Illinois Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-081-FOR]

Illinois Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is approving a proposed amendment to the Illinois

permanent regulatory program (hereinafter referred to as the ``Illinois

program'') pursuant to the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). This amendment provides that areas revegetated

following the removal of temporary structures such as sedimentation

ponds, roads, and small diversions are not subject to a revegetation

responsibility period and bond liability period separate from that of

the permit area or increment thereof served by such facilities. The

amendment is intended to clarify ambiguities in the State regulations

and to improve operational efficiency.

EFFECTIVE DATE: October 22, 1997.

FOR FURTHER INFORMATION CONTACT:

Andrew R. Gilmore, Director, Indianapolis Field Office, Office of

Surface Mining Reclamation and Enforcement, Minton-Capehart Federal

Building, 575 North Pennsylvania Street, Room 301, Indianapolis, IN

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 June 22, 1992 (Administrative Record No. IL-1192),

Illinois submitted a proposed program amendment consisting of revisions

to a number of its approved regulations. OSM announced receipt of the

proposed amendment in the August 18, 1992, Federal Register (57 FR

37127) and, in the same notice, opened the public comment period and

provided opportunity for a public hearing on the adequacy of the

proposed amendment. The public comment period ended on September 17,

1992. Since no one requested an opportunity to testify at a public

hearing, the hearing scheduled for September 14, 1992, was canceled.

By letter dated April 27, 1993 (Administrative Record No. IL-1207),

Illinois submitted revisions to its proposed amendment in response to

concerns raised by OSM in letters dated September 2, 1992, and October

2, 1992 (Administrative Record Nos. IL-1204 and IL-1205, respectively),

and in response to comments received from other governmental agencies

and individuals. OSM announced receipt of the revised amendment in the

May 17, 1993, Federal Register (58 FR 28804) and, in the same notice,

reopened the public comment period and again provided an opportunity

for a public hearing. The public comment period closed on June 16,

1993. As with the previous submittal, no one requested an opportunity

to testify at a public hearing; therefore, the hearing scheduled for

June 11, 1993, was canceled.

OSM subsequently announced its decision on most provisions of the

proposed amendment in the September 3, 1993, Federal Register (58 FR

46845). However, in the same document, OSM stated at 58 FR 46849-50

(finding 11(c)) and 30 CFR 913.15(o)(4) that it was deferring a

decision on the proposed revisions to sections 1816.116(a)(2)(C) and

1817.116(a)(2)(C) of title 62 of the Illinois Administrative Code (IAC)

until additional opportunity for public comment was provided in a

separate Federal Register document. That commitment was fulfilled by

the notice published on September 15, 1993 (58 FR 48333), which

reopened the public comment period until October 15, 1993. This notice

also included similar proposed revisions to the Kentucky and Ohio

regulations as well as a discussion of OSM's proposed policy concerning

restart of the revegetation responsibility period every time a small

portion of the permit area requires reseeding or replanting.

Subsequently, in the May 29,

[[Page 54766]]

1996, Federal Register (61 FR 26792), OSM approved similar proposed

revisions to the Colorado regulations, based on the adoption of the

proposed OSM policy published on September 15, 1993 (58 FR 48333).

Only Illinois' proposed revisions are under consideration in this

final rule document. The Kentucky and Ohio proposals will be addressed

in a separate final rule document. Since no one requested an

opportunity to testify at a public hearing, no hearing was held.

The amendment revises two regulations defining normal husbandry

practices and other activities that will not restart the liability

period. It also includes a document explaining how the State intends to

interpret and implement these rules. This policy document specifies

that Illinois will consider the reseeding of areas from which temporary

features such as sedimentation ponds, roads, and diversions have been

removed after vegetation is established on the surrounding area to be

non-augmentative.

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

deferred revisions at 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C)

and the accompanying policy document that explains how the State

intends to implement these rules.

