Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26801

Finding No. 6, Rule 2.03.6(1),

concerning contents of permit

applications pertaining to an applicant’s

legal right to enter a proposed permit

area;

Finding No. 7, Rule 2.07.5(2)(c),

concerning notice and hearing

procedures for persons seeking and

opposing disclosure of confidential

information;

Finding No. 8, Rules 2.07.6(2)(d) and

2.07.6(2)(d)(iii)(E), concerning findings

which must be made by the State

regulatory authority prior to approval of

applications for permits and permit

revisions;

Finding No. 9, Rule 2.07.6(2)(d)(iv),

concerning public notice and

opportunity for public hearing regarding

proposed (1) operations located within

100 feet, measured horizontally, of a

public road or (2) operations which

require closure or relocation of a public

road;

Finding No. 10, Rule 2.07.7(9),

concerning permit conditions requiring

continuous bond coverage;

Finding No. 11, Rules 2.08.4 (1)

through (4), concerning permit revisions

and permit revision application

requirements;

Finding No. 12, Rules 2.08.4(6)(b) (i)

and (ii), concerning public hearing and

notice requirements for technical

revisions;

Finding No. 13, Rule 3.03.1(5),

concerning release of bond coverage for

liability associated with temporary

drainage and sediment control facilities;

Finding No. 14, Rules 4.02.2(2) (a)

through (c), concerning information

required on identification signs;

Finding No. 15, Rules 4.03.1(d) (i) and

(ii) and 4.03.2(f) (i) and (ii), concerning

an engineer’s certification of the

construction or reconstruction of haul

and access road;

Finding No. 16, Rules 4.05.2(7),

5.03.3(1)(a), 5.03.3(2)(a) (i) and (ii), and

5.03.3(2)(b), concerning (1) compliance

with the effluent limitations for coal

mining promulgated by the U.S.

Environmental Protection Agency set

forth in 40 CFR part 434 and (2)

enforcement procedures concerning

violations of effluent limitations;

Finding No. 17, Rule 4.08.3(2)(b)(i),

concerning blasting areas;

Finding No. 18, Rules 5.02.5(1),

5.02.5(1)(a), and 5.02.5(1)(b)(i),

concerning inspections based upon

citizens’ requests; and

Finding No. 19, Rules 5.02.2(8) (a)

through (c), concerning inspection

frequency at abandoned sites, and Rule

5.03.2(3), concerning enforcement

procedures at abandoned sites.

The Federal regulations at 30 CFR

part 906, codifying decisions concerning

the Colorado program, are being

amended to implement this decision.

This final rule is being made effective

immediately to expedite the State

program amendment process and to

encourage States to bring their programs

into conformity with the Federal

standards without undue delay.

Consistency of State and Federal

standards is required by SMCRA.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted form review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

2. 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 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 Tribe or State AMLR

plans and revisions thereof since each

such plan is drafted and promulgated by

a specific Tribe or State, not by OSM.

Decisions on proposed Tribe or State

AMLR plans and revisions thereof

submitted by a Tribe or State are based

on a determination of whether the

submittal meets the requirements of

Title IV of SMCRA (30 U.S.C. 1231–

1243) and the applicable Federal

regulations at 30 CFR parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is

required for this rule since agency

decisions on proposed Tribe or State

AMLR plans and revisions thereof 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)).

4. 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.).

5. 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 Tribe or State

submittal which is the subject of this

rule is based upon 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 established by

SMCRA or previously promulgated by

OSM will be implemented by the Tribe

or State. 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.

6. Unfunded Mandates Reform Act

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 906

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 7, 1996.

Richard J. Seibel,

Regional Director, Western Regional

Coordinating Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations is amended as set forth

below:

PART 906—COLORADO

1. The authority citation for Part 906

continues to read as follows:

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

2. Section 906.15 is amended by

adding paragraph (u) to read as follows:

§ 906.15 Approval of amendments to the

Colorado regulatory program.

* * * * *

(u) The Director approves the

proposed revisions submitted by

Colorado on November 20,1 995, and

revised on February 16,1 996.

3. Section 906.16 is amended by

removing and reserving paragraph (a) to

read as follows:

§ 906.16 Required program amendments.

* * * * *

(a)–(c) [Reserved.]

* * * * *

[FR Doc. 96–13266 Filed 5–28–96; 8:45 am]

BILLING CODE 4310–05–M

30 CFR Part 913

[SPATS No. IL–089–FOR]

Illinois Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.
26802 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving, with

certain exceptions and additional

requirements, a proposed amendment to

the Illinois regulatory program

(hereinafter referred to as the ‘‘Illinois

program’’) under the Surface Mining

Control and Reclamation act of 1977

(SMCRA). Illinois proposed revisions to

and additions of regulations pertaining

to termination of jurisdiction, permit

fees, definitions, coal exploration,

permitting, environmental resources,

reclamation plans, special categories of

mining, small operator assistance,

bonding, performance standards,

revegetation, inspection, enforcement,

civil penalties, administrative and

judicial review, and certification of

blasters. The amendment is intended to

revise the Illinois program to be

consistent with the corresponding

Federal regulations, incorporate the

additional flexibility afforded by

recently revised Federal regulations,

clarify ambiguities, and improve

operational efficiency.

EFFECTIVE DATE: May 29, 1996.

FOR FURTHER INFORMATION CONTACT:

Roger W. Calhoun, 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.

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. Background

information on the Illinois program,

including the Secretary’s findings, the

disposition of comments, and the

conditions of approval can be found in

the June 1, 1982, Federal Register (47

FR 23883). Subsequent actions

concerning the conditions of approval

and program amendments can be found

at 30 CFR 913.15, 913.16, and 913.17.

II. Submission of the Proposed

Amendment

By letter dated February 3, 1995

(Administrative Record No. IL–1615),

Illinois submitted a proposed

amendment to its program pursuant to

SMCRA. Illinois submitted the proposed

amendment in response to an August 5,

1993, letter (Administrative Record No.

IL–1400) that OSM sent to Illinois in

accordance with 30 CFR 732.17(c), in

response to required program

amendments at 30 CFR 913.16(s), (t),

and (u), and at its own initiative. Illinois

proposed to revise or add provisions to

the following parts or sections of its

program: 62 IAC 1700, general; 62 IAC

1701.Appendix A, definitions; 62 IAC

1761.11, areas where mining is

prohibited or limited; 62 IAC 1772,

requirements for coal exploration; 62

IAC 1773, requirements for permits and

permit processing; 62 IAC 1774.13,

permit revisions; 62 AC 1778.15, right of

entry information; 62 IAC 1779, surface

mining permit applications—minimum

requirements for information on

environmental resources; 62 IAC

1780.23, reclamation plan—premining

and postmining information; 62 IAC

1783, underground mining permit

applications: minimum requirements for

information on environmental

resources; 62 IAC 1784.15, reclamation

plan—premining and postmining

information; 62 IAC 1785, requirements

for permits for special categories of

mining; 62 IAC 1795, small operator

assistance; 62 IAC 1800, bonding and

insurance requirements for surface coal

mining and reclamation operations; 62

IAC 1816, permanent program

performance standards—surface mining

activities; 62 IAC 1817, permanent

program performance standards—

underground mining activities; 62 IAC

1825.14, high capability lands—soil

replacement; 62 IAC 1840, department

inspections; 62 IAC 1843, state

enforcement; 62 IAC 1845.12, when

penalty will be assessed; 62 IAC 1847,

notice of hearing; and 62 IAC 1850,

training, examination and certification

of blasters.

OSM announced receipt of the

proposed amendment in the February

27, 1995, Federal Register (60 FR

19522), and in the same document

opened the public comment period and

provided an opportunity for a public

hearing on the adequacy of the proposed

amendment. The public comment

period closed on March 29, 1995. A

public hearing was requested and was

held on March 24, 1995, as scheduled.

