Illinois Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-097-FOR]

Illinois Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule; withdrawal of a previously proposed amendment

and public comment period and opportunity for public hearing for a new

proposed amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is announcing the withdrawal of a previously proposed amendment and the

receipt of a new amendment to the Illinois regulatory program (Illinois

program) under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). Illinois is replacing its previously proposed amendment dated

November 24, 1998, with a new amendment dated August 2, 1999. Both

amendments include changes to Illinois' regulations to reflect changes

required by the Energy Policy Act of 1992 regarding repair or

compensation for material damage caused by subsidence from underground

coal mining operations and replacement of drinking, domestic, and

residential water supplies that have been adversely impacted by

underground coal mining operations. The new amendment also includes

revisions to and additions of regulations concerning performance bond

adjustment; siltation structures; impoundments; hydrologic balance;

disposal of noncoal mine wastes; revegetation; backfilling and grading;

prime farmland; and State inspections. Illinois intends to revise its

program to be consistent with the corresponding Federal regulations, to

provide additional safeguards, to clarify ambiguities, and to improve

operational efficiency.

This document gives the times and locations that the Illinois

program and the new amendment to that program are available for your

inspection, the comment period during which you may submit written

comments on the amendment, and the procedures that we will follow for

the public hearing, if one is requested.

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

September 16, 1999. If requested, we will hold a public hearing on the

amendment on September 13, 1999. We will accept

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requests to speak at the hearing until 4:00 p.m., e.s.t. on September

1, 1999.

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, Minton-Capehart Federal Building, 575 North

Pennsylvania Street, Room 301, Indianapolis, IN 46204, Telephone: (317)

226-6700.

Illinois Department of Natural Resources, Office of Mines and Minerals,

Land Reclamation Division, 300 W. Jefferson Street, Suite 300,

Springfield, IL 62701, 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. Withdrawal of Proposed Amendment

By letter dated November 24, 1998 (Administrative Record No. IL-

5028), Illinois sent us an amendment to its program under SMCRA.

Illinois proposed to amend its regulations concerning repair or

compensation for material damage caused by subsidence from underground

coal mining operations and replacement of drinking, domestic, and

residential water supplies that have been adversely impacted by

underground coal mining operations. We announced receipt of the

proposed amendment in the December 10, 1998, Federal Register (63 FR

68218) and invited public comment on its adequacy. The public comment

period ended January 11, 1999. During our review of the amendment, we

identified issues concerning Illinois' policy for implementing the

proposed regulations. Illinois' implementation policy appeared to

contain requirements and exemptions that were not specified in the

regulation language. We met with Illinois on February 22, 1999, to

discuss our findings. On April 1, 1999, we notified Illinois of

additional concerns (Administrative Record No. IL-5042). On August 2,

1999, Illinois sent us a new amendment that responds to our concerns

and reflects the April 27, 1999, decision by the U.S. Court of Appeals

for the District of Columbia Circuit regarding the March 31, 1995,

Federal regulations relating to subsidence (National Mining Ass'n v.

Babbitt, 98-5320, D.C. Cir. 1999). The new amendment replaces Illinois'

amendment dated November 24, 1998. Therefore, we are withdrawing the

proposed amendment announced in the December 10, 1998, Federal

Register.

III. Description of the Proposed Amendment

By letter dated August 2, 1999 (Administrative Record No. IL-5044),

the Illinois Department of Natural Resources (Department) sent us a new

amendment to the Illinois program under SMCRA. The Department sent the

amendment in response to our letters dated May 20, 1996, June 17, 1997,

and January 15, 1999 (Administrative Record Nos. IL-1900, IL-2000, and

IL-5036, respectively), that we sent to Illinois under 30 CFR

732.17(c). The amendment also includes changes made at the Department's

own initiative. The Department proposes to amend Title 62 of the

Illinois Administrative Code (IAC). Below is a summary of the changes

proposed by the Department. The full text of the amendment is available

for your inspection at the locations listed above under ADDRESSES.

A. Subsidence Repair or Compensation and Water Replacement

On March 31, 1995, OSM promulgated rules to implement new section

720 of SMCRA. Section 720, which took effect on October 24, 1992, as

part of the Energy Policy Act of 1992, Public Law 102-486, 206 Stat.