A. OSM's policy concerning the term of liability for reclamation of

roads and temporary sediment control structures. As outlined in the May

29, 1996, Federal Register (61 FR 26792), OSM has adopted the policy

published for comment in the September 15, 1993, Federal Register (58

FR 48333). Section 515(b)(20) of SMCRA provides that the revegetation

responsibility period shall commence ``after the last year of augmented

seeding, fertilizing, irrigation, or other work'' needed to assure

revegetation success. In the absence of any indication of Congressional

intent in the legislative history, OSM interprets this requirement as

applying to the increment or permit area as a whole, not individually

to those lands within the permit area upon which revegetation is

delayed solely because of their use in support of the reclamation

effort on the planted area. As implied in the preamble discussion of 30

CFR 816.46(b)(5), which prohibits the removal of ponds or other

siltation structures until two years after the last augmented seeding,

planting of the sites from which such structures are removed need not

itself be considered an augmented seeding necessitating an extended or

separate liability period (48 FR 44038-44039, September 26, 1983).

The purpose of the revegetation responsibility period is to ensure

that the mined area has been reclaimed to a condition capable of

supporting the desired permanent vegetation. Achievement of this

purpose will not be adversely affected by this interpretation of

section 515(b)(20) of SMCRA since (1) the lands involved are relatively

small in size and either widely dispersed or narrowly linear in

distribution and (2) the delay in establishing revegetation on these

sites is due not to reclamation deficiencies or the facilitation of

mining, but rather to the regulatory requirement that ponds and

diversions be retained and maintained to control runoff from the

planted area until the revegetation is sufficiently established to

render such structure unnecessary for the protection of water quality.

In addition, the areas affected likely would be no larger than

those which could be reseeded (without restarting the revegetation

period) in the course of performing normal husbandry practices, as that

term is defined in 30 CFR 816.116(c)(4) and explained in the preamble

to that rule (53 FR 34636, 34641; September 7, 1988; 52 FR 28012,

28016; July 27, 1987). Areas this small would have a negligible impact

on any evaluation of the permit area as a whole. Most importantly, this

interpretation is unlikely to adversely affect the regulatory

authority's ability to make a statistically valid determination as to

whether a diverse, effective permanent vegetative cover has been

successfully established in accordance with the appropriate

revegetation success standards. From a practical standpoint, it is

usually difficult to identify precisely where such areas are located in

the field once revegetation is established in accordance with the

approved reclamation plan.

The above discussion of the rules in 30 CFR Part 816, which applies

to surface mining activities, also pertains to similarly or identically

constructed section in 30 CFR Part 817, which applies to underground

mining activities.

B. Comparison of Illinois' policy with OSM's policy clarification.

Illinois' policy document specifies that the State will consider

limited reseeding and associated fertilization and liming of areas

where features such as sediment ponds, roads, and small diversions have

been removed as non-augmentative on agricultural and non-agricultural

lands where the area is small in relation to the watershed of the area.

The statement also stipulates that any minor reseeded area be

revegetated under approved plans and that vegetation be fully

established at the time of final bond release. Illinois' reference to

roads in its statement is interpreted by OSM to mean those roads

necessary for maintenance of sediment ponds, diversions, and

reclamation areas. Ancillary roads used for maintenance do not include

haul roads or other primary roads which should either have been removed

upon completion of mining or approved to be retained for an approved

postmining land use. On April 11, 1997 (Administrative Record No. IL-

1243). OSM discussed the above interpretation of roads with Illinois.

Illinois agreed with OSM's interpretation of the meaning of the term

``roads'' as used in its policy document.

Because Illinois' policy document stipulates that these small

reclaimed areas must be revegetated under approved plans, the policy

ensures that the vegetation of these areas would be subject to

Illinois' counterparts to the Federal regulations at 30 CFR 816.111 and

those portion of Illinois' counterparts to the Federal regulations at

30 CFR 816.116 related to the attainment of the postmining land use.

Illinois' policy requirement that vegetation on these small areas be

fully established at the time of final bond release would tend to

discourage the removal of ponds, roads, or diversions toward the end of

the liability period for the surrounding area. If removal of the

structures occurs toward the end of the liability period for the larger

reclaimed area, the areas where the ponds or diversions existed would

not qualify for final bond release until diverse, effective, and

permanent vegetative cover is established that meets the standards of

Illinois' counterpart to 30 CFR 816.111.

Although Illinois' policy document is primarily concerned with the

definition of normal husbandry practices, the term ``non-augmentative''

is used in reference to the removal of sediment ponds, roads, and small

diversions that were used in support of reclamation. OSM interprets

this to mean Illinois considers removal of these structures as non-

augmentative, but not as a normal husbandry practice. OSM agrees that

removal of such structures, while being non-augmentative, in not a

normal husbandry practice.

