Illinois Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-093-FOR]

Illinois Abandoned Mine Land Reclamation Plan

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

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the

Illinois abandoned mine land reclamation plan (Illinois plan) under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA ). Illinois

is proposing revisions and additions to the Illinois plan relating to

agency reorganization, legal opinion, definitions, project priorities,

utilities and other facilities, eligible coal lands and water, eligible

non-coal lands and water, project selection, annual grant process,

liens, rights of entry, public participation, bidding requirements and

conditions, contracts, and contractor responsibility. Illinois intends

to revise the Illinois plan to be consistent with the corresponding

Federal regulations and SMCRA and to improve operational efficiency.

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

16, 1998. If requested, we will hold a public hearing on the amendment

on December 11, 1998. We will accept requests to speak at the hearing

until 4:00 p.m., e.s.t. on December 1, 1998.

ADDRESSES: You should mail or hand deliver written comments and

requests to speak at the hearing to Andrew R. Gilmore, Director,

Indianapolis Field Office, at the address listed below.

You may review copies of the Illinois program, the amendment, a

listing of any scheduled public hearings, and all written comments

received in response to this document at the addresses listed below

during normal business hours, Monday through Friday, excluding

holidays. You may receive one free copy of the 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.

Illinois Department of Natural Resources, 524 South Second Street,

Springfield, Illinois 62701-1787.

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

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

[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on Title IV of SMCRA

Title IV of SMCRA established an Abandoned Mine Land Reclamation

(AMLR) program for the purposes of reclaiming and restoring lands and

water resources adversely affected by past mining. This program is

funded by a reclamation fee imposed upon the production of coal. As

enacted in 1977, lands and waters that were mined or affected by mining

and abandoned or left in an inadequate reclamation status before August

3, 1977, and for which there was no continuing reclamation

responsibility under State or Federal

[[Page 63631]]

law, are eligible for reclamation. The AML Reclamation Act of 1990

(Pub. L. 101-508, Title VI, Subtitle A, Nov. 5, 1990, effective Oct. 1,

1991) amended SMCRA, 30 U.S.C. 1231 et. seq., to provide changes in the

eligibility of project sites for AML expenditures. Title IV of SMCRA

now provides for reclamation of certain mine sites where the mining

occurred after August 3, 1977. These include interim program sites

where bond forfeiture proceeds were insufficient for adequate

reclamation and sites affected any time between August 4, 1977, and

November 5, 1990, for which there were insufficient funds for adequate

reclamation due to the insolvency of the bond surety. Title IV provides

that a State with an approved AML Plan has the responsibility and

primary authority to implement the program.

II. Background on the Illinois Plan

On June 1, 1982, the Secretary of the Interior approved the

Illinois plan. You can find background information on the Illinois

plan, including the Secretary's findings, the disposition of comments,

and the approval of the plan in the June 1, 1982, Federal Register (47

FR 23886). You can find later actions concerning the Illinois plan and

amendments to the plan at 30 CFR 913.25.

III. Description of the Proposed Amendment

By letter dated October 22, 1998 (Administrative Record No. IL-

5022), Illinois sent us an amendment to its plan under SMCRA. Illinois

sent the amendment in response to a letter dated September 26, 1994

(Administrative Record No. IL-700-AML), that we sent to Illinois under

30 CFR 884.15(d). The amendment also includes changes made at Illinois'

own initiative. Illinois proposes to amend the narrative and policy

sections of its plan and its regulations at Title 62 Part 2501 and

Title 44 Part 1150 of the Illinois Administrative Code (IAC). Below is

a summary of the changes proposed by Illinois. The full text of the

amendment is available for your inspection at the locations listed

above under ADDRESSES.

A. Changes in the Narrative of the Illinois Abandoned Mine Reclamation

Plan.

1. Introduction

Illinois revised this section to describe the history of the

Illinois Abandoned Mined Lands Reclamation Program, the creation of the

Department of Natural Resources, and the requirements of Title V of the

Surface Mining Control and Reclamation Act of 1977.

2. State Reclamation Plan.

a. General. Illinois reorganized its State reclamation plan.

Illinois also removed references to the Soil Conservation Service (SCS)

and replaced them with references to the Natural Resource Conservation

Service (NRCS).

b. Eligible Coal Lands and Water. Illinois added this section in

response to 30 CFR 874.12(e). Illinois stated that 62 IAC 2501.10,

Eligible Coal Lands and Water, provides the eligibility guidelines that

correspond to this citation.

c. Exclusion of Certain Non-coal Reclamation Sites. Illinois added

this section in response to 30 CFR 875.16. Illinois states that 62 IAC

2501.11, Eligible Non-coal Lands and Water, provides the eligibility

guidelines that correspond to this citation.

d. Authorization by the Governor. Illinois revised this section by

stating that P.A. 81-1020, the Abandoned Mined Lands and Water

Reclamation Act, as amended, contains the Governor's authorization

required by 30 CFR 884.13(a).

e. Legal Opinion. Illinois revised this section by providing a

letter from the chief legal officer of the Department of Natural

Resources as the legal opinion required by 30 CFR 884.13(h).

f. Project Selection. Illinois revised this section by stating that

Sections 2501.7, 2501.8, 2501.10, 2501.11, 2501.13, 2501.16, and

2501.34 of the rules entitled ``Abandoned Mined Lands Reclamation''

provide the guidelines for project selection required by 30 CFR

884.13(c)(2).

g. Coordination of Reclamation Activities. Illinois revised the

existing language in this section by changing the word ``semi-annual''

to ``annual.''