During its review of the amendment,

OSM identified concerns relating to 62

IAC 1701.Appendix A, definition of

wetlands; 62 IAC 1773.20, general

procedures for improvidently issued

permits; 62 IAC 1773.23, review of

ownership of control and violation

information; 62 IAC 1773.24,

procedures for challenging ownership or

control shown in the Applicant Violator

System; 62 IAC 1774.13(d)(6), incidental

boundary revisions; 62 IAC 1785.17,

prime farmlands; 62 IAC 1816/1817.13

and 1816/1817.46(e)(2), siltation

structures; 62 IAC 1816/

1817.116(a)(3)(F) and 62 IAC

1816(a)(4)(A)(ii), revegetation standards

for small isolated areas; 62 IAC

1816.116(a)(4)(D), revegetation

standards for hay production; 62 IAC

1816.116(a)(4)(D), revegetation

standards for hay production; 62 IAC

1816/1817.116(a)(5), wetlands

revegetation; 62 IAC 1816/1817.116(c),

revegetation reference areas; and 62 IAC

1816.Appendix A, permit specifics yield

standards. OSM notified Illinois of the

concerns by letters dated April 28 and

August 3, 1995 (Administrative Record

Nos. IL–1649 and IL–1660,

respectively).

By letter dated November 1, 1995

(Administrative Record No. IL–1663),

Illinois responded to OSM’s concerns by

submitting additional explanatory

information and revisions to its

proposed program amendment. Based

upon the additional explanatory

information and revisions to the

proposed program amendment

submitted by Illinois, OSM reopened

the public comment period in the

December 5, 1995, Federal Register (60

FR 62229) and provided an opportunity

for a public hearing on the adequacy of

the revised amendment. The public

comment period closed on January 4,

19996. The public hearing scheduled for

January 2, 1996, was not held because

no one requested an opportunity to

testify.

III. Director’s Findings

Set forth below, pursuant to SMCRA

and the Federal regulations at 30 CFR

732.15 and 732.17, are the Director’s

findings concerning the proposed

amendment.

A. Revisions to Illinois’ Regulations

That Are Not Substantive in Nature

Revisions not specifically discussed

in this final rule concern nonsubstantive

wording changes, corrected

typographical errors, or revised crossreferences and paragraph notations to

reflect organizational changes within

the amended regulations.

Throughout its revised regulations,

Illinois proposed to change specific

references of the ‘‘Illinois Department of

Mines and Minerals’’ to the ‘‘Illinois

Department of Natural Resources, Office

of Mines and Minerals’’ in order to

reflect a reorganization change which

was effective July 1, 1995; to change its

citation references of the ‘‘Ill. Rev. Stat.

1989, ch. 961⁄2, pars. 7901.01 et seq.’’ to

‘‘225 ILCS 720’’ to reflect recodification

of the Illinois Surface Coal Mining Land
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26803

Conservation and Reclamation Act

(State Act) that occurred in 1992; and to

change its references of the ‘‘Soil

Conservation Service’’ and ‘‘S.C.S.’’ to

the ‘‘Natural Resources Conservation

Service’’ and ‘‘NRCS’’ to reflect that

Federal agency’s change in name.

The above proposed revisions do not

alter the substance of the previously

approved provisions in the Illinois

regulations. Therefore, the Director

finds that they will not render the

Illinois regulations less effective than

the Federal regulations.

B. Revisions to Illinois’ Regulations That

Are Substantively Identical to the

Corresponding Provisions of the Federal

Regulations

1. Revisions to Existing Regulations and

New Regulations

62 IAC 1700.11(f), Termination of

jurisdiction (30 CFR 700.11(d)); 62 IAC

1701.Appendix A, Definition of

‘‘Applicant Violator System or AVS’’ (30

CFR 773.5); 62 IAC 1701.Appendix A,

Definition of ‘‘Federal violation notice’’

(30 CFR 773.5); 62 IAC 1701.Appendix

A, Definition of ‘‘Historic lands’’ (30

CFR 762.5); 62 IAC 1701.Appendix A,

Definition of ‘‘Land eligible for

remining’’ (30 CFR 701.5); 62 IAC

1701.Appendix A, Definition of

‘‘Ownership or control link’’ (30 CFR

773.5); 62 IAC 1701.Appendix A,

Definition of ‘‘State violation notice’’

(30 CFR 773.5); 62 IAC 1701.Appendix

A, Definition of ‘‘Substantially disturb’’

(30 CFR 701.5); 62 IAC 1701.Appendix

A, Definition of ‘‘Violation notice’’ (30

CFR 773.5); 62 IAC 1761.11(a)(4)(B),

Areas where mining is prohibited or

limited (30 CFR 761.11(d)(2)); 62 IAC

1773.15 (b)(1) and (b)(2), Review of

violations (30 CFR 773.15 (b)(1) and

(b)(2)); 62 IAC 1773.20(b),

Improvidently issued permits review

criteria (30 CFR 773.20(b)); 62 IAC

1773.20(c)(4), Improvidently issued

permits remedial measures (30 CFR

773.20(c)(2)); 62 IAC 1773.21(a),

Automatic suspension and rescission

(30 CFR 773.21(a)); 62 IAC 1773.22,

Verification of ownership or control

application information (30 CFR

773.22); 62 IAC 1773.23, Review of

ownership or control and violation

information (30 CFR 773.23); 62 IAC

1773.24(a), procedures for challenging

ownership or control links shown in the

Applicant Violator System (30 CFR

773.24(a)); 62 IAC 1773.25, Standards

for challenging ownership or control

links and the status of violations (30

CFR 773.25); 62 IAC 1780.23(a) (1)–(2),

Reclamation plan premining

information for surface mining permit

applications (30 CFR 780.23(a) (1)–(2));

62 IAC 1780.23 (b) and (c), Reclamation

plan postmining information for surface

mining permit applications (30 CFR

780.23 (b) and (c)); 62 IAC 1784.15(a)

(1)–(2), Reclamation plan premining

information for underground mining

permit applications (30 CFR 784.15(a)

(1)–(2)); 62 IAC 1784.15 (b) and (c),

Reclamation plan postmining

information for underground mining

permit applications (30 CFR 784.15 (b)

and (c)); 62 IAC 1795.4(b), Definition of

‘‘Qualified laboratory’’ (30 CFR 795.3);

62 IAC 1795.6 (b), (b)(1), and (b)(2),

Small operator assistance—eligibility for

assistance (30 CFR 795.6 (a)(2), (a)(2)(i),

and (a)(2)(ii)); 62 IAC 1795.9 (b)(1)–

(b)(5), Small operator assistance—

program services and data requirements

(30 CFR 795.9 (b)(1)–(b)(5)); 62 IAC

1795.12(a)(2), Small operator

assistance—applicant liability (30 CFR

795.12(a)(2)); 62 IAC 1816.79, Protection

of underground mining (30 CFR 816.79);

62 IAC 1816.97(b), Endangered and

threatened species—surface mining (30

CFR 816.97(b)); 62 IAC 1817.97(b),

Endangered and threatened species—

underground mining (30 CFR 817.97(b));

62 IAC 1840.11 (g) and (h), Inspections

by the Department—abandoned sites (30

CFR 840.11 (g) and (h)); 62 IAC

1843.13(a)(3), Suspension or revocation

of permits (30 CFR 843.13(a)(3)); 62 IAC

1843.13(a)(4)(B), Suspension or

revocation of permits (30 CFR

843.13(a)(4)(ii)); 62 IAC 1843.13(b),

Suspension or revocation of permits (30

CFR 843.13(d)); and 62 IAC 1843.23,

Enforcement actions at abandoned sites

(30 CFR 843.22).

Because the above proposed revisions

and/or additions are identical in

meaning to the corresponding Federal

regulations, shown in brackets, the

Director finds that Illinois’ proposed

regulations are no less effective than the

Federal regulations.

2. Deletions of Existing Regulations

62 IAC 1773.21(c), Improvidently

issued permits—appeals of rescission

notices (30 CFR 773.21(c), 59 FR 54306,

October 28, 1994); 62 IAC 1779.22,

Surface coal mining application

requirements for premining land use

information (30 CFR 779.22, 59 FR

27932, May 27, 1994); 62 IAC

1779.25(a)(11), Surface coal mining

application requirements for premining

slope measurements (30 CFR

779.25(a)(11), 59 FR 27932, May 27,

1994); 62 IAC 1783.22, Underground

coal mining application requirements

for premining land use information (30

CFR 783.22, 59 FR 27932, May 27,

1994); and 62 IAC 1783.25(a)(11),

Underground coal mining application

requirements for premining slope

measurements (30 CFR 783.25(a)(11), 59

FR 27932, May 27, 1994).

