Illinois Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-094-FOR]

Illinois Regulatory Program

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

Interior.

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

on proposed amendment.

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SUMMARY: OSM is announcing receipt of revisions to and explanatory

information for a previously proposed amendment to the Illinois

regulatory program (Illinois program) under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). The revisions concern areas

unsuitable for surface coal mining operations, permitting, violation

information, impoundments, explosives, revegetation, and administrative

and judicial review. Illinois intends to revise its program to be

consistent with the corresponding Federal regulations and SMCRA, to

clarify existing regulations, and to improve operational efficiency.

DATES: We will accept written comments until 4:00 p.m., e.s.t.,

December 1, 1998.

ADDRESSES: You should mail or hand deliver written comments to Andrew

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

below.

You may review copies of the Illinois program, the proposed

amendment, 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 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. Internet:

[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Illinois Program

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

approved the Illinois program. You can find background information on

the Illinois program, including the Secretary's findings, the

disposition of comments, and the conditions of approval in the June 1,

1982, Federal Register (47 FR 23883). You can find later actions

concerning the Illinois program at 30 CFR 913.15, 913.16, and 913.17.

II. Discussion of the Proposed Amendment

By letter dated February 26, 1998 (Administrative Record No. IL-

5009), Illinois sent us an amendment to revise its regulations in

response to letters dated January 6 and June 17, 1997 (Administrative

Record Nos. IL-1951 and IL-2000, respectively), that we sent to

Illinois under 30 CFR 732.17(c) and in response to required program

amendments at 30 CFR 913.16. Illinois also proposed to amend its

program to clarify existing regulations. We announced receipt of the

proposed amendment in the April 6, 1998, Federal Register (63 FR 16719)

and invited public comment on its

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adequacy. The public comment period ended May 6, 1998.

During our review of the amendment, we identified concerns relating

to 62 IAC 1773.15(c)(11), written findings for permit application

approval; 62 IAC 1778.14(c), required information in permit

application; 62 IAC 1816.116 and 1817.116, revegetation standards; 62

IAC 1816.117(c)(3) and 1817.117(c)(3), tree and shrub vegetation; 62

IAC 1847.3, hearings; 62 IAC 1847.3(g), burden of proof for permit

hearings; 62 IAC 1847.9(g), burden of proof for bond release hearings;

and editorial errors in various regulations. We notified Illinois of

these concerns on June 2, 1998 (Administrative Record No. IL-5019). By

letter dated November 5, 1998 (Administrative Record No. Il-IL-5025),

Illinois sent us a revised amendment package. Illinois proposed the

following changes to its amendment.

1. General

Illinois corrected typographical errors, punctuation, citation

references, and other editorial-type errors throughout the amended

regulations. Illinois also simplified its use of numbers: for example,

in 62 IAC 1701.5. Appendix A, in the definition of ``Head-of-hollow

fill,'' a reference to ``twenty (20) degrees'' was changed to ``20

degrees''; in 62 IAC 1761.12(c), references to ``one hundred (100)

feet'' were changed to ``100 feet''; in 62 IAC 1773.15(a), a reference

to ``sixty (60) days'' was changed to ``60 days''; in 62 IAC

1774.11(a)(1), a reference to ``five (5) years'' was changed to ``five

years''; and in 62 IAC 1800.40, a reference to ``sixty (60) percent''

was changed to ``60%.''

2. 62 IAC 1761.12 Procedures for Areas Designated by Act of Congress

In section 1761.12(b)(2), Illinois proposes to replace the

reference to ``Section 1761.11(a), (f) or (g)'' with a reference to

``Section 1761.11(a)(6) and (7).''

3. 62 IAC 1764 State Processes for Designating Areas Unsuitable for

Surface Coal Mining Operations

In section 1764.15(a), Illinois added the heading ``Processing of

Petitions''; and in section 1764.15(c), Illinois added the heading

``Land Report and Public Comment.''

4. 62 IAC Part 1773 Requirements for Permits and Permit Processing

Illinois removed its reference to 1816.116(a)(2)(B) and

1816.117(a)(2)(B) at 62 IAC 1773.15(c)(11) and added the following

provision for written findings at 62 IAC 1773.15(c)(13):

(13) For a proposed remining operation where the applicant

intends to reclaim in accordance with the requirements of 62 Ill.

Adm. Code 1816.116(a)(2)(B) or 1817.116(a)(2)(B), the site of the

operation is land eligible for remining as defined in 62 Ill. Adm.

Code 1701. Appendix A.

5. 62 IAC Part 1774.13 Permit Revisions

At 1774.13(b)(3), Illinois is changing a reference from

``1773.19(b)'' to ``1773.19(a)(3)(A) and (C).''

