the proposed adoption of
the termination of jurisdiction regulations appear to conform to 30 CFR
700.11(d).
Response: The Illinois regulations at 62 IAC 280 incorporate by
reference the applicable provisions of subchapter B of the Federal
regulations.
62 IAC 1701.Appendix A Definition of Wetland
Comment 1: Two commenters expressed concern that not requiring all
three of the wetland parameters to be present prior to bond release
could result in environmental damage and incomplete reclamation.
Response: As discussed in finding C.2, Illinois' explanation that
the hydric soil profile may not be fully developed in an artificial
wetland is consistent with the U.S. Army Corps of Engineers'
determination that indicators of hydric soils are usually absent in
man-induced wetlands. Furthermore, as discussed in finding C.14.k,
Illinois proposed and the Director approved wetland revegetation
regulations at 62 IAC 1816.116(a)(5) and 1817.116(a)(5) that require
the use of the wetland vegetation criteria and sampling procedures
specified in the U.S. Army Corps of Engineers Wetlands Delineation
Manual, Technical Report Y-87-1. Therefore, reclaimed areas must meet
specified revegetation success standards prior to bond release.
Comment 2: One commenter expressed concern regarding the
requirement that a mitigated wetland area function as a wetland to be
considered wetlands, and recommended that it be deleted because of the
possible difficulties in applying the requirement. The commenter
expressed the belief that all mitigation areas should be protected
regardless as to whether they exhibit tangible wetlands functions.
Response: The proposed definition does not conflict with any
existing Federal regulation. OSM interprets the requirement for a
functioning wetland to be applicable to areas reclaimed as planned
wetlands which have attained that land use as determined by a trained
professional of the State's staff, but may not clearly meet each of the
three parameters contained in the definition. As discussed in finding
C.2, the U.S. Army Corps of Engineers recognizes that man-induced
wetlands (restored or created wetland) may not contain all three
parameters.
Pre-existing wetlands mitigation requirements and conditions
relating to surface coal mining activities are determined by the U.S.
Army Corps of Engineers under section 404 of the Clean Water Act. In
accordance with section 702(a)(3) of SMCRA, Federal and State program
requirements cannot supersede, amend, modify, or repeal requirements
under section 404 of the Clean Water Act, including mitigation plans
for those wetlands which existed in the premining landscape and are
being replaced in accordance with a Section 404 permit. If mitigation
of pre-existing wetlands is required, the mine operator must meet the
requirements and conditions of the U.S. Army Corps of Engineers.
However, section 515(b)(24) of SMCRA requires surface coal mining
operations ``to the extent possible using the best technology currently
available, minimize disturbances and adverse impacts of the operation
on fish, wildlife, and related environmental values, and achieve
enhancement of such resources where practicable.'' Furthermore, the
Illinois program implements this SMCRA requirement at 62 IAC 1816.97
and 1817.97 by requiring the protection of fish, wildlife, and related
environmental values, including wetlands.
Comment 3. One commenter believed that the State should be
requested to commit to permit, require bonds, and apply all reclamation
to wetland mitigation areas.
Response: As discussed above, mitigation of pre-existing wetlands
is conducted under the authority of the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act. Pursuant to the requirements
of section 702(a)(3) of SMCRA, OSM does not have the authority to
require States to permit, require bonds, and apply all reclamation
standards to off-site wetland mitigation areas. Furthermore, on-site
wetland mitigation areas are subject only to those requirements of a
Federal or State program that do not supersede, amend, modify, or
repeal requirements under Section 404 of the Clean Water Act.
62 IAC 1701.Appendix A Definition of Violation Notice
Comment: Two commenters were concerned that the definition of
violation notice would not include violations involving underground
mining operations because of its reference to ``surface coal mining
operations'' only .
Response: Illinois' defines ``surface coal mining operations'' at
62 IAC 1701.Appendix A to mean ``activities conducted on the surface of
lands in connection with a surface coal mine or subject to the
requirements of Section 516 of the Federal Act, surface operations and
surface impacts incident to an underground coal mine, the products of
which enter commerce, or the operations of which directly or indirectly
affect interstate commerce.'' Therefore, the proposed definition of
``violation notice'' requires Illinois to consider violations in
connection with both surface and underground coal mines.
62 IAC 1761.11(d)(12) [Recodfied 1761.11(a)(4)(B)] Areas Where Mining
is Prohibited or Limited
Comment: Two commenters were concerned with the deletion of the
phrase ``including surface areas impacted by planned subsidence'' from
this provision. One commenter believed that the deletion ``could be
construed to mean an intent to prohibit any planned
[[Page 26817]]
subsidence within 100 feet of a public road, or an intent to completely
eliminate from consideration the location of planned or unplanned
subsidence relative to public roads.'' This commenter supported the
application to public roads.'' This commenter supported the application
of the 30 CFR 761.11 prohibitions to underground mining that has the
potential to cause direct or indirect surface impacts, and believed
that unless it can be demonstrated that material damage will not occur
from the underground operation (planned or room and pillar), the permit
should not be issued.
Response: The language in the revised regulation at existing 62 IAC
1761.11(d)(2) [recodified 1761.11(a)(4)(B)] is substantively identical
to the corresponding Federal regulation at 30 CFR 761.11(d)(2); and,
therefore, is not inconsistent with the Federal requirements.
62 IAC 1773.15(b) Review of Violations
Comment 1: Two commenters were concerned that the phrase ``surface
coal mining and reclamation operations'' restricted the provision at 62
IAC 1773.15(b)(1) for evaluating violator status of permit applicants
to violations in connection with surface coal mines.