2776, requires all underground coal mining operations conducted after

October 24, 1992, to promptly repair or compensate for material damage

caused by subsidence to noncommercial buildings and occupied

residential dwellings and related structures. It also requires the

replacement of drinking, domestic, and residential water supplies that

have been adversely impacted by underground coal mining operations

conducted after that date. By letter dated May 20, 1996, under 30 CFR

732.17(c), we notified Illinois to amend its program to be no less

effective than the changes which resulted from the enactment of section

720 of SMCRA and the promulgation of implementing Federal regulations

on March 31, 1995 (Administrative Record No. IL-1900). In response to

this notification, Illinois proposed the following changes to its

regulations:

1. 62 IAC 1701. Appendix A--Definition of Drinking, Domestic or

Residential Water Supply

Illinois proposes to add the following definition for ``drinking,

domestic or residential water supply'':

``Drinking, domestic or residential water supply'' means water

received from a well or spring and any appurtenant delivery system

that provides water for direct human consumption or household use.

Wells and springs that serve only agricultural, commercial or

industrial enterprises are not included except to the extent the

water supply is for direct human consumption or human sanitation, or

domestic use.

2. 62 IAC 1701. Appendix A--Definition of Material Damage

Illinois proposes the following definition for ``material damage'':

``Material damage,'' in the context of 62 Ill. Adm. Code 1784.20

and 62 Ill. Adm. Code 1817.121 means:

Any functional impairment of surface lands, features, structures

or facilities;

Any physical change that has a significant adverse impact on the

affected land's capability to support any current or reasonably

foreseeable uses or causes significant loss in production or income;

or

Any significant change in the condition, appearance or utility

of any structure or facility from its pre-subsidence condition.

3. 62 IAC 1701. Appendix A--Definition of Replacement of Water Supply

Illinois proposes to define ``replacement of water supply'' as

follows:

``Replacement of water supply'' means, with respect to protected

water supplies contaminated, diminished, or interrupted by coal

mining operations, provision of water supply on both a temporary and

permanent basis equivalent to premining quantity and quality.

Replacement includes provision of an equivalent water delivery

system and payment of operation and maintenance costs in excess of

customary and reasonable delivery costs for premining water

supplies.

Upon agreement by the permittee and the water supply owner, the

obligation to pay such operation and maintenance costs may be

satisfied by a one-time payment in an amount which covers the

present worth of

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the increased annual operation and maintenance costs for a period

agreed to by the operator and the water supply owner.

If the affected water supply was not needed for the land use in

existence at the time of loss, contamination or diminution, and if

the supply is not needed to achieve the postmining land use,

replacement requirements may be satisfied by demonstrating that a

suitable alternative water source is available and could feasibly be

developed. If the latter approach is selected, written concurrence

must be obtained from the water supply owner.

4. 62 IAC 1784.14 Hydrologic Information--Underground Mining Permit

Applications

a. Illinois revised subsection (b)(1) by adding the word

``shadow.'' This subsection now requires the permit application to

contain the location and ownership for the permit, shadow and adjacent

area of existing wells, springs, and other ground water resources,

seasonal quality and quantity of ground water and water usage.

b. Illinois revised subsection (b)(1)(A)(i) by adding the phrase

``for the permit area and its adjacent area.'' For the permit area and

its adjacent area, the revised subsection requires that ground water

quality descriptions include pH, total dissolved solids, hardness,

alkalinity, acidity, sulfates, total iron, total manganese, and

chlorides.

c. Illinois added new subsection (b)(1)(A)(ii) to require that

ground water quality descriptions include, at a minimum:

for the shadow area and its adjacent area, pH, total dissolved

solids, total iron and total manganese. The Department shall allow

the measurement of specific conductance in lieu of total dissolved

solids if the permittee develops site-specific relationships

precisely correlating specific conductance to total dissolved solids

for specific sites for all zones being monitored.

d. Illinois revised subsection (b)(1)(B) by adding the phrase ``for

the permit, shadow and adjacent areas.'' The revised subsection

requires ground water quantity descriptions for the permit, shadow and

adjacent areas to include, at a minimum, rates of discharge or usage

and elevation of the potentiometric surface in the coal to be mined. It

also requires this information for each water bearing stratum above the

coal to be mined and in each water bearing stratum which may be

potentially impacted below the coal to be mined.

e. Illinois added the following new provision at subsection

(e)(3)(D) to require that the determination of the probable hydrologic

consequences include the following finding:

Whether the underground mining activities conducted after

January 19, 1996 may result in contamination, diminution or

interruption of a well or spring in existence at the time the permit

application is submitted and used for domestic, drinking, or

residential purposes within the permit, shadow or adjacent areas.