The above proposed deletions are

consistent with OSM’s repeal of the

Federal counterpart regulations, shown

in brackets. Therefore, the Director finds

that the proposed deletions will not

render the Illinois regulations less

effective than the Federal regulations.

C. Revisions to Illinois’ Regulations That

Are Substantive in Nature

1. 62 IAC 1700.16(a) Fees

Illinois proposed a revision to 62 IAC

1700.16(a) that requires fees collected

under the provisions of the Surface Coal

Mining Land Conservation and

Reclamation Act (State Act) be

deposited in the Coal Mining Regulatory

Fund instead of the general revenue

fund. This revision implements the

requirements at 225 ILCS 720/9.07 of

the State Act that OSM approved on

November 21, 1994 (59 FR 59918). The

Coal Mining Regulatory Fund was

established to receive money for

administration of the Illinois program.

There is no direct Federal counterpart to

62 IAC 1700.16(a). However, the

proposed amendment is not

inconsistent with the general

requirements for permit fees at section

507(a) of SMCRA and 30 CFR 777.17 of

the Federal regulations. Therefore, the

Director finds that the proposed revision

to 62 IAC 1700.16(a) is not inconsistent

with the requirements of SMCRA or the

Federal regulations.

2. 62 IAC 1701.Appendix A Wetland

Definition

Illinois proposed to add the definition

of ‘‘wetland’’ from the Illinois

Interagency Wetland Policy Act of 1989

(20 ILCS 830/I–6(a)) to its regulations at

62 IAC 1701.Appendix A. Illinois

proposed the definition because it had

proposed standards for wetland

revegetation in its regulations at 62 IAC

1816/1817.116(a)(5). Illinois defined

wetland to mean ‘‘land that has a

predominance of hydric soils (soils

which are usually wet and where there

is little or no free oxygen) and that is

inundated or saturated by surface or

groundwater at a frequency and

duration sufficient to support, and that

under normal circumstances does

support, a prevalence of hydrophytic

vegetation (plants typically found in wet

habitats) typically adapted for life in

saturated soil conditions. Areas which

are restored or created as the result of

mitigation or planned construction

projects and which function as a

wetland are included within this

definition even when all three wetland

parameters are not present.’’
26804 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

In its letter dated April 28, 1995

(Administrative Record No. 1649), OSM

requested Illinois to provide a statement

which explains the meaning of the last

sentence of the ‘‘wetlands’’ definition

(Areas which are restored or created as

the result of mitigation or planned

construction projects and which

function as a wetland are included

within this definition even when all

three wetland parameters are not

present). At the May 31, 1995, meeting

(Administrative Record No. 1654),

Illinois explained that generally the

‘‘hydric’’ soil profile may not be fully

developed in a newly created wetland.

This concept is consistent with the U.S.

Army Corps of Engineers (Corps)

Wetlands Delineation Manual,

Technical Report Y–87–1

(Administrative Record No. IL–1616). In

the manual, the Corps states that

‘‘Although wetland indicators of all

three parameters (i.e. vegetation, soils,

and hydrology) may be found in some

man-induced wetlands, indicators of

hydric soils are usually absent. Hydric

soils require long periods (hundreds of

years) for development of wetness

characteristics, and most man-induced

wetlands have not been in existence or

a sufficient period to allow development

of hydric soil characteristics * * *.’’

The Federal regulations at 30 CFR

Chapter VII do not contain a counterpart

wetland definition. However, the

Illinois definition is not inconsistent

with the provisions of section 515(b)(24)

of SMCRA or the Federal regulations at

30 CFR 816/817.97(f) pertaining to

wetlands and habitats of unusually high

value for fish and wildlife. These

provisions require the operator to

minimize disturbances and adverse

impacts to fish and wildlife and to

enhance wherever practical or restore

habits or high value for fish and

wildlife, including wetlands.

Based on the above discussion, the

Director finds that Illinois’ proposed

definition of wetland is not inconsistent

with SMCRA or the Federal regulations.

3. 62 IAC 1772.11(b)(5) Notice

Requirements for Exploration Removing

250 Tons of Coal or Less

At 62 IAC 1772.11(b)(5), Illinois

proposed to clarify that forms OG–7 and

OG–8 are required to be submitted with

a coal exploration notice only if such

forms are required by the Department’s

Oil and Gas Division.

There is no direct Federal regulation

counterpart. However, the Director finds

the proposed regulation is not

inconsistent with the general provisions

governing coal exploration notice

requirements at 30 CFR 772.11.

4. 62 IAC 1772.12(d)(2) Decision on an

Application for Exploration Removing

More Than Two Hundred and Fifty

(250) Tons of Coal

Illinois proposed to revise 62 IAC

1772.12(d)(2) by replacing the word

‘‘operation’’ with the word ‘‘permit’’ in

the phrase ‘‘application for a coal

exploration operation.’’ The Director

finds the revised language is

substantively identical to the language

in the Federal counterpart regulation at

30 CFR 772.12(d)(2); and it is, therefore,

no less effective than the Federal

regulation.

At 62 IAC 1772.12(d)(2)(C), Illinois

proposed to delete its reference to the

‘‘agency with jurisdiction over State

Historic Preservation’’ and replace it

with the name of the agency, ‘‘Illinois

Historic Preservation Agency,’’ that has

jurisdiction over cultural and historical

resources in Illinois. The Director finds

that referencing the actual agency that

has jurisdiction adds clarity to this

provision and does not render the

previously approved regulation less

effective than the Federal counterpart

regulation at 30 CFR 772.12(d)(2)(iii).

5. 62 IAC 1773.15(a)(1) Review of

Permit Applications

Illinois offers the opportunity for both

an informal conference and a public

hearing on the decision to issue deny,

or modify a permit application. Illinois

is proposing to revise 62 IAC

1773.15(a)(1) by removing reference to

its informal conference at section

1773.13(c) and adding a reference to its

public hearing at section 1773.14. This

is consistent with the Illinois Attorney

General’s legal opinion dated June 13,

1980, which was required by OSM in

accordance with 30 CFR 731.14(c) prior

to State program approval. In the Illinois

Attorney General’s opinion, the public

hearing at 62 IAC 1773.14 met the

requirements of the informal conference

in the Federal regulations at 30 CFR

773.13(c). Illinois’ informal conference

at section 1773.13(c) was considered an

optional, additional step for public

participation in permit processing.

Therefore, the Director finds that the

Illinois regulation at 62 IAC

1773.15(a)(1), as amended, is no less

effective than the counterpart Federal

regulation at 30 CFR 773.15(a)(1).

6. 62 IAC 1773.24 Procedures for

Challenging Ownership or Control

Shown in the Applicant Violator System

Illinois proposed new provisions at 62

IAC 1773.24 (b) through (d) that provide

procedures for challenges concerning

the status of State violations to which

persons shown on the Applicant

Violation System (AVS) have been

linked. These proposed procedures are

substantively identical to the

procedures in the Federal regulations at

30 CFR 773.24 (b) through (d) for

challenges concerning an ownership or

control link shown in the AVS or the

status of a Federal violation. Therefore,

the Director finds that Illinois’

regulations at 62 IAC 1773.24 (b)

through (d) for challenging the status of

State violations are no less effective

than 30 CFR 773.24 (b) through (d) of

the Federal regulations for challenging

the status of Federal violations.