h. Reclamation of Private Land. Illinois revised this section to

include an explanation of language found at 62 IAC 2501.25(b)(2).

i. Public Participation. Illinois revised the public participation

sections for preparation of the original state plan, promulgation of

rules and plan amendments, public participation in the reclamation

program, compliance with Executive Order 12372, and the list of

regional clearinghouses.

j. Administration. Illinois revised the administration section to

reflect the reorganization of the Division of Abandoned Mined Lands

Reclamation, within the Office of Mines and Minerals, Department of

Natural Resources. They also updated the list of other State offices

and agencies.

k. Personnel. Illinois revised the description of its

administrative and management structure and its personnel staffing

policies.

l. Procurement. Illinois removed a paragraph about Section 9.01 of

the Illinois Purchasing Act.

m. Reclamation Activity. Illinois revised the amount of acreage in

need of reclamation and the amount of acreage funded through the

emergency response program. They also added a new paragraph on the

reclamation activity entitled ``Reclamation of Mine Subsidence.''

n. Reports. Illinois added this section as a response to 30 CFR

884.13(f). Illinois states that the Department will submit the OSM-76

Form, or its electronic counterpart, in the Abandoned Mine Land

Inventory System at the time of project completion as 30 CFR 884.13(f)

requires.

o. Priorities. Illinois added this section in response to 20 ILCS

1920/2.03(4). Illinois states that legislative measures will be taken

to ensure compatibility between state statutes and Federal regulations.

B. Changes in 62 IAC 2501

1. Reference Changes

Illinois made the following statutory reference changes throughout

62 IAC 2501: Ill. Rev. Stat. 1991, ch 96\1/2\, pars. 8001.01 et seq.

was changed to 20 ILCS 1920; Ill. Rev. Stat. 1985, ch. 96\1/2\, par.

8001.03(a)(7) was changed to 20 ILCS 1920/1.03(5); Ill. Rev. Stat.

1985, ch. 96\1/2\, par. 8001.01 et seq. was changed to 20 ILCS 1920;

Ill. Rev. Stat. 1991, ch. 127, par. 1001-1 et seq. was changed to 5

ILCS 100; Ill. Rev. Stat. 1989, ch. 96\1/2\, par. 8001.02(a) was

changed to 20 ILCS 1920/1.02; Ill. Rev. Stat. 1989, ch. 96\1/2\, par.

8001.03(a) was changed to 20 ILCS 1920/2.03(a); Ill. Rev. Stat. 1985,

ch. 96\1/2\, par. 8003.05 was changed to 20 ILCS 1920/3.05; Ill. Rev.

Stat. 1989, ch. 96\1/2\, par. 8002.09(b) was changed to 20 ILCS 1920/

2.09; Ill. Rev. Stat. 1983, ch. 96\1/2\, par. 800.04(d) was changed to

20 ILCS 1920/2.04(d); and Ill. Rev. Stat. 1985, ch. 127, pars. 133b1 et

seq. was changed to 30 ILCS 605.

Illinois also made the following title changes throughout 62 IAC

2501: all references to the ``Council'' have been changed to the

``Department''; and all references to ``Soil Conservation Service''

have been changed to ``Natural Resource Conservation Service.''

2. Section 2501.1, Scope

In this section, Illinois removed the existing language and

replaced it with the following:

[[Page 63632]]

This Part implements the Abandoned Mined Lands and Water

Reclamation Act [20 ILCS 1920], which provides that the Department

of Natural Resources shall administer a program for the reclamation

of Abandoned Mined Lands (``AML''). This act is complementary to

Title IV of the federal Surface Mining Control and Reclamation Act

of 1977 (30 U.S.C. 1201 et seq., P.L. 95-87, as amended).

3. Section 2501.4, Definitions

Illinois removed the definition of ``Council,'' added a definition

for ``Department,'' and revised the definition of ``Federal Office.''

4. Section 2501.7, Objectives and Priorities

Illinois removed the language found at section 2501.7(c)(4). They

also added new sections 2501.7(d) and (e) to read as follows:

(d) Generally, projects lower than a priority 2 should not be

undertaken until all known higher priority coal projects either have

been accomplished, are in the process of being reclaimed, or have

been approved for funding by OSM, except in those instances where

such lower priority projects may be undertaken in conjunction with a

priority 1 or 2 site in accordance with OSM's ``Final Guidelines for

Reclamation Programs and Projects'' (61 FR 68777-68785, December 30,

1996).

(e) When the Department finds in writing that the adverse

effects of coal mining practices have an adverse economic impact

upon a community, a project shall be designated as a priority 1 or 2

threat to the general welfare, regardless of the nature of the

problem conditions.

Finally, at Section 2501.7(f), Illinois changed the date by which

the Department may make expenditure obligations on lands mined for

substances other than coal. The date was changed from August 14, 1994,

to August 31, 1999.

5. Section 2501.8, Utilities and Other Facilities

In this new section, Illinois provides guidance on use of AML funds

for water supplies. Section 2501.8(a) allows the Department to use up

to 30 percent of the annual AML funds for the purpose of protecting,

repairing, replacing, constructing, or enhancing facilities relating to

water supplies, including water distribution facilities and treatment

plants, to replace water supplies adversely affected by coal mining

practices. Section 2501.8(b) provides that adverse effects on water

supplies that occurred both before and after August 3, 1977, are

eligible for AML funds, in spite of the criteria specified in Section

2501.10(b), if the Department finds as part of its eligibility opinion

that the adverse effects are caused predominantly by mining processes

undertaken and abandoned before August 3, 1977. Section 2501.8(c)

provides that adverse effects on water supplies that occurred both

before and after the dates (and under the criteria) set forth in

Section 2501.10(d) are eligible for AML funds, notwithstanding the

criteria specified in Section 2501.10(b), if the Department finds as

part of its eligibility opinion that the adverse effects are caused

predominately by mining processes undertaken and abandoned before those

dates. Finally, section 2501.8(d) provides that enhancement of

facilities or utilities includes upgrading to meet any local, State, or

Federal public health or safety requirement. Enhancement does not

include service area expansion not necessary to address a specific

abandoned mine land problem.