Response: Illinois' definition of ``surface coal mining and
reclamation operations'' at 62 IAC 1701.Appendix A includes its
definition of ``surface coal mining operations.'' As discussed above,
under 62 IAC 1701.Appendix A, definition of ``violation notice,''
Illinois must consider violations in connection with both surface and
underground coal mines.
Comment 2: One commenter objected to the provision at 62 IAC
1773.15(b)(2) that allows a permit to be conditionally issued if an
outstanding violation is in the process of being corrected.
Response: The proposed regulation at 62 IAC 1773.15(b)(2) is
substantively identical to the Federal regulation at 30 CFR
773.15(b)(2), and, therefore, is not inconsistent with the Federal
requirements.
Comment 3: One commenter acknowledged that the State rule and the
Federal rule are identical, but expressed the opinion that both rules
are inconsistent with the Federal Act.
Response: The appropriateness of the Federal rule is not at issue
in this rulemaking.
62 IAC 1773.24 (b) Through (d) Procedures for Challenging Ownership or
Control Links Show in the AVS
Comment: It is not clear from the proposed revision to 62 IAC
1773.24 (b) through (d), that the phrase ``other person'' in the
context of who beyond the applicant may appeal a decision concerning
whether an ownership and control link has been demonstrated or
rebutted, includes persons (such as neighbors of the proposed mining
operation) who have an interest which is or may be adversely affected
by the decision to lift an ownership and control link and permit block.
Response: The Illinois regulation at 62 IAC 1773.24(b), as revised
on November 1, 1995, specifically states that the ``other person'' must
be eligible under the provisions of subsection (a)(3). To be eligible
under the provisions of subsection (a)(3). To be eligible under the
provisions of subsection (a)(3), the ``other person'' must be shown in
the AVS in an ownership or control link to any person cited in a state
violation notice.
62 IAC 1773.25(c)(1)(B) Standards for Challenging Ownership or Control
Links
Comment: How can a person who ``owns or controls'' not have
authority to determine manner in which surface mining operations are
conducted? The criteria for exclusion from responsibility for a
violation is contrary to the liability of ownership.
Response: Illinois' regulation at 62 IAC 1773.25(c)(1)(B) is
substantively identical to the Federal regulation at 30 CFR
773.25(c)(1)(ii). These regulations refer to a person who is subject to
a presumption of ``ownership or control.'' This presumption is
refutable under the definition of ``owned or controlled'' or ``owns or
controls'' at 30 CFR 773.5.
62 IAC 1774.13(b)(2)(E) Permit Revisions
Comment 1: The proposed change in this rule, to the extent that it
allows an increase in the acreages for which the postmining land use
may be changed without public notice and comment, is opposed as being
arbitrary and inconsistent with the purpose of the Act of enfranchising
the public in permitting matters.
The proposal would allow a ``rolling'' 5% limit, that would restart
whenever the prior land use changes had been subject to public review,
rather than cumulating such changes. The concern is that a 5% limit is
unrelated to the significance of the land use change, which, depending
on the type of land and pre- and post-mining land use, could be locally
significant (i.e. high quality farmland to hayland/pasture,
agricultural to industrial or commercial, etc.) The NCCLP suggests that
an abbreviated public comment period should be provided in all cases
where the post-mining land use is to be changed, as is apparently
provided with all incidental boundary revisions.
Response: Neither SMCRA nor the Federal regulations require a
public comment period for all postmining land use changes. Section
511(b)(2) of SMCRA and the Federal regulations at 30 CFR 774.13(b)
require the regulatory authority to establish guidelines for the scale
or extent of revisions for which all the permit application
requirements will apply, including public notice. As discussed in
finding C.7.a, the Director found that the proposed change represents a
reasonable application by Illinois of this requirement.
Since Illinois requires all alternative land use revisions, both
significant and insignificant, to comply with 62 IAC 1816.133 or
1817.133, the concern that Illinois would approve a proposal to allow a
disturbed area to be restored to a lower or a lesser land use is
unfounded. These sections of the Illinois program pertain to postmining
land capability requirements, including the requirement that the
disturbed areas be restored to a condition capable of supporting prior
uses or higher or better uses. Illinois also requires consultation with
the landowner or the land management agency with jurisdiction over the
lands before approval of either type of revision.
Comment 2: One comment questioned whether Illinois had a definition
for ``insignificant change'' with relation to its proposed provisions
for land use changes.
Response: Illinois does not have a specific definition for
``insignificant change'' in its regulations at 62 IAC 1774.13. However,
subsections 1774.13(b)(2) (A) through (E) specify departures from the
methods or conduct of mining or reclamation operations which would not
be considered significant, including changes in land use. Subsection
1774.13(b)(2)(E) contains the criteria used to determine whether a land
use change is significant or insignificant. This final determination
must be made on a case-by-case basis. As discussed in finding C.7.a,
the Federal counterpart regulation for permit revisions at 30 CFR
774.13(b) requires the regulatory authority to establish guidelines for
the scale or extent of revisions.
[[Page 26818]]
62 IAC 1774.13(d)(6) Incidental Boundary Revisions
Comment: The NCCLP further cautions against increasing the acreage
that can be added to permits under IBRs without full-scale public
review as would attach to a permit or permit amendment, since the use
of IBRs on the scale contained in the existing Illinois state program
is arguably inconsistent with the federal Act. The commenter believed
that the addition of as much as 20 acres of area to existing permits
under the State's incidental boundary revision regulations went beyond
the intent of Congress.
Response: The Director previously approved the existing Illinois
provisions pertaining to the size and scope of incidental boundary
revisions, and no changes to these provisions are proposed in this
amendment. As discussed in finding C.7.b, the Director is approving a
new provision at subsection (d)(6) that requires public notice and
comment for all additions to permit areas and planned subsidence areas
that are requested pursuant to Illinois' incidental boundary revision
regulations at 62 IAC 1774.13(d).