5. 62 IAC 1784.20 Subsidence Control Plan--Underground Mining Permit

Applications

a. Illinois removed the introductory paragraph of 62 IAC 1784.20

and added its substantive provisions to subsections (a) and (b).

b. Subsection (a) is entitled ``Pre-subsidence survey.'' Subsection

(a)(1) requires the permit application to include a map of the permit,

shadow and adjacent areas at a scale of 1:12,000 or larger if

determined necessary. The map must show the location and type of

structures and renewable resource lands that subsidence may materially

damage or for which the value or reasonably foreseeable use may be

diminished by subsidence. It must also show the location, depth and

type of drinking, domestic and residential water supplies that could be

contaminated, diminished or interrupted by subsidence.

c. Subsection (a)(2) requires the permit application to include a

narrative indicating whether subsidence, if it occurred, could cause

material damage to or diminish the value or reasonably foreseeable use

of such structures or renewable resource lands or could contaminate,

diminish, or interrupt drinking, domestic, or residential water

supplies.

d. Subsection (b) contains the requirements for a subsidence

control plan. If the Department agrees, the applicant does not have to

provide further information if the survey shows that: (1) No structures

or protected water supplies or renewable resource lands exist; or (2)

no material damage or diminution in value or reasonably foreseeable use

of such structures or lands exist and no contamination, diminution, or

interruption of such water supplies would occur as a result of mine

subsidence. The application must include a subsidence control plan if

the survey shows that structures, renewable resource lands or water

supplies exist and that: (1) Subsidence could cause material damage or

diminution in value or reasonably foreseeable use of structures; or (2)

contamination, diminution, or interruption of protected water supplies;

or (3) if the Department determines that damage, diminution in value or

foreseeable use or contamination, diminution, or interruption could

occur.

e. Existing subsection (a) was recodified as subsection (b)(1) and

the reference to ``other extraction methods'' was removed.

f. Existing subsection (b) was recodified as subsection (b)(2) and

revised to require the map of underground workings to identify all

areas where measures described in subsections (b)(4), (b)(5) and (b)(7)

will be taken to prevent or minimize subsidence and subsidence-related

damage and, when applicable, to correct subsidence-related material

damage.

g. Existing subsection (c) was recodified as subsection (b)(3) and

revised to require the pre-subsidence survey to include a description

of the physical conditions, such as depth of cover, seam thickness and

lithology of overlying and underlying strata. It also requires a

description of geotechnical stability parameters that affect the

likelihood or extent of subsidence and subsidence related damage or

potential underground mining impacts on ground water supplies.

h. Existing subsection (d)(5) was recodified as subsection (b)(4)

and revised to require a description of the monitoring, if any, needed

to determine the commencement and degree of subsidence so that, when

appropriate, other measures can be taken to prevent, reduce or correct

material damage in accordance with 62 Ill. Adm. Code 1817.121(c).

i. Existing subsection (d) was recodified as subsection (b)(5). It

requires a detailed description of the subsidence control measures for

those areas where planned subsidence is not projected to be used.

Existing subsections (d) (1) through (3) were recodified as subsections

(b)(5) (A) through (C) without change. Existing subsection (d)(4) was

recodified as subsection (b)(5)(D) and revised to require the

description of the subsidence control measures to include those

measures to be taken on the surface to prevent or minimize material

damage or diminution in value of the surface. New subsection (b)(5)(E)

requires a description of the geotechnical and engineering analysis of

the mining geology and geometry, percent extraction, and historic

performance to substantiate a stable subsidence control plan.

j. Existing subsection (e) was recodified as subsection (b)(6)

without change.

k. Existing subsection (f) was removed.