6. Section 2501.10, Eligible Coal Lands and Water

In this section, Illinois removed section 2501.10(b) and

redesignated section 2501.10(a) as Section 2501.10. Sections 2501.10

(a)(1) through (3) were redesignated as sections 2501.10(a) through

(c). Illinois added new sections 2501.10(d) through (h) to read as

follows:

(d) Notwithstanding subsections (a), (b) and (c) of this

section, coal lands and waters damaged and abandoned after August 3,

1997 by coal mining processes are also eligible if the Department,

with the concurrence of OSM, finds in writing that:

(1) They were mined for coal or affected by coal mining

processes; and

(A) The mining occurred and the site was left in either an

unreclaimed or inadequately reclaimed condition between August 4,

1977 and June 1, 1982, and any funds for reclamation or abatement

that are available pursuant to a bond or other form of financial

guarantee or from any other source are not sufficient to provide for

adequate reclamation or abatement at the site, or

(B) The mining occurred between August 4, 1977 and November 5,

1990 and the surety of the mining operator became insolvent during

that period, and as of November 5, 1990, funds immediately available

from proceedings relating to insolvency, or from any financial

guarantee or other source, are not sufficient to provide for

adequate reclamation or abatement at the site; and

(2) The site qualifies as a priority 1 or 2 site under Section

2501.7(c) and (e) of this Part.

(e) The Department may expend funds available under subsections

402(g)(1) and (5) of the Surface Mining Control and Reclamation Act

for reclamation and abatement of any site eligible under Subsection

(d) above, if the Department, with concurrence of OSM, makes the

findings required in subsection (d) above and the Department

determines that the reclamation priority of the site is the same or

more urgent that the reclamation priority for the lands and water

eligible pursuant to subsections (a), (b) or (c) above that quality

as a priority 1 or 2 site under Section 403(a) of the Surface Mining

Control and Reclamation Act (30 U.S.C. 1233(a)).

(f) With respect to lands and waters eligible pursuant to

subsection (d) or (e) above, monies available from sources outside

the Abandoned Mine Reclamation Federal Trust Fund or that are

ultimately recovered from responsible parties shall either be used

to offset the cost of the reclamation or transferred to the

Abandoned Mine Reclamation Federal Trust Fund if not required for

further reclamation activities at the permitted site.

(g) If reclamation of a site covered by an interim or permanent

program permit is carried out under the AML program, the permittee

of the site shall reimburse the AML Fund for the cost of reclamation

that is in excess of any bond forfeited to ensure reclamation. The

Department, when performing reclamation under subsection (d) above

shall not be held liable for any violations of any performance

standards or reclamation requirements specified in Title V of the

Federal Act, or in the Surface Coal Mining Land Conservation and

Reclamation Act [225 ILCS 720], nor shall a reclamation activity

undertaken on such lands or waters be held to any standards set

forth in those Acts.

(h) Surface coal mining operations on lands eligible for

remining shall not affect the eligibility of such lands for

reclamation and restoration after the release of the bonds or

deposits posted by any such operation. If the bond or deposit for a

surface coal mining operation on lands eligible for remining is

forfeited, AML funds may be used if the amount of such bond or

deposit is not sufficient to provide for adequate reclamation or

abatement, except that if emergency conditions warrant, the

Department shall immediately exercise its authority under the

Emergency program.

7. Section 2501.11, Eligible Non-Coal Lands and Water

Illinois added this new section to provide reclamation eligibility

guidelines for non-coal lands and water. Non-coal lands and water are

eligible for reclamation activities if they were mined or affected by

mining processes; they were mined before August 3, 1977, and left or

abandoned in either an unreclaimed or inadequately reclaimed condition;

the operator, permittee, or agent of the permittee has no continuing

responsibility for reclamation under statutes of the State or Federal

Government due to bond forfeiture, and the forfeited bond is

insufficient to pay the total cost of reclamation; the Governor agrees

that reclamation is necessary and submits a letter of request to the

Federal Office; it is necessary for the protection of the public health

and safety, general welfare and property; and the lands and water are

not designated for remedial action under the

[[Page 63633]]

Uranium Mill Tailings Radiation Control Act of 1978 or have been listed

for remedial action under the Comprehensive Response Compensation and

Liability Act of 1980.

8. Section 2501.13, Preliminary Project Selection

Illinois revised the language in section 2501.13(a). Currently,

this section requires the Department to select reclamation projects

from an abandoned mine site database that contains all known abandoned

mine sites in the State affected prior to August 3, 1977 and which

contain problem conditions. Illinois revised section 2501.13(a) to

require the Department to select reclamation projects from a database

that contains all known abandoned mine sites in the State which are

eligible under Sections 2501.10 and 2501.11.

In section 2501.13(b), Illinois revised the list of problem

conditions the Department is to use to determine which sites are in the

most need of reclamation. New section 2501.13(b)(9) provides that

flooding of roads or improved property caused by sedimentation from AML

sites is a problem condition. New section 2501.13(b)(10) provides that

hazardous recreational water bodies is a problem condition. Existing

sections 2501.13(b)(9) and (10) were redesignated as sections

2501.13(b)(11) and (12). Finally, Illinois added new section

2501.13(b)(13) to provide that coal refuse material or spoilbanks

adversely affecting lands or water resources is a problem condition.