7. 62 IAC 1774.13 Application

Requirements and Procedures for Permit

Revisions

a. Section 1774.13(b)(2)(E). At

subsection (b)(2)(E), Illinois is proposing

that a significant revision be required

for land use changes involving greater

than 5 percent of the ‘‘Total permit

acreage’’ instead of the ‘‘original total

permit acreage.’’ This proposed change

in language allows adjustment to the

previously approved 5 percent

cumulative total limitation. The

proposed addition of subsection

1774.13(b)(2)(E)(i) would allow the

accumulation of the 5 percent limit to

restart upon issuance of a significant

revision that addresses all previous land

use changes approved via insignificant

revisions. The proposed addition of

subsection 1774. 13(b)(2)(E)(ii) would

allow acreage added by incidental

boundary revisions to be included in the

total permit acreage used to determine

the 5 percent limit if the acreage has

been addressed previously in a

significant revision. Changing the land

use on more than an accumulated 5

percent of the permit area through the

insignificant revision process without

giving the public an opportunity for

review and comment through the

significantly revision process would

still not be allowed under the proposed

revision. It is also noted that Illinois

requires all alternative land use

revisions, both significant and

insignificant, to comply with its

postmining land capability

requirements at 62 IAC 1816.133 or

1817.133 and requires consultation with

the landowner or the land management

agency with jurisdiction over the lands

before approval of either type of

revision.

The Federal counterpart regulation for

permit revisions at 30 CFR 774.13(b)

requires the regulatory authority to

establish guidelines for the scale or

extent of revisions for which all the

permit application requirements will

apply. OSM determined in the

September 28, 1983, Federal Register
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26805

948 FR 44344) that this requirement

provided flexibility to the regulatory

authority to establish guidelines suitable

to the operation of individual State

programs. Therefore, the Director finds

that the proposed revisions represent a

reasonable application by Illinois of the

requirement in 30 CFR 774.13(b) and

that 62 IAC 1774.13(b), as amended, is

no less effective than the counterpart

Federal regulation for permit revisions.

b. Section 1774.13(d)(6). Illinois is

proposing to amend its regulations

pertaining to incidental boundary

revisions as a partial response to an

August 5, 1993, letter (Administrative

Record No. IL–1400) that was sent to

Illinois in accordance with 30 CFR

732.17(c) and (e)(3). OSM had

determined that Illinois’ administration

of its incidental boundary revision

regulations appeared inconsistent with

the approved regulatory program. At

subsection (d)(6), Illinois originally

proposed to require public notice and a

ten-day comment period for incidental

boundary revision applications which

propose new surface acreage or planned

subsidence shadow area to the original

permit (Administrative Record No. IL–

1615). During a May 31, 1995, public

meeting (Administrative Record NO.

1654), Illinois and OSM discussed

reducing the comment period from ten

days to seen days because of time

restrictions in processing incidental

boundary revisions (90 days).

Subsequent to this meeting, Illinois

submitted revised language which

reduced the comment period to seven

days. Illinois had previously submitted

a letter dated September 14, 1993

(Administrative Record No. IL–1402),

that specified the internal control and

management practices implemented to

identify potential patterns of incidental

boundary revision abuse and to prevent

abuse.

The Director finds that the proposed

amendment to Illinois’ regulations at 62

AC 1774.13(d)(6) to allow public

involvement in this incidental boundary

revision review and approved process is

consistent with the Federal regulations

at 30 CFR 774.13(d). Furthermore,

Illinois’ proposed amendment and its

implementation of internal management

control measures for its incidental

boundary revision review and approval

process resolves the issues associated

with OSM’s August 5, 1993, 30 CFR part

732 action.

8. 62 IAC 1778.15 Right for Entry

Information

a. Section 1778.15(a). At subsection

(a), Illinois is proposing to remove the

requirement for underground coal

mining applications to contain a

description of the documents upon

which the applicant bases his or her

legal right to enter and begin surface

coal mining and reclamation operations

in the shadow area, including the right

to subside within the shadow area.

Right of entry information would still be

required to enter and begin surface coal

mining and reclamation operations in

the permit area. The language in the

revised provision is substantively

identical to the counterpart Federal

provision at 30 CFR 778.15(a), which

requires such a description only for the

permit area. On April 5, 1983 (48 FR

14814), OSM revised the definition of

‘‘permit area’’ and associated terms to

exclude areas overlying underground

workings (shadow area). Therefore, the

Director finds 62 IAC 177815(a), as

revised, is no less effective than the

counterpart Federal regulation.

b. Section 1778.15(e). At subsection

(e), Illinois is proposing to clarify that

underground mining applications in

which the applicant claims to have

valid existing rights to conduct planned

subsidence operations within an area

where mining is prohibited or limited,

contain the necessary information and

meet the requirements of 62 IAC

1778.16. (Relationship to Areas

Designed Unsuitable for Mining) and 62

IAC 1761.12 (Procedures for

determining whether mining operations

are limited or prohibited). The existing

provision specified this information for

applications to conduct surface coal

mining operations only. The Federal

regulations at 30 CFR 778.15 pertaining

to right of entry information contain no

comparable requirement. However, the

proposed additional requirement at 62

IAC 1778.15(e) is not inconsistent with

the Federal regulation provisions at 30

CFR 761.12 pertaining to procedures for

determining whether mining operations

are limited or prohibited, § 778.16

pertaining to the proposed permit area

relationship to areas designed

unsuitable for mining, or § 784.20

pertaining to the requirement for an

underground mining application to

contain a substance control plan.

Therefore the Director finds that the

revised provision at subsection (e) does

not render the Illinois regulations at 62

IAC 1778.15 less effective than the

counterpart Federal regulations at 30

CFR 778.15, and he is approving it.

c. Section 1778.15(f). Illinois is

proposing to add new subsection (f) to

require applications for underground

mining area (shadow area) to contain a

notarized statement by a responsible

official of the applicant attesting that all

necessary mining rights, including the

right to subside, if applicable, have been

or will be obtained prior to mining. The

Federal regulations at 30 CFR 778.15

pertaining to right of entry information

contain no comparable requirements for

underground mining shadow area.

However, the proposed requirements at

62 IAC 1778.15(f) are not inconsistent

with the Federal regulation provisions

at 30 CFR 78.10 pertaining to the

requirement for subsidence control

plans for undergrounds mining

applications. Therefore, the Director

finds that the new provision at

subsection (f) does not render the

Illinois regulations at 62 IAC 1778.15

less effective than the counterpart

Federal regulations at 30 CFR 778.18,

and he is approving it.

9. 62 IAC 1780.23(a)(3) and 62 IAC

1784.15(a)(3) Reclamation Plan:

Premining Information

Because the cited regulations

governing surface mining permit

application requirements at 62 IAC

1780.23(a) are identical to counterpart

regulations governing underground

mining permit application requirements

at 62 IAC 1784.15(a), the discussion of

changes are consolidated.

Illinois is proposing to add new

subsection (a)(3) at 62 IAC 1780.23 and

1784,15. This is a recodification of the

provisions deleted from existing 62 IAC

1779.25(a)(11)(D) for surface mines and

1783.25 (a)(11)(D) for underground

mines with one minor exception. The

recodified provisions pertain to a

requirement for a premining soils map

or contoured aerial photo of the

proposed permit area. Both the current

provisions and the recodified

provisions, as originally proposed

(Administrative Record No. IL–1663),

require ‘‘a solid map of medium

intensity’’ to be submitted with the

permit application, while the revised

recodified provisions require ‘‘an

intensive soil map’’ to be submitted.

This change in language was proposed

because of a comment from the Natural

Resources Conservation Service, during

the State’s own rulemaking process, that

the terminology ‘‘medium intensity’’

was not consistent with the terminology

of the National Cooperative Soil Survey

for the State of Illinois. There are no

Federal counterpart provisions.

However, the Director finds that the

addition of these previously approved

requirements, including the change in

terminology at 62 IAC 1780.23(a)(3) and

1784.15(a)(3), is not inconsistent with

the Federal regulations.