l. New subsection (b)(7) was added for those areas where unplanned

subsidence is projected to be used. It requires the subsidence control

plan to

[[Page 44677]]

include a description of procedures to determine the quantity and

quality of drinking, domestic and residential water supplies in

accordance with 62 Ill. Adm. Code 1817.121(a)(2), if impacts could

reasonably be expected to cause material damage. The applicant may

request an exemption from conducting surveys of protected water

supplies if the applicant can demonstrate that material damage

resulting from underground mining is not likely to occur. The

demonstration must be based on site specific geotechnical information,

stability design, and historical performance provided in subsections

(b)(3) and (b)(5).

m. For those areas where planned subsidence is projected to be

used, new subsection (b)(8)(A) requires the subsidence control plan to

include a description of the methods to be used to minimize damage from

planned subsidence to structures and facilities; or the written consent

of the owner of the structure or facility that minimization measures

not be taken; or, unless the anticipated damage would constitute a

threat to health or safety, a demonstration that the costs of

minimizing damage exceed the anticipated costs of repair. New

subsection (b)(8)(B) requires a description of procedures to determine

the condition of structures and facilities and the quantity and quality

of drinking, domestic and residential water supplies, if impacts could

reasonably be expected to cause material damage. If the applicant can

demonstrate that material damage resulting from underground mining is

not likely to occur, the applicant may request an exemption from

conducting structure condition surveys and/or surveys of drinking,

domestic and residential water supplies required by 62 Ill. Adm. Code

1817.121(a)(2). The demonstration must be based on site specific

geotechnical information, stability design and historical performance

provided under subsections (b)(3) and (b)(6).

n. New subsection (b)(9) requires a description of the measures to

be taken in accordance with 62 Ill. Adm. Code 1817.41(j) and

1817.121(c) to replace adversely affected protected water supplies or

to mitigate or remedy any subsidence related material damage to the

land and protected structures. At subsection (b)(9)(A) the applicant

must provide procedures to determine the existence and degree of

material damage or diminution of value or foreseeable use of the

surface, structures and facilities, or water quality and quantity. The

procedures must address resolution of disputes between the landowner

and the permittee over the existence, amount, level or degree of

damage, such as third party arbitration. At subsection (b)(9)(B), the

applicant must provide a plan for determining an appropriate present

worth amount and describe how to resolve disputes between the landowner

and the applicant over this amount, such as third party arbitration.

o. Existing subsection (g) was recodified as subsection (b)(10)

with only editorial changes.

6. 62 IAC 1817.41 Hydrologic Balance Protection

Illinois proposes to add the following new provision at 62 IAC

1817.41(j):

Drinking, domestic or residential water supply. The permittee

must promptly replace any drinking, domestic or residential water

supply that is contaminated, diminished or interrupted by

underground mining activities conducted after January 19, 1996, if

the affected well or spring was in existence before the date the

Department received the permit application for the activities

causing the loss, contamination or interruption. The baseline

hydrologic information required in 62 Ill. Adm. Code 1780.21 and

1784.14 and the geologic information concerning baseline hydrologic

conditions required in 62 Ill. Adm. Code 1780.22 and 1784.22 will be

used to determine the impact of mining activities upon the water

supply.

7. 62 IAC 1817.121 Subsidence Control

Illinois changed the word ``operator'' to ``permittee'' throughout

this section and proposed the following changes:

a. At section 1817.121(a), Illinois added the heading ``Measures to

prevent or minimize damage''; numbered the existing language in the

first sentence as subsection (a)(1); and removed the last sentence.

b. New subsection (a)(2) requires that based on the requirements of

62 Ill. Adm. Code 1784.20(b)(7) and (b)(8), the permittee must perform

a survey of the condition of all structures and facilities that may be

materially damaged or for which the reasonably foreseeable use may be

diminished by subsidence. The permittee must also perform a survey of

the quantity and quality of all drinking, domestic, and residential

water supplies within the permit area, subsidence shadow area, and

adjacent area that could be contaminated, diminished, or interrupted by

subsidence. The applicant must pay for any technical assessment or

engineering evaluation used to determine the pre-mining condition or

value of such structures and facilities and the quantity and quality of

drinking, domestic, or residential water supplies. The applicant must

provide copies of the survey and any technical assessment or

engineering evaluation to the property owner.

c. Subsection (a)(2)(A) requires the permittee to perform or

schedule the condition survey of structures and facilities a minimum of

120 days prior to undermining. A lesser time may be approved by the

Department if justified by the permittee in writing. The permittee must

provide a copy of the condition survey to the property owner and

maintain a copy that must be provided to the Department upon request.