Illinois made minor wording changes in section 2501.13(c)(3).

9. Section 2501.16, Final Selection and Project Deferment

Illinois revised section 2501.16(a) to require the Department to

select from those abandoned mine sites identified under section 2501.13

projects for reclamation. The Department must base its selection upon

the following criteria and consideration: satisfactory funding levels

to complete reclamation; a complete application from the owner(s) of

property that contains the significant portion of problem conditions on

a site; and evidence that a timely Consent for Entry can be obtained

from the owner(s) of the project site. Finally, Illinois removed

section 2501.16(c).

10. Section 2501.19, Annual Grant Process

Illinois removed the language found in this section and replaced it

with language requiring the Department to submit an annual grant

application to OSM in accordance with the requirements of 30 CFR 886 to

cover allowable costs of the AML program. These allowable costs include

the actual costs of construction, operation and maintenance, planning

and engineering, construction inspection, other necessary

administrative costs, and up to 90 percent of the costs of acquisition

of land. This section also requires the Department to provide copies of

the annual AML grant application to the public upon written request to

the Department. Finally, the Department must circulate notices of

annual AML grant applications through the Illinois State Library System

and the Illinois State Clearinghouse.

11. Section 2501.22, Reclamation Activities

Illinois revised this section to allow the Department to enter into

cooperative agreements, as necessary and appropriate, with any person

or governmental entity to reclaim abandoned land. The cooperative

agreements may concern the furnishing of services, plans, layouts,

materials, or any incidental services needed to reclaim the land. All

parties that enter into a cooperative agreement must agree to comply

with all applicable requirements of State and Federal law.

12. Section 2501.25, Reclamation on Private Lands

Illinois added new language at 2501.25(b)(3) to allow the

Department to waive a lien if it finds, before construction, that the

reclamation work is being undertaken solely to seal, fill, or mark an

open or settled mine shaft, drift or slope entry, adit or other mine

opening or a subsidence pit. In section 2501.25(b)(5), Illinois revised

the existing language to allow landowners to file petitions for a

hearing to determine the increase in market value of reclaimed land.

The landowners are to file the petitions with the Department through

the Director of the Office of Mines and Minerals. At section

2501.25(c)(2), Illinois added language to provide that a reclamation

lien created under Section 2.09 of the State Act will continue to exist

until satisfied, subject only to the 40-year limitation period and the

requirements of Sections 13-118 through 13-121 of the Code of Civil

Procedure [735 ILCS 5/13-118 et seq.]. Finally, Illinois added new

section 2501.25(c)(3) to allow the Department to request appropriate

foreclosure action by the Attorney General to satisfy the lien if the

reclaimed property is transferred for an actual consideration in excess

of the fair market value of the property after reclamation, and the

lien is not satisfied at the time of transfer.

13. Section 2501.28, Rights of Entry

Illinois made minor word changes in section 2501.28(a).

14. Section 2501.40, Public Participation

Illinois added this new section to provide for public participation

in the AML program and projects. Section 2501.40(a) provides that any

interested party may submit information and comments to the Director of

the Department, the Director of the Office of Mines and Minerals, or

the Manager of the AML Division at any time. Section 2501.40(b)

requires that the Department handle verbal and written requests for

information as quickly as possible, and that requests made under the

Freedom of Information Act (5 ILCS 140) be made and handled in

accordance with the generally applicable procedures of the Department

of Natural Resources. Section 2501.40(c) requires the Department to

have available, upon request, copies of the Illinois State Reclamation

Plan for Abandoned Mined Lands, Office of Mines and Minerals Annual and

Bi-Annual Reports, specific project reports, and brochures and program

materials. However, the availability of such reports, brochures and

program materials can not be deemed a waiver of the Department's right

to charge fees for its actual cost of reproducing and certifying public

records requests under the Freedom of Information Act. Further, the

Department may charge fees for its actual cost for providing multiple

copies of free publications. Finally, section 2501.40(d) was added to

read as follows:

(d) The Department shall hold such public meetings as it

determines necessary and appropriate to advise the public of planned

or ongoing AML projects, and to solicit input and participation in

the AML program. Any interested person may request, in writing, that

the Department hold a public meeting in connection with any AML

project or program activity. Upon receipt of a written request to

hold a public meeting, the Department shall contact the landowners

directly involved in the project, as well as the local government

bodies that may be interested. The Department shall schedule a

public meeting if it determines that sufficient public interest

exists to warrant the public meeting.

C. Changes in 44 IAC 1150

1. Reference Changes

Illinois made the following statutory reference changes throughout

44 IAC 1150: Ill. Rev. Stat. 1985, ch. 96\1/2\, pars. 8001.01 et seq.

and Ill. Rev. Stat. 1991, ch.127, par. 1005-75 were changed to

[[Page 63634]]

20 ILCS 1920 and 5 ILCS 100/5-75, respectively.

Illinois made the following title changes throughout 44 IAC 1150:

all references to the ``Abandoned Mined Lands Reclamation Council'' and

``Council'' have been changed to the ``Illinois Department of Natural

Resources'' or ``Department'; all references to ``him'' have been

revised to ``him/her'' or some other gender neutral reference; and all

references to the ``Executive Director'' have been changed to the

``Director of the Office of Mines and Mineral,'' ``Director of the

Department,'' or ``Director,'' as appropriate.