10. 63 IAC 1785.17(a) Prime

Farmlands

In subsection (1)(1), Illinois is

proposing to delete the following

language: ‘‘Nothing in this Section shall
26806 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

apply to any permit issued period to the

date of enactment of the Federal Act, or

to any revisions or renewals thereof, or

to any existing surface mining

operations for which a permit was

issued prior to the date of enactment of

the Federal Act, as determined by the

Department prior to September 29,

1981. For lands for which a request for

exemption was initially made or

pending on or after September 29,

1981.’’ Illinois also proposed to delete

existing subsections (a)(5) and (a)(6)

pertaining to an acreage limitation on

the amount of exempted prime farmland

and (a)(7)(B) pertaining to a preliminary

exemption review. Illinois proposed to

redesignate existing subsection (a)(1) to

(a)(2)(A); (a)(2) to (a)(2)(B); (a)(3) to

(a)(2)(C); (a)(4) to (a)(3); and (a)(7)(A) to

(a)(4).

The Federal regulations do not

contain counterpart provisions to the

deleted language in subsections (a)(1),

(a)(5), (a)(6), and (a)(7)(B). The proposed

revisions at 62 IAC 1785.17(a) render

Illinois’ regulation requirements

substantively identical to the

counterpart Federal regulation

requirements at 30 CFR 785.17(a) with

one exception. At redesignated

subsection (a)(4), Illinois retained an

additional requirements for a scale map

of the area proposed to be exempted.

Therefore, the Director finds the revised

provisions of 62 IAC 1785.17(a) are no

less effective than the Federal regulation

provisions at 30 CFR 785.17(a).

11. 63 IAC 1785.23 Minor

Underground Mine Facilities Not at or

Adjacent to the Processing or

Preparation Facility or Area

Illinois originally adopted section

1785.23 to take into account the distinct

differences between surface and

underground mining. This category of

facilities, which includes air shaft, fan

and ventilation buildings, small support

buildings or sheds, access power holes,

and other small structures and

associated roads, would be subject to an

abbreviated permit application and

review period on the basis that these

types of structures have a very minimal

impact on the land and the

environment. There is no Federal

counterpart to these previously

approved provisions. In this

amendment, Illinois proposed to clarify

the public notice and opportunity to

comment provisions at subsection (d) by

revising paragraph (3) to require written

comments from persons with an interest

which is or may be adversely affected be

filed within the 30-day public comment

period and by revising paragraph (4) to

require the Interagency Committee to

submit review comments within 30 days

of the date of receipt of the application.

A proposed revision to subsection (e)(1)

requires the Department to make its

final decision to approve, deny, or

modify the complete application for a

permit within 20 days, rather than 10

days, following the close of the public

comment period. Subsection (g)(1) is

proposed to be amended to require the

Department to notify persons who filed

comments or objections to the

application of its final decision, to

replace the word ‘‘disapprove’’ with the

word ‘‘deny’’ for consistency with other

sections of the Illinois regulations

dealing with approval and denial of

permit applications, and its final action.

Subsection (g)(2) is proposed to be

revised by correcting the administrative

and judicial review regulation citation.

While there are no direct Federal

counterparts to these proposed

revisions, the Director finds that the

proposed revisions to 62 IAC 1785.23

will enhance the public participation

and review process provisions for a

minor underground mine facility permit

application and that the proposed

revisions are not inconsistent with the

public participation and review

provisions of section 510(a) of SMCRA

and 30 CFR 773.13 and 773.15(a) of the

Federal regulations.

12. 62 IAC 1795 Small Operator

Assistance Program

On November 5, 1990, and October

24, 1992, the President signed into law

the Omnibus Budget Reconciliation Act

of 1990, Public Law 101–508 and the

Energy Policy Act of 1992, Public Law

102–486, respectively. Included in these

laws were amendments to the Small

Operator Assistance Program (SOAP)

authorized at section 507(c) of SMCRA.

On May 31, 1994 (59 FR 28136), OSM

published a final rule to amend the

Federal regulations at 30 CFR part 795

to reflect these amendments.

In this amendment, Illinois proposed

changes to its regulations to be

consistent with and incorporate the

additional flexibility afforded by the

revised provisions of SMCRA and the

Federal regulations. Illinois had

previously proposed enabling statutory

revisions pertaining to its SOAP at 225

ILCS 720/2.02 of the Illinois Surface

Coal Mining Land Conservation and

Reclamation Act (State Act), and these

revisions were approved by OSM on

November 21, 1994 (59 FR 59918). The

Illinois SOAP regulations that contain

revised provisions substantively

identical to the counterpart Federal

regulations are noted in finding B.1.,

and those that contain revised

provisions that are not substantively

identical to the counterpart Federal

regulations are discussed below.

a. Section 1795.1 Scope and Purpose

Illinois proposed to amend the

purpose statement at subsection (b) to

reference the new and enhanced

technical permitting services that can be

provided to eligible operators under its

SOAP program. Although the purpose

statement in the counterpart Federal

regulation at 30 CFR 795.1 was not

changed to reflect these new and

enhanced technical permitting services,

the Federal regulation at 30 CFR

795.9(b) does list the specific technical

services authorized for the SOAP by the

Energy Policy Act of 1992. Therefore,

the Director finds that the revised

purpose statement at 62 IAC 1795.1 is

no less effective than the counterpart

Federal regulation purpose statement at

30 CFR 795.1.

b. Section 1795.9 Program Services

and Data Requirements

At 62 IAC 1795.9(b)(6), Illinois

proposed substantively identical

language to that contained in the

counterpart Federal regulation at 30

CFR 795.9(b)(6), including the listing of

its counterpart regulation citations at 62

IAC 1780.16 and 1784.21, but also

authorized the collection of information

and production of plans for the

information required under its

regulations at 62 IAC 1779.19 and

1783.19. Sections 1779.19 for surface

mines and 1783.19 for underground

mines require a permit application to

contain a map or aerial photograph that

delineates existing vegetative types and

a description of the plant communities

within the proposed permit areas that

include sufficient adjacent areas to

allow evaluation of vegetation as

important habitat for fish and wildlife

for those species of fish and wildlife

identified under 62 IAC 1780.16 and

1784.21, respectively. The Federal

regulation at 30 CFR 795.9(b)(6)

authorizes the collection of site-specific

resources information and production of

protection and enhancement plans for

fish and wildlife habitats required by 30

CFR 780.16 and 784.21 and information

and plans for any other environmental

values required by the regulatory

authority under SMCRA.

Since the counterpart Federal

regulation at 30 CFR 795.9(b)(6) allows

a regulatory authority to authorize

assistance for the collection of

information and production of plans for

any other environmental value required

under SMCRA, the Director finds the

revised provisions of 62 IAC

1795.9(b)(6) are no less effective than

the Federal regulation provisions.
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26807

c. Section 1795.12 Applicant Liability

At 62 IAC 1795.12(a)(3), Illinois

proposed language which is

substantively identical to the language

in the Federal regulation at 30 CFR

795.12(a)(3) with the following

exceptions. Illinois is requiring

reimbursement if the ‘‘original

permittee’s and transferee’s’’ total actual

and attributed production exceeds

300,000 tons during the specified 12-

month period, while the Federal

regulation requires reimbursement if the

‘‘transferee’s’’ total actual and attributed

production exceeds 300,000 tons during

the specified 12-month period. Illinois

further clarified its requirement by

proposing the following additional

language. ‘‘If the permit is transferred

during the twelve (12) month period

immediately following the permit

issuance date, the determination of

adherence to the twelve (12) month300,000 tons limit shall be performed by

combining the actual and attributed

production of both parties for the twelve

(12) month period immediately

following the date of original permit

issuance.’’ Both the Illinois and Federal

regulations contain the provision that

holds the applicant and its successor

jointly and severally obligated to

reimburse the regulatory authority. The

Director finds that since the attributed

tonnage in Illinois’ proposed revision

does not exceed the 300,000 ton limit

for the same time period specified in the

Federal regulation, the revised

regulation at 62 IAC 1795.12(a)(3) is no

less effective than the counterpart

Federal regulation.

At 62 IAC 1795.12(b), Illinois

proposed to delete its definition of good

faith. There is no Federal counterpart to

this definition. Therefore, the Director

finds this deletion is not inconsistent

with the Federal regulations.

