Illinois Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-097-FOR, Part II]

Illinois Regulatory Program

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

ACTION: Final rule; approval of amendment.

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

is approving part of an amendment to the Illinois regulatory program

(Illinois program) under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). Illinois proposed revisions to its program concerning

adjustment of performance bond amounts, administrative review,

subsidence control, water replacement, release of performance bonds,

siltation structures, impoundments, hydrologic balance, disposal of

noncoal mine wastes, revegetation, backfilling and grading, prime

farmland, and State inspections. This final rule document addresses

Illinois' revisions concerning adjustments to performance bond amounts

and administrative review. The primary focus of these revisions is to

provide permittees an opportunity for a formal hearing on adjustments

made to performance bonds. Illinois intends to revise its program to be

consistent with the corresponding Federal regulations, to provide

additional safeguards, and to improve operational efficiency.

EFFECTIVE DATE: December 27, 1999.

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

Indianapolis Field Office, Office of Surface Mining, Minton-Capehart

Federal Building, 575 North Pennsylvania Street, Room 301,

Indianapolis, Indiana 46204-1521. Telephone: (317) 226-6700. Internet:

[email protected]

SUPPLEMENTARY INFORMATION:

I. Background on the Illinois Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Illinois Program

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

approved the Illinois program. 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. Submission of the Proposed Amendment

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

the Illinois Department of Natural Resources (Department) sent us an

amendment to the Illinois program under SMCRA. The Department proposed

to amend Title 62 of the Illinois Administrative Code (IAC) 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.

We announced receipt of the amendment in the August 17, 1999,

Federal Register (64 FR 44674). In the same document, we opened the

public comment period and provided an opportunity for a public hearing

or meeting on the adequacy of the amendment. The public comment

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period closed on September 16, 1999. Because no one requested a public

hearing or meeting, we did not hold one.

During our review of the amendment, we identified concerns relating

to siltation structures, impoundments, performance bonds, and State

inspections. We also identified some nonsubstantive editorial errors.

We notified Illinois of these concerns and editorial problems by letter

dated September 21, 1999 (Administrative Record No. IL-5048). We also

separated the amendment into three parts in order to expedite the State

program amendment process. Part I concerns revisions to Illinois'

regulations relating to subsidence control and water replacement.

Because we did not identify any concerns relating to Illinois'

revisions for subsidence control and water replacement, we approved

them in a final rule on December 6, 1999 (64 FR 68024). Part II

concerns revisions to Illinois' regulations relating to adjustment of

performance bond amounts and administrative review. On December 2,

1999, the Department requested that we proceed with our decision on its

revisions for adjustment of performance bond amounts and administrative

review (Administrative Record No. IL-5049). Therefore, this final rule

Federal Register document addresses the IL-097-FOR, Part II revisions.

Part III concerns revisions to Illinois' regulations relating to

performance bonds, siltation structures, impoundments, hydrologic

balance, disposal of noncoal mine wastes, revegetation, backfilling and

grading, prime farmland, and State inspections. These revisions will be

addressed in a future final rule.

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15

and 732.17, are our findings on Illinois' revisions pertaining to

adjustment of performance bond amounts and administrative review.

Administrative Review of Bond Adjustment Determinations

Illinois revised its regulations for performance 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 prohibited the Department from

increasing performance bonds under its current regulations.

1. 62 IAC 1800.15 Adjustment of Performance Bond Amounts

In response to the court's decision, Illinois revised subsection

(b)(2) to provide the permittee an opportunity for a formal hearing, in

accordance with 62 IAC 1847.3, on proposed adjustments to the

performance bond amount. Currently, Illinois provides an opportunity

for an informal conference.

The counterpart Federal regulation at 30 CFR 800.15(b)(2) also

provides the permittee an opportunity for an informal conference on

proposed adjustments to the performance bond amount. However, Illinois'

allowance for a formal administrative hearing will provide an increased

level of due process procedures for the permittees. Therefore, we find

that Illinois' regulation at 62 IAC 1800.15(b)(2) is no less effective

than the Federal regulation at 30 CFR 800.15(b)(2).

2. 62 IAC 1847.3 Administrative Review and Judicial Review: Permit

Hearings

Illinois revised subsection (a) to provide that the hearing

procedures outlined in 62 IAC 1847.3 also apply to review of

performance bond adjustment determinations under 62 IAC 1800.15.

Illinois' currently approved regulations at 62 IAC Part 1847

consolidate the procedures for all of the formal hearings provided for

in the Illinois program. The proposed revision clarifies that

administrative review of performance bond adjustment determinations is

covered under the hearing procedures at 62 IAC 1847.3. We previously

approved the hearing procedures at 62 IAC 1847.3 for review of several

types of administrative decisions and determinations, including permit

decisions and valid existing right determinations. The Federal

regulations specify general adjudicatory provisions that States must

include in their administrative review hearing procedures, but allow

the States discretion in how to implement these provisions. We find

that Illinois' regulations at 62 IAC 1847.3 are consistent with the

Federal regulations at 43 CFR part 4 for purposes of administrative

hearings on performance bond adjustment determinations.

IV. Summary and Disposition of Comments

Public Comments

We requested public comments on the proposed amendment, but did not

receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendment from various Federal agencies with an actual or potential

interest in the Illinois program. By letter dated September 2, 1999,

the Natural Resources Conservation Services (NRCS) provided comments

(Administrative Record No. IL-5047). However, these comments did not

pertain to the Illinois program revisions concerning adjustment of

performance bond amounts or administrative review. Therefore, we will

discuss NRCS's comments in our future final rule document for IL-097-

FOR, Part III.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written

agreement from the EPA for those provisions of the program amendment

that relate to air or water quality standards issued under the

authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean

Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Illinois

proposed to make in this amendment pertain to air or water quality

standards. Therefore, we did not ask the EPA to agree on the amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

proposed amendment from the EPA (Administrative Record No. IL-5045).

The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from

the SHPO and ACHP on amendments that may have an effect on historic

properties. None of the revisions that Illinois proposed to make in

this amendment pertain to historic properties. However, on August 10,

1999, we requested comments from both the SHPO and ACHP (Administrative

Record No. IL-5045), but neither responded to our request.

V. Director's Decision

Based on the above findings, we approve the revisions made to 62

IAC 1800.15(b)(2) and 1847.3(a). We approve the regulations that

Illinois proposed with the provision that they be published in

identical form to the regulations submitted to and reviewed by OSM and

the public.

To implement this decision, we are amending the Federal regulations

at 30 CFR Part 913, which codify decisions concerning the Illinois

program. We are making this final rule effective immediately to

expedite the State

[[Page 72277]]

program amendment process and to encourage Illinois to bring its

program into conformity with the Federal standards. SMCRA requires

consistency of State and Federal standards.

VI. 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 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 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.

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: December 14, 1999.

Charles E. Sandberg,

Acting Regional Director Mid-Continent Regional Coordinating Center.

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

as set forth below:

PART 913--ILLINOIS

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

follows:

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

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

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

follows:

Sec. 913.15 Approval of Illinois regulatory program amendments.

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Original amendment submission date Date of final publication Citation/description

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August 2, 1999.......................... December 27, 1999.......... 62 IAC 1800.15(b)(2); 1847.3(a).

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[FR Doc. 99-33465 Filed 12-23-99; 8:45 am]

BILLING CODE 4310-05-P