2. Section 1150.10, Purpose

Illinois revised the language in this section to read as follows:

The Abandoned Mined Lands and Water Reclamation Act (``Act'')

[20 ILCS 1920] provides that the Illinois Department of Natural

Resources shall administer a program for the reclamation of

abandoned lands and waters in accordance with the Act. This Part

describes standard procedures for the Department's Office of Mines

and Minerals, Division of Abandoned Mined Lands Reclamation, for

advertising, bidding and awarding contracts for construction on

abandoned mined lands (``AML'') reclamation projects. This Part also

prescribes standard procedures for obtaining the necessary outside

professional services as needed in the administration of the AML

program. The purpose is to prescribe procedures which will implement

the AML program in a way which satisfies the requirements of the

various State of Illinois purchasing laws, as well as federal grant

requirements for funding pursuant to the Surface Mining Control and

Reclamation Act of 1977, as amended (30 USC 1201 et seq.).

3. Section 1150.20, Scope

Illinois removed the first sentence in this section and made minor

word changes.

4. Section 1150.30, Applicability

Illinois removed the existing language in this section, and

replaced it with applicability guidelines for this part and its

subparts. Section 1150.30(a) states that this part applies to all

contracts by the Division of Abandoned Mined Lands Reclamation for

reclamation construction and professional services contracts. Section

1150.30(b) states that subpart B applies to the advertising, bidding

and awarding of contracts for construction on planned reclamation

projects that have been designed in the normal course of the AML

program. Section 1150.30(c) states that subpart C applies to

construction contracts that are needed to minimize emergency conditions

which involve public health and safety danger and cannot wait for

normal program abatement procedures. Finally, section 1150.30(d) states

that subpart D applies to the selection of Consultants to provide

professional services covered by the Architectural, Engineering, and

Land Surveying Qualifications Based Selections Act [30 ILCS 535].

5. Section 1150.100, Definition of Terms

Illinois removed the following definitions: ``Council'' and

``Executive Director.''

Illinois added the following definitions: ``AML''; ``AVS'';

``bid''; ``Department''; ``OSM''; ``subconsultant''; and

``subcontractor.''

Illinois revised the following definitions: ``advertisement'';

``award''; ``Contract''; ``contract bond''; ``Department of

Transportation''; ``equipment''; ``plans''; ``specifications''; and

``proposal.''

6. Section 1150.200, Bidding Requirements and Conditions

Illinois revised section 1150.200(a)(1) to require the Department

of Transportation to prequalify each bidder as provided in 44 Ill. Adm.

Code 650. In section 1150.200(a)(4), Illinois revised the language to

require the Department to send a written Notice of its action to the

Contractor. Minor word changes were made at sections 1150.200(a)(4)(B),

1150.200(a)(4)(H), and 1150.200(a)(4)(K). At section 1150.200(a)(4)(M),

a recommendation from OSM that the contractor is not eligible for an

AML contract under 30 CFR 874.16 is added to the list of grounds for

contractor suspension.

Illinois revised section 1150.200(a)(5) to read as follows:

In all actions suspending a contractor's eligibility to bid on

reclamation project contracts, the Contractor may protest the

Department's action by submitting to the Director of the Department

a written statement of objection setting forth the facts and

circumstances of the action which are alleged to be legally or

otherwise objectionable. The written statement of objection must be

received by the Director within 14 calendar days of the

objectionable action. The Director shall provide the Contractor with

a hearing in accordance with procedures set forth in 17 Ill. Adm.

Code 2530. Notwithstanding the provisions of Sections 2530.320--

2530.350 concerning initiation of proceedings by the Department, the

Contractor shall initiate the proceedings.

In section 1150.200(b)(1), Illinois revised the language to require

the Department to publish notice to bidders and advertisement for bids

in the Illinois Procurement Bulletin once, no less than 14 days before

the bid opening. Section 1150.200(b)(2) was revised to provide that the

Department of Transportation will publish the Illinois Procurement

Bulletin. Finally, at section 1150.200(b)(3), Illinois made minor

wording changes.

In section 1150.200(c)(1), Illinois removed the existing language

and replaced it with language requiring the Department of

Transportation to furnish a proposal form to prequalified, prospective

bidders, stating the location and description of the contemplated

construction, showing the estimate of the various quantities and kinds

of work to be performed and/or materials to be furnished, and having a

schedule of items for which unit bid prices are invited. The proposal

form also will state the time in which the work must be completed, the

amount of the proposal guaranty, labor requirements, and the date, time

and place of the opening of proposals. Finally, the form will include

Special Provisions and requirements that adapt the Standard

Specifications to AML projects and provide for project specific

conditions and requirements.

Illinois revised section 1150.200(g)(1) to read as follows:

The prospective bidder shall, before submitting a bid, carefully

examine the provisions of the contract. The bidder shall inspect in

detail the site of the proposed work, investigate and become

familiar with all the local conditions affecting the contract and

fully acquaint itself with the detailed requirements of

construction. Submissions of a bid shall be a conclusive assurance

and warranty that the bidder has made these examinations and that

the bidder understands all requirements for the performance of the

work. If his/her bid is accepted, the bidder will be responsible for

all errors in the proposal resulting from his/her failure or neglect

to comply with this subsection (g)(1). The Department will, in no

case, be responsible for any costs, expenses, losses, or change in

anticipated profits resulting from such failure or neglect of the

bidder to make these examinations.