62 IAC 1778.15 Right of Entry Information
Comment: The proposal to delete the requirement of right-of-entry
information for areas overlying underground workings is inconsistent
with the federal Act and Secretary of Interior's regulations and the
original requirement must be reinstated. The requirement, hardly a
``burdensome'' matter, is a mandate for all areas within the permit
area, and the Secretary's regulations require that areas overlying
tunnels, shafts and underground operations, be bonded, thus those areas
are within the permit area under 30 CFR 701.5. The commenter provided
additional argument in support of the belief that areas overlying
underground shafts, tunnels and operations should be subject to right-
of-entry requirements, should be included within the permit area, and
should be bonded (Administrative Record No. IL-1643).
Response: As discussed in finding C.8.a, OSM revised the Federal
definition of ``permit area'' and associated terms to exclude areas
overlying underground workings (48 FR 14814, April 5, 1983). Also, the
preamble to the July 19, 1983, revisions to the Federal bonding rules
clarifies that no bond is needed for areas overlying underground
workings (48 FR 32947-48). Therefore, the Federal regulation at 30 CFR
778.15(a) does not require a description of right-of-entry documents
for areas overlying underground workings (shadow area). The Illinois
regulation at 62 IAC 1778.15(a) is substantively identical to the
Federal counterpart, and, therefore, is not inconsistent with the
Federal requirements.
62 IAC 1785.17(a) Prime Farmlands
Comment: Three commenters objected to the proposed deletion of
provisions that required a preliminary prime farmland exemption review
and that limited the amount of prime farmland to be exempted in the
State.
Response: The Federal regulations do not contain counterpart
provisions to the language deleted from the State regulations. As
discussed in finding C.10, the revised regulation provisions at 62 IAC
1785.17(a) are substantively identical to the counterpart Federal
regulation provisions at 30 CFR 785.17(a), and, therefore, they are not
inconsistent with the Federal requirements.
62 IAC 1785.17(d)(1) Consultation With the State Conservationist
Comment: Four commenters objected to the proposed deletion of the
phrase ``The State recognizes that the permit cannot be issued without
the required consultation with the USDA'' from 62 IAC 1785.17(d)(1).
Response: Illinois withdrew its proposed deletion, and reinstated
the phrase at the end of 62 IAC 1785.17(d)(1).
62 IAC 1795.6(b) Eligibility for Assistance
Comment: Eligibility for ``Small Operators Assistance Program'' is
based on yearly productivity from an operation covered by a single
permit as per the wording of the proposed rule. The proposed 300,000
Tons per year eligibility should be reduced to 100,000 Tons. The reason
for this is that 300,000 Tons is too close to the following
productivity as per the Department's 1993 Statistical Report: ASARCO
Knox County--428,546 Tons, Freeman-United Industry, McDonough County--
431,103 Tons, and Consolidated Burning Star #2--324,555 Tons. Surely,
not any of these companies need assistance.
Response: The commenter has misinterpreted the proposed rule. As
described in 62 IAC 1785.6 (b)(1) through (b)(4), coal produced by
other mines and other companies in which the applicant has an interest
must be added to the applicant's anticipated production. The revised
regulation is substantively identical to the Federal regulation at 30
CFR 795.6(a)(2).
62 IAC 1795.12(b) Applicant Liability
Comment: The elimination of the objective standard for what
constitutes ``good faith'' for purposes of waiver of the reimbursement
obligation makes it unclear whether the standard will be one of
reasonable prudence or ``good heart, empty head.''
Response: The Federal regulation at 30 CFR 795.12(b) does not
contain a definition of ``good faith.'' Therefore, the proposed
deletion does not render the State regulation less effective than the
Federal counterpart. The phrase ``good faith'' can be reasonably
applied within its normal meaning, and a definition is not needed.
62 IAC 1800.5(b)(4)/1800.21(b)(1) Irrevocable Letter of Credit
Comment: The proposal to allow irrevocable letters of credit to be
posted by institutions chartered outside of Illinois must retain the
requirement that there be a bank within the state authorized to pay the
letter on presentation, since under the ``full faith and credit''
doctrine, courts in sister states will entertain defenses to penal
judgments obtained from a court or agency in another state.
Response: Both 62 IAC 1800.5(b)(4) and 1800.21(b)(1) contain a
requirement for a designated confirming bank with an office in Illinois
that is authorized to accept, negotiate, and pay the letter upon
presentment in Illinois.
62 IAC 1800.20(b) Surety Bonds
Comment: By removing required conditions for surety, you are
removing standards by which to determine whether corporate surety is
``good and sufficient'' as required by the Surface Coal Mining Land
Conservation and Reclamation Act. 225ILCS 720/6.01(a). This increases
the chance that the Illinois taxpayers will be the ones ultimately
required to pick up the tab if reclamation is not completed.
Response: The counterpart Federal regulations do not contain the
provisions proposed for deletion. Therefore, the proposed removal of 62
IAC 1800.20(b) (2) through (5) does not render the State regulations
inconsistent with the Federal regulations at 30 CFR 800.20(b).
62 IAC 1816/1817.13 and 1816/1817.15 Casing and Sealing of Exposed
Underground Openings
Comment: The requirement to ``backfill'' drilled holes and exposed
underground openings is less protective than casing, sealing and
otherwise managing the holes. Depending on the circumstances, the
backfilling of a hole with porous material can allow
[[Page 26819]]
migration of contaminants. On its face, the requirement is less
protective than 30 CFR 816.13, 14 and 15.
Response: Illinois withdrew its proposed revision to these
sections.