13. 62 IAC 1800 Bonding and

Insurance Requirements for Surface

Coal Mining and Reclamation

Operations

a. Section 1800.5 Definitions

Illinois proposed to revise subsection

(b)(4) to allow acceptance of irrevocable

letters of credit from banks organized or

authorized in other states and from

banks organized or authorized in the

United States by national charter rather

than from only those organized or

authorized to transact business in

Illinois. Illinois is requiring a

confirming bank be designated with an

office in Illinois that is authorized to

accept, negotiate, and pay the letter

upon presentment in Illinois if the bank

does not have an office for collection in

Illinois. This is consistent with the

Federal regulation at 30 CFR 800.5(b)(4)

which requires the banks to be

organized or authorized to transact

business in the United States. Therefore,

the Director finds the revised regulation

at 62 IAC 1800.5(b)(4) is no less

effective than the counterpart Federal

regulation.

b. Section 1800.20 Surety Bonds

Illinois is proposing to remove

subsections (b)(2) through (b)(5), which

contained surety bond conditions. The

counterpart Federal regulation at 30

CFR 800.20(b) does not contain the

provisions proposed for removal.

Therefore, the Director finds the

removal of these provisions is not

inconsistent with the Federal

regulations.

c. Section 1800.21 Collateral Bonds

Illinois proposed to revise subsection

(b)(1) to clarify that irrevocable letters of

credit may be issued by banks organized

or authorized to do business in Illinois,

in another state of the United States or

in the United States by national charter.

Illinois is requiring a confirming bank

be designated with an office in Illinois

that is authorized to accept, negotiate,

and pay the letter upon presentment in

Illinois if the issuing bank does not have

an office for collection in Illinois. This

is consistent with the Federal regulation

at 30 CFR 800.21(b)(1) which requires

the banks issuing letters of credit to be

organized or authorized to transact

business in the United States. Therefore,

the Director finds the revised regulation

at 62 IAC 1800.21(b)(1) is no less

effective than the counterpart Federal

regulation.

14. 62 IAC 1816 and 62 IAC 1817

Permanent Program Performance

Standards for Surface and Underground

Mining Activities

The Illinois permanent program

performance standard regulations for

surface mining activities at 62 IAC 1816

and underground mining activities at 62

IAC 1817 that contain revised

provisions substantively identical to the

counterpart Federal regulations are

noted in finding B.1., and those that

contain revised provisions that are not

substantively identical to the

counterpart Federal regulations are

discussed below. Since most of the

surface mining and underground mining

regulations are identical, the revisions

are being combined for discussion

purposes, unless otherwise noted.

a. Sections 1816.22(b) and 1817.22(b)

Topsoil and Subsoil: Substitutes and

Supplements

Illinois is proposing to remove

subsection (b)(2) to eliminate the

requirement that topsoil plans for

substitutes or supplements be

considered a significant revision unless

specified circumstances apply. Existing

subsection (b)(1) is redesignated

subsection (b) because of the removal.

The counterpart Federal regulations at

30 CFR 816.22(b) and 817.22(b) do not

contain the removed language, and the

revised provisions in 62 IAC 1816.22(b)

and 1817.22(b) are substantively

identical to these Federal counterparts.

Therefore, the Director finds the

removal of subsection (b)(2) will not

render Illinois’ regulations at 62 IAC

1816.22(b) and 1817.22(b) less effective

than the Federal counterpart

regulations.

b. Sections 1816.41(c) and 1817.41(c)

Hydrologic Balance Protection: Ground

Water Monitoring

At 62 IAC 1816.41(c)(2) and

1817.41(c)(2), Illinois proposed to revise

subsection (c)(2) by specifying that the

ground water monitoring reports, that

are required to be submitted every three

months, shall be submitted by the first

day of the second month following the

reporting period, unless the Department

specifies an alternative reporting

schedule. The Federal counterpart

regulations at 30 CFR 816.41(c)(2) and

817.41(c)(2) require reports to be

submitted every three months or more

frequently as prescribed by the

regulatory authority without specifying

exact reporting schedules. Since Illinois

has retained its requirement that ground

water monitoring data be submitted

every three months or more frequently

if necessary, the Director finds the

addition of a specific reporting schedule

will not render the Illinois regulations at

62 IAC 1816.41(c)(2) and 1817.41(c)(2)

less effective than the counterpart

Federal regulations.

c. Section 1816.41(e) and 1817.41(e)

Hydrologic Balance Protection: Surface

Water Monitoring

Illinois proposed to revise subsection

(e)(2) by removing the requirement to

send NPDES reports to the Department

concurrently with those sent to the

Illinois EPA and adding the requirement

that NPDES reports are to be sent to the

Department by the first day of the

second month following the reporting

period. The Federal counterpart

regulations at 30 CFR 816.41(e)(2) and

817.41(e)(2) require surface water

monitoring reports to be submitted
26808 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

every three months or more frequently

as prescribed by the regulatory authority

without specifying exact reporting

schedules. Since Illinois has retained its

requirement that surface water

monitoring data be submitted every

three months or more frequently if

necessary, the Director finds the

addition of a specific reporting schedule

for submitting Illinois’ required NPDES

report will not render the Illinois

regulations at 62 IAC 1816.41(e)(2) and

1817.41(e)(2) less effective than the

counterpart Federal regulations.

d. Sections 1816.46(e) and 1817.46(e)

Hydrologic Balance: Siltation

Structures: Exemptions

Illinois proposed to revise the

language in subsection (e) and

incorporate the language from existing

subsection (e)(1) to read as follows:

‘‘Exemptions to the requirements to pass

all drainage from disturbed areas

through a siltation structure may be

granted if the disturbed drainage area

within the total disturbed area is small

. . .’’ Illinois added an additional

exemption provision at new subsection

(e)(1) that will allow the use of the

alternate sediment control measures

described in §§ 1816.45(b) and

1817.45(b) instead of siltation structures

in instances where the disturbed

drainage area within the total disturbed

area is small and the permittee

demonstrates that siltation structures

are not necessary for drainage to meet

the effluent limitations and water

quality standards for the receiving

waters. Sections 1816.45 for surface

mining activities and 1817.45 for

underground mining activities require

that sediment control measures be

designed, constructed, and maintained

using the best technology currently

available (BTCA). Furthermore, Illinois

stated in the comment section of its

revised amendment submittal dated

November 1, 1995 (Administrative

Record No. IL–1663), that ‘‘the

Department will require that any

alternative sediment control measures

be shown to be the best technology

currently available.’’

The Federal regulations do not

contain a counterpart to the proposed

exemption at 30 CFR 816.46(e)(1) and

817.46(e)(1). However, the Federal

regulations at 30 CFR 816.45(a)(1) and

817.45(a)(1) require that BTCA be used

to ‘‘prevent, to the extent possible,

additional contributions of sediment to

streamflow or to runoff outside the

permit area.’’ Also, the Federal

regulations at 30 CFR 816.46(b)(2) and

817.46(b)(2) which required all surface

drainage from a disturbed area be

passed through a siltation structure

were remanded by the District Court in

1985 in In re: Permanent Surface Mining

Regulation Litigation (III), 620 F. Suppl.

1519 (D.D.C. 1985). Subsequently, OSM

suspended these rules on November 20,

1986 (51 FR 41957). The effect of this

suspension is that State regulatory

authorities may determine on a case by

case basis what is BTCA rather than

requiring, in every situation, that

drainage be passed through siltation

structures. The use of BTCA is required

by sections 515(b)(10)(B) and

516(b)(9)(B) of SMCRA. In the preamble

of the 1986 suspension notice (51 FR

41957–41958), OSM stated that ‘‘in

situations where sediment control

measures other than siltation structures

are determined as BTCA, the

performance standards of §§ 816.45 and

817.45 will control.’’ The referenced

sections are the Federal counterparts to

Illinois regulations at 62 IAC 1816.45

and 1817.45. Therefore, since Illinois

requires alternate sediment control

measures be designed, constructed, and

maintained using BTCA, the Director

finds the proposed revisions will not

render 62 IAC 1816.46(e) and 1817.46(e)

less effective than the Federal

regulations for sediment control for

small disturbed drainage areas.

e. Sections 1816.116(a)(2)(B) and

1817.116(a)(2)(B) Revegetation

Standards for Success: Success of

Revegetation

The State Act was amended at 225

ILCS 720/3.15 to change the

revegetation responsibility period from

five years to two years for areas eligible

for remining consistent with section

515(b)(20)(B) of SMCRA. At sections

1816.116(a)(2)(B) for surface mining and

1817.116(a)(2)(B) for underground

mining, Illinois proposed to implement

this statutory provision by revising the

first sentence of each section to read:

‘‘The period of extended responsibility

shall continue for a period of not less

than five (5) full years, except that on

lands eligible for remining, the period of

responsibility (until September 30,

2004) shall be two (2) full years.’’ The

counterpart Federal regulations at 30

CFR 816.116(c)(2) and 817.116(c)(2), as

amended on November 27, 1995 (60 FR

58480), require the period of

responsibility for lands eligible for

remining included in permits issued

before September 30, 2004, or any

renewals thereof, to continue for a

period of not less than two full years.