Illinois added a new section 1150.200(g)(2) which prohibits bidders

from taking advantage of any error or omission in the proposal and

advertised contract. If bidders want an explanation or interpretation

of the plans, specifications or any contract documents, they may submit

requests in writing to the Supervisor of Project Management. The

requests must allow sufficient time for the Department to respond in

writing to all prospective bidders before submission of their bids. All

responses to bidder requests will be supplied to all prospective

bidders in the form determined by the Department if the Department

determines that the information would aid competition. Oral

explanations, interpretations, or instructions given before the

submission

[[Page 63635]]

of bids unless at a pre-bid conference will not be binding on the

Department.

Illinois made minor word changes in section 1150.200(h) and

1150.200(i)(1). New section 1150.200(i)(2) was added to require bidders

to submit separate proposals on each individual contract if a

combination bid is submitted on two or more proposals. If separate bids

are not submitted, the Department will not consider the combination

bid. If the bidder wants to submit a combination bid, the bidder must

state the amount of the combination bid for the entire combination in

the place provided in the proposal form. Illinois added new section

1150.200(i)(3) to read as follows:

(3) If a combination bid is submitted on any stipulated

combination, and errors are found to exist in computing the gross

sum bid on any one or more of the individual proposals, corrections

shall be made, by the Department and the amount of the combination

bid shall be corrected so that it will be in the same proportion to

the sum of the corrected gross sum bid as the combination bid

submitted was to the sum bid submitted.

The following provisions shall govern combination bidding:

(A) A combination bid which is submitted for 2 or more proposal

and awarded on that basis shall have the bid prorated against each

proposal in proportion to the bid submitted for each proposal.

(B) Separate contracts shall be executed for each individual

proposal included in the combination.

(C) The completion date for all contracts awarded on a

combination bid shall be the latest completion date designated in

any one or more of the contracts included in the combination, unless

otherwise provided in the contracts. The working days for all

contracts awarded on a combination bid shall be the largest number

of working days designated in any one or more of the contracts

included in the combination, unless otherwise provided in the

contracts.

(D) An extension of time for any one or more contracts awarded

on a combination bid shall automatically extend all contracts

awarded on the combination.

(E) In the event the Contractor fails to complete any one or all

of the contracts on the combination bid by the contract completion

date plus any authorized extension, or the contract working days

plus any authorized extension, the liquidated damages shall be

determined from the schedule of deductions for each day of overrun

in contract time as provided in the contract, based on the

combination bid total, and shall be computed on the combination and

prorated against the 2 or more individual contracts based on the

dollar value of each.

(F) The plans and Special Provisions for each separate contract

shall be construed separately for all requirements, except as

described in subsections (a) through (e) above.

Finally, at section 1150.200(m), Illinois removed language

prohibiting a bidder from resubmitting a withdrawn proposal at the same

letting.

7. Section 1150.300, Award and Execution of Contract

At section 1150.300(a)(2), Illinois revised the language to allow

the Department to reject any or all proposals, to waive technicalities,

or to advertise for new proposals if the Department believes that it

will serve the best interests of the Department.

Illinois revised section 1150.300(b)(1) to require the Department

to award the contract within 45 days after the opening of proposals to

the lowest responsible and qualified bidder. The Department must notify

the successful bidder that his/her bid has been accepted and, subject

to sections 1150.300(b) (2) and (3), he/she will be the Contractor. New

section 1150.300(b)(2) states that the State is not bound by a contract

until the Department executes it. The Department may cancel the award

any time before execution in order to protect the public interest and

integrity of the bidding process or for any reason if, in the judgement

of the Department, the best interest of the Department will be served.

Finally, section 1150.300(b)(3) was revised to allow a bidder to

withdraw his/her bid 45 days after the opening of proposals, or the

time specified on the Notice to Bidders.

Illinois added a new section 1150.300(c), entitled ``Notice of

Contract Award,'' to require the Department to publish each and every

contract that is let or awarded in the next available Illinois

Procurement Bulletin.

Illinois revised section 1150.300(d)(1) require the Department to

return the guaranty checks promptly. Section 1150.300(d)(2) was revised

to allow the two lowest bidders to substitute bid bonds for their

guaranty checks after a period of three working days after the date of

opening proposals has elapsed.

Illinois added new section 1150.300(e), entitled ``Applicant

Violator System'' to read as follows:

(1) Under 30 CFR 874.16, every successful bidder for a federally

funded AML contract must be eligible under 30 CFR 773.15(b)(1) at

the time of contract award to receive a permit or conditional permit

to conduct surface coal mining operations. Bidder eligibility must

be confirmed by the federal Office of Surface Mining, Reclamation

and Enforcement's automated Applicant/Violator System (AVS) for each

contract to be awarded.

(2) At the time the successful bidder is notified by letter of

intent that his/her bid will be accepted, the Department will

provide to the bidder an Ownership/Control (``O/C'') information

package. The bidder shall completely fill out the forms and return

the completed forms to the Department. The Department will forward

the completed forms to OSM at the Lexington, Kentucky AVS office for

data entry and compliance check.

(3) All subcontractors who will receive 10% or more of the total

contract funding will also be required to submit an O/C information

package and be subject to the OSM/AVS compliance check, prior to

receiving the Department's approval of subcontractor.

(4) Any contract inspector, selected through a bidding process,

regardless of the percentage of contract funding, will also be

required to submit an O/C information package and be subject to the

OSM/AVS compliance check.

(5) The Department shall deny a contract and cancel the award

upon OSM's recommendation that the successful bidder is not eligible

for an AML contract. The Department shall deny approval of a

subcontractor upon OSM's recommendation that the subcontractor is

not eligible for an AML contract. The Department shall deny an

inspection contract upon OSM's recommendation that the contract

inspector is not eligible for an AML contract.