The permittee must provide the Department with verification that the

survey has been completed and forwarded to the property owner.

d. Subsection (a)(2)(B) requires the permittee to complete the

survey of drinking, domestic and residential water supplies 120 days

prior to the water delivery system being undermined. A lesser time may

be approved by the Department if justified by the permittee in writing.

The permittee must provide a copy of the water survey to the property

owner and to the Department.

e. At new subsection (a)(3), if a permittee employs mining

technology that provides for planned subsidence in a predictable and

controlled manner, the permittee must take necessary and prudent

measures, consistent with the mining method employed, to minimize

material damage to the extent technologically and economically feasible

to structures and facilities. Measures to minimize material damage are

not required: (1) If the permittee has the written consent of the

owners of the structures and facilities; or (2) unless the anticipated

damage would constitute a threat to health or safety, the costs of such

measures exceed the anticipated costs of repair.

f. Subsection (a)(4) provides that nothing in this Part prohibits

the standard method of room-and-pillar mining.

g. The substantive language of subsection (b) was not changed.

h. At subsection (c), Illinois added the heading ``Repair of

damage.''

i. At subsection (c)(1), Illinois added the heading ``Repair of

damage to surface lands'' and made minor language changes.

j. At subsection (c)(2), Illinois added the heading ``Repair or

compensation for damage to structures and facilities.'' Illinois also

revised subsection (c)(2) to require the permittee to promptly repair

or compensate the owner for material damage resulting from subsidence

caused to any structure or facility that existed at the time of the

coal extraction under or adjacent to the materially damaged structure.

If the repair option is selected, the permittee must fully

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rehabilitate, restore or replace the damaged structure. If compensation

is selected, the permittee must compensate the owner of the damaged

structure for the full amount of the decrease in value resulting from

the subsidence-related damage. The permittee may provide compensation

by the purchase, before mining, of a non-cancelable premium-prepaid

insurance policy. These requirements apply only to subsidence-related

damage caused by underground coal extraction conducted after February

1, 1983.

k. Existing subsection (c)(3) was removed. New subsection (c)(3)

provides requirements for adjustment of the performance bond amount

when subsidence-related material damage to protected land, structures

or facilities occur or when contamination, diminution, or interruption

to a water supply occurs. The Department must require the permittee to

obtain additional performance bond in the amount of the estimated cost

of the repairs if the permittee will be repairing, or in the amount of

the decrease in value if the permittee will be compensating the owners,

or in the amount of the estimated cost to replace the protected water

supply if the permittee will be replacing the water supply. The

additional performance bond must remain in force until the repair,

compensation, or replacement is completed. If repair, compensation, or

replacement is completed within 90 days of the occurrence of damage, no

additional bond is required. This time frame may be extended, but not

to exceed one year, if the permittee demonstrates that subsidence is

not complete, that not all probable subsidence-related material damage

has occurred to lands or protected structures, or that not all

reasonable anticipated changes have occurred affecting protected water

supplies. The permittee may also use appropriate terms and conditions

for liability insurance to assure that the financial responsibility to

comply with subsection (c) is in place.

l. Illinois removed the last sentence of subsection (g).

8. Policy and Justification for Subsidence Repair and Water Replacement

Regulations

The amendment includes a letter and a side-by-side comparison of

the proposed subsidence-related regulations and the counterpart Federal

regulations to supplement Illinois changes concerning subsidence repair

and water replacement. The letter discusses:

(1) What operations must perform pre-mining structure condition

surveys. Applicable changes: 62 IAC 1784.20 (a)(1), (b)(3),

(b)(5)(E), (b)(8) and 1817.121 (a)(2) and (a)(2)(A);

(2) What operations must perform pre-mining water quality and

quantity surveys. Applicable changes: 62 IAC 1784.20 (a)(1), (b)(3),

(b)(5)(E), (b)(7), (b)(8) and 1817.121 (a)(2) and (a)(2)(B);

(3) When should specific water surveys be required. Applicable

changes: 62 IAC 1784.14 (b)(1), (e)(3)(D), 1784.20 (a)(1), (b)(7),

(b)(8), (b)(9) and 1817.121 (a)(2) and (a)(2)(B);

(4) Where are condition surveys to be kept. Applicable change:

62 IAC 1817.121(a)(2)(A);

(5) Where is water quality and quantity survey information to be

kept. Applicable change: 62 IAC 1817.121(a)(2)(B).

