Illinois Regulatory Program Amendment

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL 089-FOR]

Illinois Regulatory Program Amendment

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

Interior.

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

on proposed amendment.

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SUMMARY: OSM is announcing receipt of a request and additional

explanatory information for its reconsideration of two regulations

disapproved in a previously 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). The disapproved regulations concern the determination of

revegetation success for non-contiguous surface disturbance areas less

than or equal to four acres. The additional explanatory information is

intended to clarify the regulations by specifying procedures and

evaluation criteria that would be used in the implementation of the

regulations.

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

7, 1998.

ADDRESSES: Written comments should be mailed or hand delivered to

Andrew R. Gilmore, Director, Indianapolis Field Office at the address

listed below.

Copies of the Illinois program, the proposed amendment, the

additional explanatory information, and all written comments received

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

at the addresses listed below during normal business hours, Monday

through Friday, excluding holidays. Each requester may receive one free

copy of the proposed amendment by contacting OSM's Indianapolis Field

Office.

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,

Indiana, 46204-1521, Telephone: (317) 226-6700. Illinois Department of

Natural Resources, Office of Mines and Minerals, 524 South Second

Street, Springfield, Illinois, 62701-1787, Telephone: (217) 782-4970.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,

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

SUPPLEMENTARY INFORMATION:

I. Background on the Illinois Program

II. Discussion of the Proposed Amendment

III. Public Comment Procedures

IV. 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.

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 and at its own initiative.

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

1995, Federal Register (60 FR 19522), and invited public comment on its

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

hearing was requested, and it was held on March 24, 1995, as scheduled.

OSM identified concerns relating to the proposed amendment, and

notified Illinois of these concerns by letters dated April 28 and

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

respectively). By letter

[[Page 67015]]

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 amendment. OSM reopened the

public comment period in the December 5, 1995, Federal Register (60 FR

62229). The public comment period closed on January 4, 1996. OSM

approved the proposed amendment with certain exceptions and additional

requirements on May 29, 1996 (61 FR 26801).

II. Discussion of the Proposed Amendment

By letter dated August 5, 1997 (Administrative Record No. IL-1670),

Illinois requested that OSM reconsider its May 29, 1996, disapproval of

the following regulatory language at 62 IAC 1816.116(a)(3)(F) and

1817.116(a)(3)(F).

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

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

boreholes, power poles, stockpiles and substations shall be

considered successfully revegetated if the operator can demonstrate

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

subsoil remains in place, the soil has been returned to its original

capability and the area is supporting its approved post-mining land

use at the end of the responsibility period.

In its letter of August 5, 1997, Illinois provided explanatory

information to clarify the regulatory language by specifying the

procedures and evaluation criteria that would be used in the

implementation of the regulations. By letters dated September 26 and

November 3, 1997 (Administrative Record Nos. IL-1671 and IL-1672),

Illinois provided additional explanatory information. Following is a

summary of these procedures and evaluation criteria:

1. Illinois proposed to interpret the regulatory language of 62 IAC

1816.116(a)(3)(F) and 1817.117(a)(3)(F) as follows:

Non-contiguous, surface disturbance areas, with an approved land

use of cropland or pasture/hayland, less than or equal to four acres

which have:

1. Minor soil disturbances from activities such as signs,

boreholes, power poles, stockpiles and substations;

2. The majority of the subsoil remains in place; and

3. Were not affected by coal or toxic material handling, may use

the following procedures for determination of revegetation success,

in lieu of Section (a)(4).

(i) The operator must document the required three criteria of

(F) above have been met.

(ii) The affected area is successfully supporting its approved

post mining land use when compared to the similar, adjacent

unaffected areas at the end of the responsibility period.

The Department will evaluate areas requested by the operator,

using qualified individuals, and determine them successfully

revegetated, if it finds subsection (i) and (ii) have been met.

2. Illinois would differentiate the minor disturbances into three

main types: (1) Areas where topsoil was left in place, usually less

than .25 areas, (2) areas where topsoil was removed and stockpiled and

the subsoil was left in place, usually less than one acre, and (3)

areas where the topsoil was removed and stockpiled and portions of the

area were excavated for foundations or for shaft construction, usually

four acres or less.

3. Illinois would ensure all non-toxic contaminants are either

prevented from mixing with the subsoil or are adequately removed

without significant loss of the in-place subsoil.

4. Illinois would require at a minimum the area to be tilled with

an agricultural subsoiler, preferably before topsoil replacement. In

the event of poor crop performance on areas being evaluated, Illinois

will require tillage to greater depths as deemed appropriate, based on

timing, soil handling techniques, and equipment used for reclamation.

5. Illinois would assess the success of the area by the

determination the area is supporting is postmining use and there were

no observable differences between these areas and adjacent unaffected

areas. All determinations of the success of these small areas would be

done by qualified individuals experienced in the field of agronomy and

soils. The evaluation of the crop would be done near the time of the

harvest of the crop grown. The observation would be done for a minimum

of two years of the responsibility period, excluding the first year. No

phase III bonds would be released before the fifth year of the

responsibility period.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Illinois

program amendment to provide the public an opportunity to reconsider

the adequacy of the proposed amendment in light of the additional

materials submitted. In accordance with the provisions of 30 CFR

732.17(h), OSM is seeking comments on whether the proposed amendment

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

the amendment is deemed adequate, it will become part of the Illinois

program.

Written Comments

Written comments should be specific, pertain only to the issues

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

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Indianapolis Field Office

will not necessarily be considered in the final rulemaking or included

in the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This proposed rule is exempted from review by the Office of

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

Planning and Review).

Executive Order 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.)

[[Page 67016]]

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

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

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

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: December 12, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 97-33430 Filed 12-22-97; 8:45 am]

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