Based on the above discussion, the Director finds that Illinois'

policy is consistent with and no less effective than the Federal

regulations at 30 CFR 816.46(b) (5) and (6), 816.150(f)(6), and

sections 515(b) (19) and (20) of SMCRA,

[[Page 54767]]

as clarified by OSM in the September 15, 1993, Federal Register (58 FR

48333).

C. Removal of Required Regulatory Program Amendment 30 CFR

913.16(o). In the December 13, 1991, Federal Register (56 FR 64986),

OSM placed required regulatory program amendment 30 CFR 913.16(o) on

the Illinois program. It required Illinois to either submit revisions

to 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C) to require OSM

approval of all normal husbandry practices other than those

specifically listed in its approved program or delete the provisions

providing Illinois with the authority to approve unspecified husbandry

practices. By letter dated June 22, 1992 (Administrative Record No. IL-

1192), Illinois submitted proposed changes to its program. As part of

these revisions, at 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C),

Illinois proposed to revise its revegetation standards by specifying

normal husbandry practices for the State. These included approved

agricultural practices described in the Illinois Agronomy Handbook and

those practices which are part of an approved conservation plan subject

to the Food, Agriculture, Conservation and Trade Act of 1990 (7 U.S.C.

1421 et seq.). The Illinois Agronomy Handbook is published by the

University of Illinois--Cooperative Extension Service, Office of

Agricultural Communications and Education. It includes recommended

fertility management practices for row crops and hayland, which are

tailored for site specific soil conditions; crop rotation practices;

tillage practices; and application practices on unmined land in

Illinois.

Subsequently, by letter dated April 27, 1993 (Administrative Record

No. IL-1207), Illinois submitted revisions to its proposed amendment in

response to issue letters prepared by OSM on September 2, and October

2, 1992 (Administrative Record Nos. IL-1204 and IL-1205, respectively),

and in response to comments received from other agencies and

individuals. Included in these revisions was the policy document in

which Illinois explained how it would determine what are normal

husbandry practices and how it would judge management practices on

mined land against the recommended agricultural management practices

and soil conservation practices of the referenced documents.

These proposed revisions, which were approved in the September 3,

1993, Federal Register (58 FR 46849), and the policy document satisfy

required regulatory program amendment 30 CFR 913.16(o). Therefore, the

Director is taking this opportunity to remove it from the Illinois

program.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on Illinois' policy document and OSM's proposed

policy.

Comments were received from the Illinois Department of Mines and

Minerals (now the Illinois Department of Natural Resources--Office of

Mines and Minerals), the Kentucky Coal Association, the Kentucky

Resources Council, the Lignite Energy Council, the National Coal

Association, and the North Dakota Public Service Commission. Except for

the Kentucky Resources Council, all of the commenters were in favor of

the policy.

In response to the Director's proposed clarification of OSM policy,

the Kentucky Resources Council initiates its comments with the premise

that OSM has proposed to treat the initial seeding and restoration of

areas disturbed by diversions, roads and sedimentation ponds as

``normal husbandry practices.'' It then argues that the initial seeding

of such areas is not normal husbandry practice, and any revegetation

other than ``husbandry practices'' as defined by 30 CFR 816.116(c)(4)

constitutes ``augmented seeding'' and would therefore require extension

of the full liability period for the establishment of permanent

vegetation. First, the Director did not base not restarting the

liability period on the contention that revegetation of such areas is a

normal husbandry practice. Second, the Director does not agree that any

revegetation other than ``normal husbandry practices'' constitutes

``augmented seeding.'' The legislative history of the Act reveals no

specific Congressional intent in the use of the term ``augmented

seeding.'' Accordingly, OSM's interpretation of augmented seeding is

given deference so long as it has a rational basis. OSM would not

consider the seeding of small areas, such as ponds and their associated

diversions and roads, as augmented seeding. For further discussion of

such rationale, see the Director's Finding A. Under the proposed

Illinois, Kentucky, and Ohio amendments, areas reclaimed following

removal of temporary structures such as sedimentation ponds and

associated structures and roads would not be subject to a separate or

extended bond liability period apart form the applicable permit area

served by such structures. The seeding of sedimentation ponds and their

associated diversions and roads is not the result of reclamation

failure, but because 30 CFR 816.46(b)(5) prohibits the removal of

temporary sedimentation ponds until two years after the last augmented

seeding.