(6) How will compensation for water replacement costs be

managed. Applicable change: 62 IAC 1784.20(b)(8)(B).

B. Siltation Structures, Impoundments, Banks, Dams, and Embankments

By letters dated June 17, 1997, and January 15, 1999, under 30 CFR

732.17(c), we notified Illinois that changes to the Illinois

regulations relating to siltation structures, impoundments, banks,

dams, and embankments were needed to be no less effective than the

changes that were made to the Federal regulations on October 20, 1994

(59 FR 53022). In the October 20, 1994, rulemaking, OSM included

standards from the U.S. Department of Agriculture, Soil Conservation

Service Technical Release No. 60 (210-VI-TR60, Oct. 1985) as part of

the Federal requirements for siltation structures and impoundments.

These changes were made as the result of decisions by the U.S. District

Court of the District of Columbia in In Re: Permanent Surface Mining

Regulation Litigation (II), No. 79-1144 (D.D.C. July 15, 1985) and In

Re: NWF v. Lujan, No. 88-3345 (D.D.C. August 30, 1990). In response to

this notification, Illinois proposed the following changes to its

regulations:

1. 62 IAC 1780.25 (Surface Mining) and 1784.16 (Underground Mining)

Reclamation Plan: Siltation Structures, Impoundments, Banks, Dams, and

Embankments

a. Illinois removed all references to sedimentation ponds and added

references to siltation structures. Illinois also revised all outdated

citation references.

b. Illinois added the following new language at the beginning of

subsections (a)(2):

Impoundments meeting the Class B or C criteria for dams in the

U.S. Department of Agriculture, Soil Conservation Service Technical

Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and

Reservoirs,'' Technical Release No. 60 (TR-60) shall comply with the

requirements of this section for structures that meet or exceed the

size or other criteria of the Mine Safety and Health Administration

(MSHA).

c. Illinois revised the introductory language of subsections (a)(3)

to read as follows:

Each detailed design plan for a structure not included in

subsection (a)(2) above shall:

d. Illinois revised subsections (f) to require that each plan under

subsections (b), (c), and (e) include a stability analysis if the

structure meets the Class B or C criteria for dams in TR-60 or meets

the size or other criteria of 30 CFR 77.216(a).

2. 62 IAC 1816.46 (Surface Mining Operations) and 1817.46 (Underground

Mining Operations) Hydrologic Balance: Siltation Structures

Illinois removed the existing language from subsections (c)(2) and

added the new language shown below. The only difference between the

surface mining language and the underground mining language is a

citation reference. We placed the citation reference for underground

mining operations in brackets.

Spillways. A sediment pond shall include either a combination of

principal and emergency spillways or single spillway configured as

specified in section 1816.49(a)(9) [1817.49(a)(9)] of this Part.

3. 62 IAC 1816.49 (Surface Mining Operations) and 1817.49 (Underground

Mining Operations) Impoundments

a. Illinois added new subsections (a)(1) to read as follows:

Impoundments meeting the Class B or C criteria for dams in the

U.S. Department of Agriculture, Soil Conservation Service Technical

Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and

Reservoirs,'' 1985 shall comply with ``Minimum Emergency Spillway

Hydrology Criteria'' table in TR-60 and the requirements of this

section.

b. Illinois redesignated existing subsections (a)(1) through

(a)(11) as (a)(2) through (a)(12). Illinois also revised outdated

citation references and changed the term ``operator'' to the term

``permittee'' throughout these sections.

c. Illinois revised redesignated subsections (a)(4)(A) to read as

follows:

An impoundment meeting the Class B or C criteria for dams in TR-

60, or the size or other criteria of 30 CFR 77.216(a) shall have a

minimum static safety factor of 1.5 for a normal pool with steady

state seepage saturation conditions, and a seismic safety factor of

at least 1.2.

d. Illinois revised redesignated subsections (a)(4)(B) by removing

the language ``Impoundments meeting the size or other criteria of 30

CFR 77.216(a)'' and adding the language

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``Impoundments included in subsection (a)(4)(A) above.''

e. Illinois added the following new sentence to redesignated

subsections (a)(5):