(6) Any person denied an AML contract or participation in an AML

funded project, shall appeal the decision and recommendation of OSM

directly to OSM. Appeal should be made to establish eligibility for

future AML projects. The Department will not delay a project pending

appeal. The Department's role in the AVS compliance check process is

ministerial and does not involve exercise of independent judgement

or review of OSM's decision and recommendation. The Department shall

not be responsible for any damages sustained by any person by reason

of OSM's determination as to eligibility for AML contracts.

(7) After a Contractor, subcontractor, or contract inspector has

once submitted an O/C information package and has been entered into

the AVS in connection with an AML project, the Department may, in

connection with subsequent projects, provide dated AVS printouts

reflecting the information submitted and the current AVS

recommendation, along with an AML Contractor O/C Data Certification

form. The Contractor, subcontractor, or contract inspector shall

complete and submit the certification in place of the O/C

information package, in the same manner as provided above.

(8) Any potential AML Contractor, subcontractor or contract

inspector may submit O/C information directly to OSM and the

Lexington AVS Office, to predetermine eligibility for AML contracts.

Illinois removed the existing language at section 1150.300(f) and

replaced it with language requiring the Contractor to furnish a

performance and payment bond with good and sufficient sureties in the

full amount of the contract as the penal sum to the Department. The

surety shall be acceptable to the Department, shall waive notice of any

changes and extensions of time, and shall submit its bond on the form

furnished by the Department.

[[Page 63636]]

8. Section 1150.400, Contracts Involving Expenditures of $30,000.00 or

Less

Illinois revised this section to allow the Department to waive the

prequalification and bidding requirements of Section 1150.300 when the

reclamation project expenditures are $30,000.00 or less.

9. Section 1150.500, Emergency Contracting

In section 1150.500(b)(1), Illinois made minor word changes. This

section requires the Department to maintain a list of prequalified

contractors for the type of construction work encountered in AML

Emergency reclamation projects. Illinois proposes to add language

requiring the Department to include on this list those contractors who

have demonstrated responsibility and competence through past

performance on AML Emergency reclamation projects. Finally, Illinois

removed the word ``prequalified'' from the remaining text in this

section and replaced it with the word ``listed.''

10. Section 1150.700, Applicability

Illinois revised this section to state that this subpart applies to

all architectural, engineering, or land surveying professional services

provided to the Department under a contract. This section does not

apply to those services covered by the Architectural, Engineering, and

Land Surveying Qualifications Based Selections Act [30 ILCS 535] and

related services that may be performed by persons not required to be

licensed under the Illinois Architecture Practice Act of 1989 [225 ILCS

305]; the Professional Engineering Practice Act of 1989 [225 ILCS 325];

the Structural Engineering Licensing Act of 1989 [225 ILCS 340]; or the

Illinois Professional Land Surveyor Act of 1989 [225 ILCS 330].

11. Section 1150.800, Prequalification

Illinois removed the existing language in this section and replaced

it with language requiring the Department of Transportation to

prequalify all architectural, engineering, or land surveying

consultants wanting to provide services to the Department of Natural

Resources relating to the AML program.

12. Section 1150.900, Subcontracting

Illinois removed the existing language in this section and replaced

it with the following:

(a) Professional Services Consultants may subcontract no more

than 50 percent of the project work.

(b) The Professional Services contract shall include the names

and addresses of all subconsultants and the anticipated amount of

money which they will receive pursuant to the contract [30 ILCS 505/

9.04].

(c) If at any time a Professional Services Consultant who had

not intended to utilize the services of a subconsultant, decides to

utilize a subconsultant, the Department and the Consultant shall

file an amendment to the original contract with the Comptroller

stating the names and addresses of all subconsultants and the

anticipated amount of money which they will receive pursuant to the

original contract [30 ILCS 505/9.04].

13. Section 1150.1000, Requests for Proposals

In this section, Illinois removed the existing language and

replaced it with language requiring a selection committee, consisting

of the Director of the Office of Mines and Mineral, the Manager of the

AML Reclamation Division, and the Supervisor of the Project Management

Section, or their designees, to select firms to provide architectural,

engineering, and land surveying services on AML reclamation projects.

When evaluating the proposals, the committee must take into

consideration the following qualification factors: the ability of

professional personnel; the past record and experience on AML projects

and projects with similar professional disciplinary requirements; the

firm's performance data on file; the willingness of the firm to meet

time requirements; the location of the Consultant's office in relation

to the project site and the Department's AML office that will be

managing the project; the workload of the consultant; and any other

qualifications based on factors that the Department may determine in

writing are applicable on a project specific basis. The committee must

also assign knowledgeable technical staff to provide preliminary

technical review, as necessary and appropriate, to assure that all

project considerations are taken into account. Formal and informal

submissions of verbal and written estimates of costs or proposals in

terms of dollars, hours required, percentage of construction cost, or

any other measure of compensation may not be solicited before the

committee selects a firm for negotiation. Finally, the committee can

conduct discussions and require public presentations by the

Consultants, deemed to be the most qualified, regarding their

qualifications, approach to the project, and ability to furnish the

required services.