62 IAC 1816/1817.22 Topsoil and Subsoil
Comment: Three commenters expressed concern regarding the removal
of the provisions at 62 IAC 1816(b)(2) and 1817(b)(2) that require
topsoil plans for substitutes or supplements for prime farmland be
considered a significant revision subject to public review. Their major
concern was that Illinois would allow the use of non-prime soil for
substitutes or supplements for prime farmland soils.
Response: As discussed in finding C.14.a, the counterpart Federal
regulations at 30 CFR 816.22(b) and 817.22(b) do not contain the
removed language. However, the Director notes that prime farmland
reclamation plans, including topsoil plans, must meet the special
environmental protection reclamation standards for prime farmland soils
at 62 IAC 1823. This includes the requirement at Sec. 1823.12(a) that
reconstructed soils have equal or greater productive capacity than what
existed before mining.
62 IAC 1816/1817.41(c)(2) Ground Water Monitoring
Comment: To submit groundwater monitoring data every three months
is not often enough to allow remedial action to a problem.
Response: As discussed in finding C.14.b, the Illinois regulations
are consistent with the Federal counterpart regulations at 30 CFR
816.41(c)(2) and 817.41(c)(2) that require reports to be submitted
every three months or more frequently as prescribed by the regulatory
authority.
62 IAC 1816/1817.41(e)(2) Surface Water Monitoring
Comment: Keep requirement that NPDES reports be sent to the
Department concurrent with those sent to Illinois EPA.
Response: The Federal regulations do not require that National
Pollutant Discharge Elimination System (NPDES) reports be submitted to
State regulatory authorities. Therefore, the proposed revisions to this
section are not inconsistent with the Federal regulations at 30 CFR
816/817.41(e)(2). As discussed in finding C.14.c, Illinois has retained
its requirement that surface water monitoring data be submitted every
three months or more frequently if necessary.
62 IAC 1816/1817.46(e)(1) Siltation Structures; Exemptions
Comment: Two commenters expressed concern regarding the new
exemption at 62 IAC 1816.46(e)(1) and 1817.46(e)(1) that would allow
use of the alternative sediment control measures described in 62 IAC
1816.45(b) and 1817.45(b) in lieu of a siltation structure for control
of drainage from disturbed areas. One commenter expressed the belief
that ``the use of siltation structures remains the BTCA for the coal
mining point source category, and allowing alternative sediment control
measures in lieu of siltation structures for areas defined only as
`small' is not consistent with the Secretary's regulations.'' One
commenter questioned: ``When is the use of straw bales to filter pit
pumpage better than a sediment pond?''
Response: As discussed in finding C.14.d, the Federal regulations
at 30 CFR 816.46(b)(2) and 817.46(b)(2) which require all surface
drainage from a disturbed area to be passed through a siltation
structure were suspended on November 20, 1986 (51 FR 41957-41958).
Therefore, State regulatory authorities may determine on a case-by-case
basis what is BTCA rather than requiring that drainage be passed
through siltation structures in all cases. As discussed in the
referenced finding, Illinois is requiring permittees to demonstrate
that drainage from the disturbed area will meet effluent limitation and
water quality standards without the use of siltation structures and
will require that any alternative sediment control measures be shown to
be the BTCA.
62 IAC 1816/1817.97 Protectio of Fish, Wildlife, and Related
Environmental Values
Comment: Four commenters expressed concern that the elimination of
the reference to the Illinois Endangered Species Protection Act (520
ILCS 10/1) would remove state-listed species from protection. Two of
the commenters were concerned that elimination of the reference would
violate the State Act and ``would be misleading as to the obligations
of mining operations.''
Response: Section 505(a) of SMCRA provides that: ``No State law or
regulation in effect on the date of enactment of this Act, or which may
become effective thereafter, shall be superseded by any provision of
this Act or any regulation issued pursuant thereto except insofar as
such State law or regulation is inconsistent with the provisions of
this Act.'' Therefore, if mining operation activities are covered under
the Illinois Endangered Species Protection Act (520 ILCS 10/1), the
removal of the reference will not affect an operator's obligations
under this Act. Furthermore, the State regulations at 62 IAC 1816.97(b)
and 1817.97(b) and the Federal counterpart regulations at 30 CFR
816.97(b) and 817.97(b) still require the operator to report any state-
or federally-listed endangered or threatened species within the permit
area and require consultation with appropriate State and Federal fish
and wildlife agencies before allowing the operator to proceed with
mining activity. Therefore, state endangered species are still
protected under the Illinois program.
62 IAC 1816/1817.116(a)(2)(B) Success of Revegetation; Extended
Responsibility Period
Comment: In the OSM publication of the Surface Mining Act which
includes all revisions through December 31, 1993, there is at section
515(b)(20)(B) of the Federal Act a note that this section was added
October 24, 1992. However, in that 1993 addition there is no mention of
the date September 30, 2004. Hence, the year 2004 should be eliminated
from the proposed rule.
Response: The commenter is correct that in section 515(b)(20)(B) of
SMCRA the date September 30, 2004, is not mentioned. However, section
510(e) of SMCRA specifies that the authority of section 515(b)(20)(B)
shall terminate on September 30, 2004. Therefore, the date should not
be eliminated from the proposed regulation.
62 IAC 1816/1817.116(a)(2)(F) (i), (ii), and (iii) Success of
Revegetation; Augmentation; High Capability Land
Comment: Two commenters were concerned that the deletion of the
provisions concerning augmentation of high capability land areas would
lower the State's standards for reclamation of high capability cropland
areas.
Response: The deletion of these provisions does not alter the
requirement that reclaimed high capability cropland areas meet the
success of revegetation standards set forth in 62 IAC 1816/
1817.116(a)(3)(C) and (a)(4).