The Kentucky Resources Council overlooks the fact that for the vast

majority of the reclaimed area the revegetation responsibility period

will be at least five years. Neither Congressional history nor the

language of the statute distinguishes between initial overall

reclamation of a mined area and the subsequent restoration of temporary

structures like sedimentation ponds and maintenance roads. In the

absence of such distinction, the Secretary is delegated discretion to

determine whether a proposed state amendment is no less effective than

the Act and consistent with the counterpart Federal regulation. The

Director's stated interpretation of Section 515(b)(20) is that it

applies ``to the increment or permit area as a whole, not individually

to those lands within that area upon which revegetation is delayed

solely because of their use in support of the reclamation effort of the

planted area.'' See 58 FR 48333, September 15, 1993.

OSM has taken a consistent position in approving an amendment to

the Colorado surface mining program which provided that reclaimed

temporary drainage control facilities shall not be subject to the

extended liability period for revegetative success or the related bond

release criteria (61 FR 26792, May 29, 1996). The Director, therefore,

does not agree with the commenter's interpretation of Section

515(b)(20) of SMCRA.

Because no one requested an opportunity to speak at a public

hearing, no hearing was held.

Federal Agency Comments

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

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Illinois program. Comments were

received from the U.S. Forest Service and the U.S. Bureau of Mines. The

U.S. Forest Service commented that it had reviewed OSM's proposed rule

to clarify its policy towards revegetation and agreed with the proposed

rule.

The U.S. Bureau of Mines suggested that OSM consider the

significant differences in the reclamation of sediment structures and

roads, since sediment structures generally possess characteristics

necessary for successful reclamation, while roads generally require

significant initial work to

[[Page 54768]]

develop a necessary growth environment. OSM agrees with the commenter.

OSM's policy and Illinois' regulations and policy document require that

when such structures are removed, the land on which they were located

must be regraded and revegetated in accordance with approved plans and

the requirements of 30 CFR 816.111 through 816.116, or state

counterparts. Because the Illinois policy will be limited to small

areas, roads posing significant potential for reclamation problems will

be excluded.

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.). The

deferred provision from Illinois proposed amendment did not pertain to

air or water quality standards. Therefore, OSM did not request the

EPA's concurrence.

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

proposed amendment from the EPA (Administrative Record No. IL-1225). It

responded on October 18, 1993 (Administrative Record No. IL-1231), that

it concurred without comment.

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 on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record Nos.

IL-1226 and IL-1228). Neither the SHPO and ACHP responded to OSM's

request.

V. Director's Decision

Based on the above finding, the Director approves Illinois'

regulations at 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C) and its

policy document as submitted on June 22, 1992, and as revised on April

27, 1993.

The Federal regulations at 30 CFR Part 913, codifying decisions

concerning the Illinois program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

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

SMCRA.

VI. Procedural Determinations

Executive Order 12866

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

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

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

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

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

State regulatory programs and program amendments since each such

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

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

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

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

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

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

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

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

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

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies pursuant to the Unfunded Mandates

Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a

cost of $100 million or more in any given year on local, state, or

tribal governments or private entities.

List of Subjects in 30 CFR Part 913

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 3, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 913 is amended

as set forth below:

PART 913--ILLINOIS

1. The authority citation for part 913 continues to read as

follows:

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

2. Section 913.15 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 913.15 Approval of Illinois regulatory program amendments.

* * * * *

[[Page 54769]]

----------------------------------------------------------------------------------------------------------------

Citation/

Original amendment submission date Date of final publication description

----------------------------------------------------------------------------------------------------------------

* * * * * *

*

June 22, 1992................................ October 22, 1997............................ 62 IAC

1816.116(a)(2)(C);

1817.116(a)(2)(C);

Non-augmentation

Policy Statement.

----------------------------------------------------------------------------------------------------------------

Sec. 913.16 [Amended]

3. Section 913.16 is amended by removing and reserving paragraph

(o).

[FR Doc. 97-27982 Filed 10-21-97; 8:45 am]

BILLING CODE 4310-05-M