14. Section 1150.1200, Selection Procedure

Illinois removed the existing language in this section, and

replaced it with guidelines for selecting a consultant to provide

architectural, engineering, and land surveying services on AML

reclamation projects. Section 1150.1200(a) requires the committee to

select, on the basis of evaluations, discussions and any presentations,

at least three qualified Consultants to provide services for the

project. The Consultants must be ranked in order of qualifications, and

the committee must contact the Consultant ranked most preferred to

negotiate a contract for fair and reasonable compensation. Section

1150.1200(b) provides that if less than three Consultants submit

letters of interest and are determined to be qualified, the Department

may proceed to contract negotiation as described in section

1150.1200(a). Section 1150.1200(c) states that the decision of the

Department shall be final and binding. Finally, section 1150.1200(d)

requires the Department to publish each and every contract awarded by

the Department in the next available Illinois Procurement Bulletin.

15. Section 1150.1300, Contract Negotiations

The existing language in this section was removed and replaced with

the following:

(a) The Department shall prepare a written description of the

scope of the proposed services, entitled ``Scope of Work,'' to be

used as a basis for negotiations and shall negotiate a contract with

the highest ranked qualified Consultant at a compensation that the

Department determines in writing to be fair and reasonable. In

making this decision, the Department shall take into account the

estimated value, scope, complexity, and professional nature of the

services to be rendered.

(b) If the Department is unable to negotiate a satisfactory

contract with the Consultant that is most preferred, negotiations

with that Consultant will be terminated. The Department shall then

begin negotiations with the next ranked Consultant. If the

Department is unable to negotiate a satisfactory contract with that

Consultant, negotiations with that Consultant shall be terminated.

The Department shall then begin negotiations with the next ranked

Consultant.

(c) If the Department is unable to negotiate a satisfactory

contract with any of the selected Consultants, the Department shall

re-evaluate the architectural, engineering, or land surveying

services requested, including the estimated value, scope,

complexity, and fee requirements. The Department shall then compile

a second list of not less than three qualified Consultants and

proceed in accordance with the provisions of the Subpart.

[[Page 63637]]

(d) A Consultant negotiating a contract with the Department

shall negotiate any approved subcontracts for architectural,

engineering, and land surveying services at compensation that the

Consultant determines in writing to be fair and reasonable based

upon a written description of the proposed services of the

subconsultant.

16. Section 1150.1325, Exemptions

Illinois added this new section to provide that the provisions of

Sections 1150.1000, 1150.1100, and 1150.1200 of this Part do not apply

to architectural, engineering, and land surveying contracts of less

than $25,000. The provisions also do not apply to the procurement of

these services by the Department when the Department determines in

writing that it is in the best interests of the State to proceed with

the immediate selection of a firm, or in emergencies when immediate

services are necessary to protect the public health, safety and general

welfare from the adverse effects of mining.

17. Section 1150.1350, Firm Performance Evaluations

Illinois added this new section to require the Department to

evaluate the performance of each consultant upon completion of a

contract. The evaluation must be made available to the Consultant when

he/she requests it. The Consultant may respond in writing to the

evaluation, and the evaluation and response must be retained solely by

the State. The evaluation and response cannot be made available to any

other person or firm and is exempt from disclosure under the Freedom of

Information Act [54 ILCS 140].

IV. Public Comment Procedures

Under the provisions of 30 CFR 884.15(a), we are requesting

comments on whether the amendment satisfies the applicable State

reclamation plan approval criteria of 30 CFR 884.14. If we approve the

amendment, it will become part of the Illinois plan.

Written Comments

Your written comments should be specific and pertain only to the

issues proposed in this rulemaking. You should explain the reason for

any recommended change. In the final rulemaking, we will not

necessarily consider or include in the Administrative Record any

comments received after the time indicated under DATES or at locations

other than the Indianapolis Field Office.

Public Hearing

If you wish to speak at the public hearing, contact the person

listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on

December 1, 1998. We will arrange the location and time of the hearing

with those persons requesting the hearing. If you are disabled and need

special accommodation to attend a public hearing, contact the

individual listed under FOR FURTHER INFORMATION CONTACT. The hearing

will not be held if no one requests an opportunity to speak at the

public hearing.

You should file a written statement at the time you request the

hearing. This will allow us to prepare adequate responses and

appropriate questions. The public hearing will continue on the

specified date until all persons scheduled to speak have been heard. If

you are in the audience and have not been scheduled to speak and wish

to do so, you will be allowed to speak after those who have been

scheduled. We will end the hearing after all persons scheduled to speak

and persons present in the audience who wish to speak have spoken.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. If you wish

to meet with us to discuss the amendment, request a meeting by

contacting the person listed under FOR FURTHER INFORMATION CONTACT. All

such meetings are open to the public and, if possible, we will post

notices of meetings at the locations listed under ADDRESSES. We also

make a written summary of each meeting a part of the Administrative

Record.

V. Procedural Determinations

Executive Order 12866

The Office of Management and Budget (OMB) exempts this rule from

review 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 and Tribal abandoned mine land reclamation plans and revisions

since each plan is drafted and promulgated by a specific State or

Tribe, not by OSM. Decisions on proposed abandoned mine land

reclamation plans and revisions submitted by a State or Tribe are based

on a determination of whether the submittal meets the requirements of

Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Part 884.

National Environmental Policy Act

This rule does not require an environmental impact statement since

agency decisions on proposed State and Tribal abandoned mine land

reclamation plans and revisions are categorically excluded from

compliance with the National Environmental Policy Act (42 U.S.C. 4332)

by the Manual of the Department of the Interior (516 DM 6, appendix 8,

paragraph 8.4B(29)).

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 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. In making the

determination as to whether this rule would have a significant economic

impact, the Department relied upon the data and assumptions in the

analyses for the corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies under 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: November 6, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 98-30545 Filed 11-13-98; 8:45 am]

BILLING CODE 4310-05-P