62 IAC 1816/1817.116(a)(2)(F)(i) Success of Revegetation;
Augmentation; Pasture and Hayland
Comment: Two commenter expressed concern with the proposed language
in this section which stated that the period of responsibility shall
not recommence after deep tillage on areas where the
[[Page 26820]]
revegtation success standard has been met.
Response: OSM is not approving the proposed language. Deep tillage
has not been approved as a normal husbandry practice in Illinois.
Therefore, its use would restart the responsibility period as required
by 30 CFR 816.116(c)(1).
62 IAC 1816/1817.116(a)(3)(E) Revegetation Success; Ground Cover and
Production for Pasture, Hayland, and Grazing land
Comment 1: One commenter disagreed with the proposed deletion of
the provision that limited the substitution of corn production for hay
production on high capability land to one year.
Response: As discussed in finding C.14.g, the Illinois
administrative record contains sufficient proof that high capability
land is suitable for crops and that crop/hay rotations are common
practices in cropland areas surrounding mines.
Comment 2: One commenter disagreed with the proposed provision that
would allow the substitution of one year of crop production for hay
production on limited capability land. He was concerned that there
would be no available yield data that could be factored into the
State's productively formula to project a reliable yield standard for
grain crops grown on limited capability lands.
Response: As discussed in finding C.14.g, Illinois indicated in the
preamble to its February 3, 1995, amendment (Administrative Record No.
IL-1615) that the proposed provision would be applied to those limited
capability land areas that were reclaimed to a higher quality (such as
prime farmland or high capability standards). As noted in the
referenced finding, the Director approved this provision to the extent
that Illinois restricts its approval to limited capability lands that
are reclaimed to a higher quality.
62 IAC 1816/1817.116(a)(3)(F) Revegetation Success; Non-Contiguous
Areas Less Than or Equal to Four Acres
Comment: Two commenters objected to the language in this section
which would exempt, under certain conditions, areas up to four acres
from any type of testing for revegetation success.
Response: OSM is not approving the proposal. The merit of some type
of exemption for small areas is recognized by OSM. However, the
Illinois proposal lacks the requirements OSM believes are necessary to
implement such a proposal (see finding C.14.h).
62 IAC 1816.116(a)(4)(A)(ii) Success of Revegetation; Field to
Represent Non-Contiguous Areas Less Than or Equal to Four Acres
Comment: Six commenters objected to the Illinois proposal in this
section which would exempt non-contiguous areas up to four acres in
size from any type of revegetation success testing if the Department
determines that another larger field is representative of the smaller
four acre or less area.
Response: OSM is not approving this proposal. The Federal
regulation at 30 CFR 816.116(a)(2) requires a statistically valid
sampling technique for assessing the success of vegetation for all
areas. Illinois has not demonstrated that its proposal would provide a
statistically valid representative test field at a 90 percent
confidence interval.
62 IAC 1816/1817.116(a)(5) Success of Revegetation; Wetlands
Comment: ``Aerial coverage'' for measurement of success of wetland
revegetation is undefined. The success criteria for revegetation of
wetlands should be identified in the post-mining land use plan, and
should be sufficient to demonstrate the area is functioning as a
wetland, (not merely a final cut impoundment) including the full range
of functions and values sought to be replicated or restored for that
wetland. The bond should not be released without coordination with the
US Army Corps of Engineers, and an areal coverage of 30% is remarkably
low, leaving 70% of the area either unvegetated or containing possibly
incompatible species. Particularly where the wetland is a bottomland
hardwood or other intermittently-inundated land, the vegetative success
criteria should be comparable to the cover and revegetation
requirements for other land uses.
Response: Use of the term ``aerial coverage'' is consistent with
its usage in the U.S. Army Corps of Engineers Wetlands Delineation
Manual. Although, ``aerial'' is a misspelling and it has been corrected
to ``areal.'' In the past, Illinois determined the success for those
fish and wildlife land use reclamation plans that contained wetland
areas on a case-by-case basis. Illinois is proposing to replace the
case-by-case approach with a consistent wetland reclamation standard.
Most final-cut impoundments would not meet the criteria for a wetland,
as these areas are considered deepwater habitat. However, the edges of
final-cut impoundments where water is shallow can be developed as
wetland areas.
Wetland areas intended to mitigate pre-existing wetlands must meet
the conditions of the U.S. Army Corps of Engineers' 404 permit.
Pursuant to the requirements of section 702(a)(3) of SMCRA, Federal and
State program requirements cannot supersede, amend, modify, or repeal
requirements under Section 404 of the Clean Water Act, including
mitigation plans for those wetlands which existed in the premining
landscape and are being replaced in accordance with a Section 404
permit. Therefore, the revegetation standards for wetlands proposed by
the State would not pertain to wetlands constructed to mitigate pre-
existing wetlands. They would pertain only to those wetlands
constructed to supplement and enhance a postmining land use of fish and
wildlife habitat. The Federal regulations at 30 CFR 701.5, 780.25,
816.46, and 816.49 (Impoundments); 816.84(b)(1) (Coal Mine Waste
Impounding Structures); 816.97 (Protection of Fish and Wildlife);
816.102 (Backfilling and Grading); 816.111 and 816.116 (Revegetation);
816.133 (Postmining Land Use) allow for the construction of wetlands
that supplement and enhance fish and wildlife habitat.
Coordination with the U.S. Army Corps of Engineers prior to bond
release of wetlands that are not under the jurisdiction of the Corps is
not required by SMCRA or the Federal regulations. As discussed in
finding C.14.k, Illinois submitted adequate support for its use of a
minimum 30 percent areal coverage standard.
62 IAC 1816/1817.116(c) Success of Revegetation; Reference Area
Comment: Six commenters objected to the use of reference areas in
lieu of Illinois' Agricultural Lands Productivity Formula Sampling
Method for determining the success of revegetation for cropland and
hayland. Extensive comments were submitted in support of this
objection.