The amended Federal regulations also

require that ‘‘to the extent that the

success standards are established by

paragraph (b)(5) of this section, the

lands shall equal or exceed the

standards during the growing season of

the last year of the responsibility

period.’’ Illinois’ counterparts to 30 CFR

816.116(b)(5) and 817.116(b)(5) at

sections 1816.116 (a)(3)(A) and

1817.116(a)(3)(A) require remined areas

to meet the specified standards in those

sections during the last year of the

responsibility period. Therefore, the

Director finds that the revised

regulations at 62 IAC 1816.116(a)(2)(B)

and 1817.116(a)(2)(B) are no less

effective than the counterpart Federal

regulations.

f. Sections 1816.116(a)(2)(F) and

1817.116(a)(2)(F) Revegetation

Standards for Success: Augmentation

(1) Existing provisions at subsection

(a)(2)(F)(i), (ii), and (iii) concerning

augmentation requirements for high

capability land areas are proposed to be

deleted. Illinois’ provisions for high

capability lands, including the

provisions proposed for deletion, have

no direct Federal counterparts.

Therefore, the Director finds the

deletion of these provisions is not

inconsistent with the Federal

regulations concerning revegetation

success standards.

(2) Illinois is proposing to add the

following augmentation provision for

pasture, hayland, and grazing land at

new subsection (a)(2)(F)(i): ‘‘The five (5)

year period of responsibility shall not

recommence after deep tillage on areas

where the operator has met the

revegetation success standards of

subsection (a)(3)(E) below.’’ Subsection

(a)(3)(E) pertains to the revegatation

success standards for pasture, hayland,

and grazing land areas. Illinois’

proposed provision would allow

augmentation, in the form of deep

tillage, without restarting the period of

extended responsibility for revegetation

success and bond liability. The Federal

regulations at 30 CFR 816.116(c)(1) and

817.116(c)(1) do not allow

augumentation without restarting the

period of extended responsibility.

Although the Federal regulations at 30

CFR 816.116(c)(4) and 817.116(c)(4)

allow regulatory authorities to approve

selective husbandry practices without

extending the period of responsibility

for revegetation success and bond

liability, they must first obtain approval

for the practices from OSM. The

regulatory authorities must provide

proof that the proposed practices are

normal husbandry practices within the

region for unmined lands having land

uses similar to the approved postmining

land use of the disturbed areas. Illinois

has neither proposed nor obtained

approval for use of deep tillage as a

normal husbandry practice in Illinois.

Therefore, the Director finds the
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26809

proposed provisions at 62 IAC

1816.116(a)(2)(F)(i) and

1817.116(a)(2)(F)(i) are inconsistent

with and less effective than the Federal

regulation requirements at 30 CFR

816.116(c)(1) and 817.116(c)(1), and he

is not approving them. Furthermore, he

is requiring Illinois to remove 62 IAC

1816.116(a)(2)(F)(i) and

1817.116(a)(2)(F)(i) from its program.

(3) Illinois proposed to add

augmentation provisions for wetlands at

new subsection (a)(2)(F)(ii). A portion of

the proposed provisions identify and

clarify those actions which constitute

augmentative practices. Augmentative

practices include significant alterations

to the size or character of the watershed,

pumping used to maintain water levels,

and applying neutralizing agents,

chemical treatments or fertilizers to the

wetland area. The Director finds that the

augmented practices proposed by

Illinois that would restart the period of

extended responsibility for successful

revegetation and bond liability on

wetlands are not inconsistent with the

Federal regulations at 30 CFR

816.116(c)(1) and 817.116(c)(1).

The proposed provisions also identify

and clarify those actions which

constitute non-augmentative (normal

husbandry) practices and management

techniques for wetland areas. Nonaugmentative practices and management

techniques include normal agricultural

husbandry practices, such as routine

liming and fertilization, and wetlands

managed as wildlife food plot areas and

water management using permanent

water control structures.

On September 3, 1993

(Administrative Record No. IL–1219),

OSM approved Illinois’ designation of

the agricultural practices described in

the Illinois Agronomy Handbook

(Administrative Record No. IL–1192A)

and those practices which are a part of

an approved conservation plan subject

to the Food, Agriculture, Conservation

and Trade Act of 1990 (7 U.S.C. 1421 et

seq.) as normal agricultural husbandry

practices for the State of Illinois. The

approved practices include normal

routine liming and fertilization of lands

used for the production of food and/or

forage. Therefore, in the State of Illinois,

these approved agricultural practices

would be used for the management of

wildlife food plot areas.

Illinois in its submission dated

February 3, 1995 (Administrative

Record No. IL–1615), addresses the use

of permanent water control structures as

a normal husbandry practice to manage

water levels in wetlands. Illinois

supports this designation by citing two

publications which indicate that this

type of water level management is

necessary to create suitable aerobic/

anaerobic conditions for the

germination of hyrophytic plants.

As shown above, the information and

literature contained in the Illinois

administrative record provide adequate

documentation that agricultural

techniques, such as routine liming and

fertilization, are normal husbandry

practices in the State of Illinois for lands

used in the production of food and/or

forage and that the use of permanent

water control structures for managing

the water levels of wetlands is a normal

husbandry practice. These proposed

practices should assist in ensuring the

effectiveness of fish and wildlife

management areas by providing

regulation and guidelines for the

enhancement of wetland and riparian

vegetation areas as required by 30 CFR

816.97(f) and 817.97(f) of the Federal

regulations. The Federal regulations at

30 CFR 816.116(c)(4) and 817.116(c)(4)

allow the regulatory authority to

approve selective husbandry practices

with prior approval from OSM.

Therefore, the Director finds the

proposed regulations at new 62 IAC

1816.116(a)(2)(f)(ii) and

1817.116(a)(2)(F)(ii) are no less effective

than the Federal regulations at 30 CFR

816.116(c)(4) and 817.116(c)(4).

g. Sections 1816.116(a)(3)(E) and

1817.116(a)(3)(E) Ground Cover and

Production for Pasture, Hayland, and

Grazing Land

In response to the required

amendment at 30 CFR 913.16(s),

subsection (a)(3)(E) is proposed to be

amended to clarify that pasture and/or

hayland or grazing land on nonpreviously disturbed areas are subject to

a 90 percent ground cover standard for

a minimum of any two years of a ten

(10) year period prior to the release of

the performance bond, except the first

year of the five (5) year extended

responsibility period. The counterpart

Federal regulations at 30 CFR

816.116(b)(1) and 817.116(b)(1) require

that for areas developed for use as

grazing land or pasture land, ground

cover and production of living plants on

the revegetated area meet certain

success standards approved by the

regulatory authority. With Illinois’

proposed revision, 62 IAC

1816.116(a)(3)(E) and 1817.116(a)(3)(E)

now contain both ground cover and

production success standards for

pasture, hayland, and grazing land.

Therefore, the Director finds the

proposed regulation provisions

pertaining to production and ground

cover success standards for pasture,

hayland, and grazing land are no less

effective than the counterpart Federal

regulations, and he is removing the

required amendment at 30 CFR

913.16(s).

Illinois proposed to revise subsection

(a)(3)(E) by removing the provision that

limited the substitution of corn

production for hay production on high

capability pasture land to one attempt.