Impoundments meeting the SCS Class B or C criteria for dams in

TR-60 shall comply with the freeboard hydrology criteria in the

``Minimum Emergency Spillway Hydrology Criteria'' table in TR-60.

f. Illinois revised redesignated subsections (a)(6)(A) to require

that impoundments meeting the Class B or C criteria for dams in TR-60

meet the same requirements that are specified in these subsections for

impoundments meeting the size or other criteria of 30 CFR 77.216(a).

g. Illinois revised redesigned subsections (a)(10)(A) to require

that impoundments meeting the SCS Class B or C criteria for dams in TR-

60, or the size or other criteria of 30 CFR 77.216(a) be inspected,

examined and certified in accordance with 30 CFR 77.216.

h. Illinois revised redesigned subsections (a)(11) to require that

impoundments that do not meet the SCS Class B or C criteria for dams in

TR-60 or that are not subject to 30 CFR 77.216(a) must be examined at

least quarterly for appearances of instability, structural weakness, or

other hazardous conditions. The permittee must designate a qualified

person to do the quarterly examinations.

i. Illinois revised subsections (b)(9)(A) by also requiring that

permanent impoundments not meeting the Class B or C criteria for dams

in TR-60 be provided with a spillway that meets the requirements

specified in these subsections for those not meeting the size or other

qualifying criteria of 30 CFR 77.216(a).

j. Illinois added new subsections (b)(9)(C) to read as follows:

Permanent impoundments meeting the Class B or C criteria for

dams in TR-60, shall be provided with a spillway that meets the

criteria in the ``Minimum Emergency Spillway Hydrologic Criteria''

table in TR-60, or such larger event as may be specified by the

Department based on factors such as terrain, topography and soil

type.

k. Illinois revised subsections (c)(1) by also requiring that

temporary impoundments not meeting the Class B or C criteria for dams

in TR-60 be provided with a spillway that meets the requirements

specified in these subsections for those not meeting the size or other

qualifying criteria of 30 CFR 77.216(a). Illinois also added the

following new provision at the end of subsections (c)(1):

Temporary impoundments meeting the Class B or C criteria for

dams in TR-60, shall be provided with a spillway that meets the

criteria in the ``Minimum Emergency Spillway Hydrologic Criteria''

table in TR-60, or such larger event as may be specified by the

Department based on factors such as terrain, topography and soil

type.

l. Illinois revised subsections (c)(2)(B)(i) to require that

temporary impoundments meeting the SCS Class B or C criteria for dams

in TR-60 be designed to control the same precipitation event specified

for impoundments meeting the size or other criteria of 30 CFR

77.216(a).

m. Illinois revised subsections (c)(2)(B)(ii) by replacing the

language ``meeting the size or other criteria of 30 CFR 77.216(a)''

with the language ``included in subsection (c)(2)(B)(i) above.''

C. Performance Bonds

1. Administrative Review of Bond Adjustment Determinations

Illinois is revising its regulations for bond adjustment and

administrative review as a result of Court Case No. 99-MR-214, Sangamon

County, Illinois. The court found that the Department's rules lacked a

mechanism for administrative hearing in the case of bond adjustments.

The court ruled that this was in violation of the Illinois

Administrative Procedure Act and enjoined the Department from

increasing performance bond under its current regulations.

a. 62 IAC 1800.15 Adjustment of Performance Bond.

Illinois revised subsection (b) to provide the permittee an

opportunity for administrative review under 62 Ill. Adm. Code 1847.3 of

any proposed adjustment to the performance bond amount.

b. 62 IAC 1847.3 Permit Hearings.

Illinois revised subsection (a) to provide that the hearing

procedures outlined in 62 IAC 1847.3 also apply to review of bond

adjustment determinations under 62 Ill. Adm. Code 1800.15.

2. 62 IAC 1800.40 Requirement to Release Performance Bonds

a. Illinois revised subsection (a)(1) to allow permittees to

authorize a person to act on their behalf in filing an application for

bond release and to allow the Department to initiate an application for

bond release.

b. In subsections (a)(2) and (3), the term ``operator'' is changed

to ``applicant.''

c. In subsection (b)(2), Illinois removed a reference to the term

``county.'' Illinois also added a requirement that the municipality in

which the surface coal mining operation is located be notified by

certified mail of the Department's final administrative decision to

release or not to release all or part of the performance bond.