Response: Illinois withdrew its proposed regulations at 62 IAC
1816.116(c) and 1817.116(c) pertaining to use of a reference area for
determining the success of revegetation for cropland and hayland.
62 IAC 1816/1817.117(a)(3) Tree and Shrub Vegetation on Erosion
Control Structures
Comment: One commenter was concerned that operators will not be
required to plant trees and shrubs on erosion control structures,
including pond embankments.
Response: As discussed in finding C.14.m, the planting of trees and
shrubs
[[Page 26821]]
on the embankments of erosion control structures is not a sound
engineering practice. A herbaceous ground cover will be required for
these areas.
62 IAC 1816/1817.117(b) Tree and Shrub Vegetation, Woody Plants
Comment: One commenter was concerned that the new provision
pertaining to a case-by-case approval of planting arrangements for
wildlife areas would eliminate the requirement that an operator must
plant trees and shrubs on areas to be developed for fish and wildlife
habitat or recreation areas.
Response: Illinois' regulation at 62 IAC 1816/1817.117(b) still
requires that these areas have a minimum population of 250 trees or
shrubs per acre. The new provision allows operators to request approval
for optional planting designs rather than requiring uniform planting
arrangements for all mined wildlife and recreation areas.
62 IAC 1816/1817.190(a) Affected Acreage Map
Comment: This change would eliminate sending maps and reports on
affected acreage to county clerks. We object to deletion of the phrase
``and to the county clerk.'' This deletion would further deny local
government its role in protecting natural resources, a role already
deeply invaded by the fossil fuel preemption.
Response: Illinois' proposed revision at subsection (b) requires
the operator to submit an additional copy of the affected acreage
report and maps for each county in which the permit is located and
requires the Department to forward those additional copies to the
county clerk(s). Therefore, Illinois is now assured that a copy of the
affected acreage report and map goes to the county.
62 IAC 1816/1817.190(b) Affected Acreage Map
Comment: What do words, ``Also, statutory citations are being
updated in subsection (b)'' as found in the Federal Register mean?
Response: Citations to and titles of statutes have been updated to
reflect Illinois' new statutory codification system.
62 IAC 1816. Appendix A Agricultural Lands Productivity Formula Permit
Specific Yield Standard; Subsections (a), (b), and (c)
Comment 1: One commenter raised the concern that the proposed
change from permit area to pit area will need to be ``fine turned'' and
that the issue when a pit lies in more than one county should be
addressed.
Response: OSM has determined that the State's proposal to utilize
pit area instead of permit area will meet the requirements of 30 CFR
823.15 in providing a representative standard. Existing Illinois
regulations require the State to utilize data from the county in which
the area being tested is located.
Comment 2: One commenter expressed several concerns with the
Illinois proposal to utilize only the lands disturbed within the pit
area in the Illinois productivity formula once mining has ceased. These
concerns included the proposal not to apply the recalculated standard
to areas previously tested.
Response: The requirement under the Federal regulations is to
obtain the most representative sample of the mined and reclaimed areas.
OSM believes the Illinois proposal meets that requirement. Because the
Illinois formula results in annual targets based upon year-specific
climatological data and yield data, it would not be appropriate to
apply the recalculated standard retroactively.
Comment 3: One commenter raised the issue of landowner comment
opportunities in relation to the change from permit area to put area.
The concern was that the target yields could change because of the
recalculation at the tie of cessation of mining and the landowner would
not be offered the opportunity to comment at the time of the change.
Response: OSM required Illinois to clarify how the pit area would
be defined under a variety of circumstances. This was done to assure
that the pit area was not only truly representative of the mined and
reclaimed area, but also to assure the pit area was always a clearly
defined area. Illinois provided the information needed to resolve these
concerns. In finding C.18, OSM made it clear that Illinois must
interpret the rule in a manner which assures the use of representative
areas and results in a clear and consistent delineation of the pit
area. The possible circumstances for which OSM sought clarification and
the associated opportunities for public comment are listed below.
(1) Single pit within a single permit. The pit area would be the
same as the permit area, and thus the change from permit to pit would
not affect the opportunity to comment.
(2) Multiple pits within a single permit. Each pit area will be
clearly marked on the permit map, and will be subject to public comment
as part of the permitting process.
(3) Single pit within several permits that have been consolidated
into a single permit. Public review will occur at the time of
consolidation.
(4) Multiple pits within several permits that are consolidated into
one permit Each pit area will be clearly marked on the consolidated
permit map that will be subject to public review prior to approval.
Thus the opportunity to comment should be available whenever a
change in the pit area is made.
Comment 4: One commenter was concerned with the provision at
subsection (c) that requires yield targets to be recalculated if a
significant revision is proposed after permanent cessation of mining.
She wanted to know why Illinois would allow a ``significant revision''
after permanent cessation of mining.
Response: Illinois' regulations at 62 IAC 1774.13(b)(2) require
significant revisions to a permit be obtained for changes in
reclamation operations when such changes constitute a significance
departure from the method contemplated by the original permit. Since
reclamation operations are on-going after permanent cessation of active
coal mining, significant revisions to reclamation plans may be
proposed.
62 IAC 1816. Appendix A Agriclutural Lands Productivity Formula Permit
Specifics Yield Standard; Subsections (d) and (f)
Comment: Extensive comments were received from five commenters
opposing proposed provisions to be added at subsection (d) that
required annual target yield adjustments to be based on the county with
the greater permit acreage if a mining pit was present in more than one
county and subsection (f) that allowed Illinois to consolidate prime
farmland and high capability target yields.
Response: These proposed provisions were withdrawn.
62 IAC 1817.121(c)(3) Subsidence Control
Comment: Subsidence from underground mining requires operators to
supply any residential, etc. water lost from underground mining but for
how long the operator is obligated for water replacement is not stated.