6. 62 IAC 1778.14 Violation Information

At 62 IAC 1778.14(c), Illinois proposes to replace its currently

proposed introductory language with the following language:

(c) A list of all violation notices received by the applicant

during the three-year period preceding the application date, and a

list of all outstanding violation notices received prior to the date

of the application by any surface coal mining operation that is

deemed or presumed to be owned or controlled by the applicant under

the definition of ``owned or controlled'' and ``owns or controls''

in 62 Ill. Adm. Code 1773.5. For each notice of violation issued

pursuant to 62 Ill. Adm. Code 1843.12 or under a Federal or State

program for which the abatement period has not expired, the

applicant shall certify that such notice of violation is in the

process of being corrected to the satisfaction of the agency with

jurisdiction over the violation. For each violation notice reported,

the list shall include the following information, as applicable:

7. 62 IAC Part 816 Permanent Program Performance Standards for Surface

Mining Activities and 62 IAC Part 817, Permanent Program Performance

Standards for Underground Mining Operations

a. At 62 IAC 1816.49(a)(3)(B) and 1817.49(a)(3)(B), concerning

impoundments, Illinois proposes to replace the reference to ``Practice

Standard 378, Ponds, April 1987'' with a reference to ``Practice

Standard IL 278, Ponds, June 1992.''

b. At 62 IAC 1816.66(d), relating to explosives, Illinois added the

heading ``Proximity to buildings and other facilities.''

c. Illinois added the following new revegetation provision at 62

IAC 1816.116(a)(2)(G) and 1817.116(a)(2)(G):

(G) Other Management Practices:

The Department shall approve the use of deep tillage for prime

farmland and high capability land as a beneficial practice that will

not restart the five year period of responsibility, if the following

conditions are met:

(i) The Permittee has submitted a request to use the practice

and has identified the field that will be deep tilled;

(ii) One or more hay crops, or other acceptable row crops, have

been grown or will be grown to dry out the subsoil prior to deep

tilling the field; and

(iii) The Department has determined that the use of deep tillage

will be beneficial to the soil structure and long term crop

production of the field and the benefits will continue well beyond

the responsibility period.

The Department shall notify the permittee in writing of its

decision. Such written notice shall be in the form of an inspection

report or other document issued by the Department.

Illinois proposed the above provision to replace a provision at 62

IAC 1816.116(a)(2)(F)(i) and 1817.116(a)(2)(F)(i) that also concerned

deep tillage. We had disapproved the provision at 62 IAC

1816.116(a)(2)(F)(i) and 1817.116(a)(2)(F)(i) on May 29, 1996 ( 61 FR

26801). By letter dated June 15, 1998 (Administrative Record No. IL-

5024), Illinois submitted explanatory information and supporting

documentation for consideration of the above proposed provision.

d. Illinois proposes to delete the following language from 62 IAC

1816.116(a)(4)(ii):

The Department may approve a field to represent non-contiguous

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

determines that the field is representative of reclamation of such

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

as the representative field.

e. Illinois proposes to withdraw the revisions currently proposed

for 62 IAC 1816.117(c)(3) and 1817.117(c)(3) that would have limited

the number of plots needed to sample tree or shrub areas to 200 for

areas of 50 acres or more.

8. 62 IAC Part 1847 Administrative and Judicial Review

a. Illinois proposes the following revised language for 62 IAC

1847.3(g)(2):

(2) In all other proceedings held under this Section, the party

seeking to reverse the Department's decision shall have the burden

of proving by a preponderance of evidence that the Department's

decision is in error.

b. Illinois proposes the following revised language for 62 IAC

1847.9(g):

(g) Burden of proof. The party seeking to reverse the

Department's proposed release of bond shall have the burden of

proving by a preponderance of the evidence that the Department's

decision is in error.

III. Public Comment Procedures

We are reopening the comment period on the proposed Illinois

program amendment to provide you an opportunity to reconsider the

adequacy of the proposed amendment in light of the additional materials

sent to us. Under the provisions of 30 CFR 732.17(h), we are requesting

comments on whether the amendment satisfies the program approval

criteria of 30 CFR

[[Page 63630]]

732.15. If the amendment is approved, it will become part of the

Illinois program.

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. We may not consider in the final rulemaking or

include in the administrative record any comments we receive after the

close of the comment period (see DATES) or at locations other than the

Indianapolis Field Office.

IV. 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 conducted the reviews required by

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

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 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

This rule does not require an environmental impact statement since

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

decisions on 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. Therefore, 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: November 6, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 98-30546 Filed 11-13-98; 8:45 am]

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