D. 62 IAC 1816.89 (Surface Mining Operations) and 1817.89 (Underground

Mining Operations) Disposal of Noncoal Mine Wastes

At subsections (b), Illinois is requiring that areas reclaimed to

cropland capability have a minimum of four feet of suitable soil cover.

E. 62 IAC 1817.101 (Underground Mining Operations)--Backfilling and

Grading: General Requirements

Illinois revised subsection (a) to require that surface areas

disturbed incident to underground mining activities be backfilled and

graded not later than 12 months after cessation of active use as

determined by the Department.

F. Revegetation

1. 62 IAC 1816.111 (Surface Mining Operations) and 1817.111

(Underground Mining Operations) Revegetation: General Requirements

a. Illinois revised outdated citation references in 62 IAC

1816.111(b)(5).

b. At 62 IAC 1816.111(d) and 1817.111(d), Illinois removed the

requirement that those prime farmlands granted an exemption in

accordance with 62 Ill. Adm. Code 1785.17(a)(5) meet the requirements

of 62 Ill. Adm. Code 1823.15.

2. 62 IAC 1816.116 (Surface Mining Operations) and 1817.116

(Underground Mining Operations) Success of Revegetation.

Illinois added a provision at subsections (b)(2) that require the

person who conducts mining activities to:

Initiate a soil compaction and fertility testing plan, subject

to the approval of the Department, for areas which have incurred

five unsuccessful attempts to meet the production required by

subsections (a)(3)(C) or (E) above or 62 Ill. Adm. Code 1785.15, or

shall initiate deep tillage on the areas.

Illinois redesignated existing subsections (b)(2) as subsections

(b)(3).

G. 62 IAC 1823.14 Prime Farmland: Soil Replacement

Illinois revised subsection (d) by adding the following new

requirement:

In those areas where the B or C horizons were not removed but

may have been compacted or otherwise damaged during the mining

operation, the permittee shall engage in deep tillage or other

appropriate means to restore premining capabilities.

[[Page 44680]]

H. 62 IAC 1840.11 Inspections by the Department

Illinois revised subsection (f)(2) by adding the language ``or the

Department has determined that the reclamation required for Phase II

bond release has been completed'' at the end of the existing language.

This will allow a surface coal mining and reclamation operation that

meets the new criteria to be designated inactive for inspection

purposes.

I. Miscellaneous Changes

Throughout the sections discussed above, Illinois corrected

typographical errors, punctuation, citation references, and other

editorial-type errors; made minor wording changes; and simplified its

use of numbers. To reflect recodification of the Illinois Surface

Mining Land Conservation and Reclamation Act that occurred in 1992,

Illinois replaced its citation references for the ``Ill. Rev. Stat.

1989, ch. 96\1/2\, pars. 7901.01 et seq.'' with references to ``225

ILCS 720.'' Illinois also made some of the same types of corrections

and changes in 62 IAC 1777.11, 1800.13, 1840.14, and 1846.18.

IV. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are requesting

comments on whether the amendment satisfies the applicable program

approval criteria of 30 CFR 732.15. If we approve the amendment, it

will become part of the Illinois program.

Written Comments

We will make comments, including names and addresses of

respondents, available for public review during normal business hours.

We will not consider anonymous comments. If individual respondents

request confidentiality, we will honor their request to the extent

allowable by law. Individual respondents who wish to withhold their

name or address from public review, except for the city or town, must

state this prominently at the beginning of their comments. We will make

all submissions from organizations or businesses, and from individuals

identifying themselves as representatives or officials of organizations

or businesses, available for public review in their entirety.

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.

Please submit Internet comments as an ASCII file avoiding the use

of special characters and any form of encryption. Please also include

``Attn: SPATS No. IL-097-FOR'' and your name and return address in your

Internet message. If you do not receive a confirmation that we have

received your Internet message, contact the Indianapolis Field Office

at (317) 226-6700.

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

September 1, 1999. We will arrange the location and time of the hearing

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

special accommodations 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 been heard.

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 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 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 published 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.

[[Page 44681]]

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: August 10, 1999.

Charles E. Sandberg,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 99-21288 Filed 8-16-99; 8:45 am]

BILLING CODE 4310-05-P