Response: Although the Illinois regulation does not specifically
state that its requirement is for permanent water replacement, the word
``replace'' within the regulation indicates permanency. OSM's
definition of ``Replacement of water supply'' at 30 CFR 701.5 clarifies
that permanent water replacement is required. ``Replacement of water
supply means, with respect to protected water supplies
[[Page 26822]]
contaminated, diminished, or interrupted by coal mining operations,
provisions of water supply on both a temporary and permanent basis
equivalent to premining quantity and quality. Replacement includes
provision of an equivalent water delivery system and payment of
operation and maintenance costs in excess of customary and reasonable
delivery costs for premining water supplies.'' (60 FR 16722, March 31,
1995).
As noted in finding C.15, primacy states, including Illinois, will
be notified pursuant to the provisions of 30 CFR 732.17(d) of the
additional Federal water supply replacement requirements and related
subsidence damage repair requirements that are not currently contained
within their programs. This will include notification of a requirement
for a definition consistent with the Federal definition at 30 CFR 701.5
pertaining to water replacement.
62 IAC 1840.11(h)(2) Inspections by the Department; Abandoned Site
Comment: One commenter believed that Illinois should provide
written notice to the county clerk(s) of the counties affected at the
time public notice was provided of an alternate inspection frequency
for an abandoned site.
Response: The counterpart Federal regulations at 30 CFR
840.11(h)(2) do not contain specific provision for written notice to
the county clerk(s). However, both the Federal regulations at 30 CFR
840.14(c) and the Illinois regulations at 62 IAC 1840.14(c) provide
that copies of all records, reports, inspection materials, and other
subject information or a description of the information will be made
available for public inspection at a Federal, State or local government
office in the county where the mining is occurring. Illinois has
historically sent this type of information to the county clerk(s).
62 IAC 1840.17(a) Review of Decision Not To Inspect or Enforce
Comment 1: The inclusion of a 30-day period in which to file a
request for informal review of a decision not to inspect or enforce is
more restrictive of the right of the public to administrative review
procedures at the state level than is provided by the Secretary's
regulations, and must be disapproved.
Response: To require that requests for a review be filed within a
specified time period assures administrative efficiency in a manner
that is not inconsistent with SMCRA or the Federal regulations. Using
this approach, Illinois can ensure administrative efficiency by setting
a firm deadline for appeals, without undue prejudice to the interests
of citizens who may be adversely affected by decisions not to inspect
or enforce.
Comment 2: In order for this waiver to be fair, an addition to this
section should be added which requires that the citizen be informed by
certified mail that the right to appeal to the director for informal
review must be made within 30 days or that right is waived. Without
this requirement, the citizen could lose a right without that citizen
knowing that their right was lost.
Response: The 30 day period begins when the citizen is notified of
Illinois' decision, which is done by certified mail. Illinois has
indicated that this notification will include language informing the
recipient of the 30-day time period within which to request, or else
waive, the right to informal review. As discussed in finding C.21, the
proposed revision is being approved with the understanding that
notification of the 30-day time period will be included in the notice
of decision not to inspect or enforce and that failure to include the
notification will not limit the right for review.
62 IAC 1840.17(c) Review of Decision Not To Inspect or Enforce; Formal
Review
Comment: Two commenters were concerned how the reference to formal
review under 62 IAC 1847.3 would relate to formal review of a decision
not to inspect or enforce since the current provisions of Sec. 1847.3
pertained to permitting actions. They recommended that the subsection
be rewritten without reference to specific provisions.
Response: Illinois proposed a revision to its regulations at 62 IAC
1847.3 that provides for administrative review of decisions not to
inspect or enforce under 62 IAC 1840.17 (see finding C.21).
62 IAC 1843.23 Enforcement Actions at Abandoned Sites
Comment: This provision does not promulgate a responsive action to
the problems of violators who abandon mining sites. It appears geared
towards allowing the Department to refrain from doing a useless thing,
but does not state the Department's policy in enforcing violations of
State and Federal law at abandoned sites.
Response: The proposed regulation is substantively identical to the
counterpart Federal regulation at 30 CFR 843.22.
62 IAC 1847.3 Administrative and Judicial Review; Hearings
Comment: The inclusion of formal review of decisions not to inspect
or enforce in section 1847.3 is of concern because the section is
triggered by notice to the permit applicant rather than notice to the
party who requested the inspection and enforcement action. The right to
informal and formal review of such decisions, as well as all other
actions of the agency, are triggered by notice to the party rather than
the applicant.
Response: Section 1847.3 is not necessarily triggered by notice to
the permit applicant. The Illinois regulation at 62 IAC 1840.17(b)
requires the Director or his or her designee to inform the person, in
writing, of the results of an informal review of an authorized
representative's decision not to inspect or enforce. OSM has verified
several times over the past years, through its oversight activities,
that these letters are mailed via certified mail to the person who
requested the action. It is the receipt of this decision which triggers
the 30-day time limit within which to request formal review under the
provisions of section 1847.3, as authorized by 62 IAC 1840.17(c).
62 Ill. Adm. Code 1847.3(i), (j); 1847.4(j), (k); 1847.5(m), (n);
1847.6(k), (l); and 1847.7(j), (k) Hearing Officer's Proposed Decision
Comment 1: Two commenters were concerned that written exceptions to
the hearing officer's proposed decision are to be filed with the
hearing officer instead of the Director and that written exceptions and
responses to exceptions are to be filed within 10 rather than 15 days.
Response: As discussed in finding C.24.a.(2), the Federal
regulations specify general adjudicatory provisions that States must
include in their administrative review hearing procedures, but allow
the States discretion in how to implement these provisions. The Federal
regulations contain no comparable provisions for filing of written
exceptions to a proposed decision, filing of responses to written
exceptions, or time limitations for these filings. However, the
proposed revisions are not inconsistent with SMCRA or the Federal
regulations.
Comment 2: One commenter was concerned that the Illinois regulatory
authority might be absolved of the responsibility for administrative
decisions if a hearing officer was allowed to make the decisions.
Response: The Illinois regulations at 62 IAC 1847 provide that the
hearing officer's decision is the Department's final administrative
decision. Pursuant to 62 IAC 1847, final administrative decisions are
subject to judicial review in accordance with the Illinois
[[Page 26823]]
Administrative Review Law (735 ILCS 5/3).
62 IAC 1848.5(f) Notice of Hearing
Comment 1: One commenter was in agreement with the proposed
provisions that would require certain specifications for legal notices
of hearings, but questioned the prohibition in this proposed subsection
against inclusion of hearing notices among other legal notices in the
paper.
Response: The prohibition against inclusion of these hearing
notices in that portion of the paper where legal notices appear is a
statutory prohibition which was requested by Knox County citizens when
section 2.11(c) of the Surface Coal Mining Land Conservation and
Reclamation Act, 225 ILCS 720, was amended in 1993. Neither SMCRA nor
the Federal regulations specify the portion of the newspaper wherein
the public notice of a hearing must appear.
Comment 2: One commenter believed that Sec. 1848.5(f) should
include a provision for notification of the country clerk of the county
affected.
Response: Neither SMCRA nor the Federal regulations require that a
separate notice of an administrative hearing be sent to the county
clerk of the county affected.
Comment 3: One commenter objected to the last sentence of the
provision that was proposed in the original amendment: ``Any deviations
from the requirements of this subsection attributable to the publishing
newspaper shall not be grounds for postponement of continuance of the
hearing, nor will such errors necessitate that the notice be
republished.''
Response: In the revised amendment dated November 1, 1995, Illinois
removed this sentence from Sec. 1848.5(f).
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 (Administrative
Record Nos. IL-1618 and IL-1664). The Natural Resources Conservation
Service (NRCS) commented on March 15, 1995 (Administrative Record No.
IL-1631), that the State should withdraw its proposal to remove the
language ``The state recognizes that the permit cannot be issued
without the required consultation with USDA'' from section
1785.17(d)(1). OSM notes that Illinois withdrew this proposed revision,
and the indicated language was retained.
On June 7, 1995 (Administrative Record No. IL-1657), and July 20,
1995 (Administrative Record No. IL-1661), the Natural Resources
Conservation Service (NRCS) offered comments on the following three
sections:
62 IAC 1816/1817.116(a)(3)(E) NRCS commented that the Service did
not object to the substitution of one year of crop production for one
year of hay production on limited capability lands if the Department
determines the practice is proper management. OSM notes that Illinois
included language in this section which requires such determination
before the substitution can be made.
62 IAC 1816.116(a)(3)(F) NRCS believed the proposed revision was
not specific enough as to the types of activities which would qualify
under this section, the maximum area of disturbance should be
specified, and the term minimal soil disturbance should be defined.
NRCS also commented that they concurred with the State's objective in
proposing the rule. OSM is not approving this rule because it would
exempt areas as large as four acres from any type of revegetation
success testing. OSM does not agree that it would be possible to list
all of the activities that may occur on these small areas. Should the
State of Illinois resubmit language limiting the exemption to a smaller
area, the demonstration required by the operator will have to be more
thoroughly addressed. NRCS also commented that deep tillage should be
required for any areas exempted under this section. OSM believes that
the requirement for deep tillage should be made on a case by case
basis. The State regulatory Authority would make the decision as part
of its determination pertaining to the operator's demonstration.
62 IAC 1816.116(a)(4)(A)(ii). NRCS affirmed its support for the
proposal to include small areas with representative larger fields if
the terms ``representative,'' ``small,'' and ``isolated'' are better
defined. The Service also pointed out the importance of a reliable
sampling method. OSM is not approving this rule because Illinois has
not demonstrated that the test plot would provide a statistically valid
sample at a 90 percent confidence interval.
62 IAC 1816. Appendix A NRCS raised the issue as to whether the
proposal to base yield calculations on pit areas rather than permit
areas would allow operators to ``shop'' for the best standard in terms
of meeting the required yield. OSM had the same concern initially, but
determined that, at any one time, the pit area will be a finite area
defined by specific boundaries and that is the only area upon which
calculations can be based. There can be no shopping. OSM is approving
the change to pit area.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), 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 this amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record Nos. IL-1618 and IL-
1664. EPA responded on February 24, 1995, that ``* * * the definition
of hydric soils in the wetland definition can be interpreted, by some
readers, to mean being inundated greater than 50 percent of the time.
It would be clearer to adopt the definition used by the National
Technical Committee on Hydric Soils and the Food Security Act Manual,
Third Edition: `A soil that is saturated, flooded, or ponded long
enough during the growing season to develop anaerobic conditions in the
upper part.' This would also be consistent with the definition of
hydric soils in the 1987 Corps Wetland Delineation Manual.''
(Administrative Record No. IL-1623).
As discussed in finding C.2, OSM found that the proposed definition
is not inconsistent with SMCRA or the Federal regulations. Illinois
clarified its meaning of hydric soil in the comment section of its
November 1, 1995, revised amendment (Administrative Record No. IL-
1663): ``The explanation of hydric soil appearing in the wetlands
definition is intended only as a supplemental explanation of the term
`hydric soil' in layman's terms and is not intended to be a legal
definition of the term. Any determination of hydric soils would be in
accordance with the technical guidelines of the 1987 Corps Manual * * *
*''
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
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