The Federal regulations at 30 CFR

816.116 and 817.116 do not contain

specific standards for high capability

pasture land. However, the Federal

regulations at 30 CFR 816.116(a)(2) and

817.116(a)(2) require that standards for

success include criteria representative

of unmined lands in the area being

reclaimed to evaluate the appropriate

vegetation parameters for production.

The Illinois administrative record

contains sufficient proof that high

capability land is suitable for cropland

and that crop/hay rotations are common

practices in cropland areas surrounding

mines (Administrative Record Nos. IL–

1164 and IL–1192A). Therefore, since

corn production standards are generally

accepted to be more difficult to meet

than hay production standards, the

Director finds that the removal of this

limitation provision will not render 62

IAC 1816.116(a)(3)(E) and

1817.116(a)(3)(E) less effective than the

Federal regulations at 30 CFR

816.116(b)(1) and 817.116(b)(1).

Illinois also proposed to revise

subsection (a)(3)(E) to allow one year

substitution of crops in lieu of hay on

limited capability land, provided the

Department determines that the practice

is proper management in accordance

with its regulations at 62 IAC

1816.116(a)(2)(C) and 1817.116(a)(2)(C).

The Illinois regulations at subsection

(a)(2)(C) contain provisions pertaining

to normal husbandry practices. In the

amendment submittal dated February 3,

1995 (Administrative Record No. IL–

1615), Illinois noted that it has required

limited capability land to be returned to

a land use other than cropland as a

normal practice. However, Illinois

explained that some operators have

reclaimed limited capability land to a

higher quality when all prime and high

capability land acreage obligations have

been met. The capabilities described in

the Illinois program include limited

capability (non-cropland capable land),

high capability (cropland capable land),

and prime farmland (cropland capable

land). Therefore, the Director interprets

the reference Illinois made to ‘‘a higher

quality’’ to mean that the limited

capability land had been reclaimed to

either prime farmland or high capability

standards. To the extend that Illinois

will consider the quality of the soils

when making its determination and will

restrict its approval to limited capability
26810 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

lands that are reclaimed to a higher

quality, the Director finds the proposed

provision does not render the Illinois

regulations less effective than the

Federal regulations at 30 CFR

816.116(b)(1) and 817.116(b)(1).

h. Section 1816.116(a)(3)(F) and

1817.116(a)(3)(F) Revegetation Success

Standards for Non-Contiguous Areas

Less Than or Equal to Four Acres

Illinois proposes to add new

subsection (a)(3)(F) as follows: ‘‘Noncontiguous areas less than or equal to

four acres which were disturbed from

activities such as, but not limited to,

signs, boreholes, power poles, stockpiles

and substations shall be considered

successfully revegetated if the operator

can demonstrate that the soil

disturbance was minor, i.e., the majority

of the subsoil remains in place, the soil

has been returned to its original

capability and the area is supporting its

approved postmining land use at the

end of the responsibility period.’’

Although OSM recognizes the

practicality to excluding the need to test

for revegetation success for small areas

such as signs, boreholes, powerpoles,

and other small and minimally

disturbed areas, this proposal cannot be

approved. The provision does not limit

the type of disturbance that could occur

on such areas. It does not clarify the

type of demonstration the operator is to

make at the end of the responsibility

period to prove that the soil has been

returned to its original capability and to

prove that the postmining land use has

been achieved. Illinois’ proposed

revision would allow bond release

without adequate proof of productivity

on disturbed areas of four acres or less.

In order for OSM to approve this type

of proposal, Illinois would need to

provide additional regulatory language

which would more closely correlate the

maximum acreage to the types of

activities which would qualify for the

exemption. Illinois would also have to

provide additional regulatory language

as to what would constitute a

satisfactory demonstration of minimum

disturbance, achievement of original

capability, and achievement of

postmining land use. Absent this

information, the Director finds that the

proposed regulations at 62 IAC

1816.116(a)(3)(F) and 1817.116(a)(3)(F)

are less effective than the Federal

regulations at 30 CFR 816.116(a) and

817.116(a), and he is not approving

them. Furthermore, he is requiring

Illinois to remove these regulations from

its program.

i. Section 1816.116(a)(4)(A)(ii) Use of

the Agricultural Lands Productivity

Formula, Section 1816.Appendix; Fields

Illinois proposed to add the following

provision at subsection (a)(4)(A)(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. The small isolated areas shall be

managed and vegetated in the same

manner as the representative field.’’

This proposal would allow the

approval of the success of revegetation

for non-contiguous disturbed areas

based on the testing of a representative

field of the same soil capability that had

also been disturbed. The current Illinois

program requires that fields of four acres

or less be sampled in their entirety with

yields determined by harvest weight.

The Federal regulations at 30 CFR 816/

817.116(a)(1) require that revegetation

standards for success and statistically

valid sampling techniques for

measuring success be utilized by the

regulatory authority and that the

sampling techniques for measuring

success use a 90 percent statistical

confidence interval (i.e., one-sided test

with a 0.10 alpha level). The Federal

regulation at 30 CFR 823.15(b)(2)

requires that prime farmland soil

productivity be measured on a

representative sample or on all of the

mined and reclaimed prime farmland

area using the reference crop

determined under paragraph (b)(6) of

this section. It also requires that a

statistically valid sampling techniques

at a 90 percent or greater confidence

level be used as approved by the

regulatory authority in consultation

with the U.S. Natural Resources

Conservation Service.

Illinois has not provided sufficient

regulatory language as to how the

determination that a field is

representative of the small areas to be

exempt from testing would be made and

what information would be needed for

a satisfactory demonstration of

representation. Therefore, the Director

finds that the proposed provisions at 62

IAC 1816.116(a)(4)(A)(ii) are less

effective than the Federal regulations at

30 CFR 823.15, 816.116, and 817.116,

and he is not approving them.

Furthermore, he is requiring Illinois to

remove these regulations from its

program.

j. Section 1816.116(a)(4)(D) Use of the

Agricultural Lands Productivity

Formula, Section 1816.Appendix; Crops

Illinois is proposing to add oat crops

to the list of crops that may be grown

on prime farmland and other cropland

areas to prove productivity. The Federal

regulations at 30 CFR 823.15(b)(6)

pertaining to prime farmland requires

reference crops for proving soil

productively be selected from the crops

most commonly produced on the

surrounding prime farmland. The

Federal regulations at 30 CFR 816.116(a)

and 817.116(a) pertaining to other

cropland areas require the use of criteria

representative of unmined lands in the

area being reclaimed. Proof exists in the

Illinois administrative record that oats is

a commonly grown crop in Illinois and

that it is one of the crops that is rotated

with corn on unmined cropland areas.

This use is described in a section of the

Illinois Agronomy Handbook

concerning crop rotations. Therefore,

the Director finds the revised regulation

requirement is not inconsistent with the

Federal regulations.

k. Sections 1816.116(a)(5) and

1817.116(a)(5) Wetland Revegetation

Success Standards

Illinois proposed to add provisions at

subsection (a)(5)(A) that specify the

criteria and sampling procedures in the

U.S. Army Corps of Engineers Wetlands

Delineation Manual which will be used

to determine wetland revegetation

success. New subsection (a)(5)(B)

further requires that areas designed to

support vegetation in the approved plan

have a minimum areal coverage of 30

percent. The testing procedures in

Sections 1816.117(d) (1) through (3) and

1817.117(d) (1) through (3) shall be used

to evaluate the extent of cover in

conjunction with other specified

procedures. In OSM’s letter to the State

dated April 28, 1995 (Administrative

Record No. IL–1649), Illinois was asked

to provide a statement and technical

support which justifies why a minimum

areal coverage of 30 percent for

wetlands will be consistent with the

revegetation standards for ground cover

for areas to be developed for fish and

wildlife habitat at 30 CFR 816.116(a)(3)

and 817.116(a)(3). As technical support

for the 30 percent standard, Illinois

provided a copy of a Michigan State

University study (Journal of Wildlife

Management 45(1):1–15) that compared

dabbling duck and aquatic

macroinvertebrate responses to

manipulated wetlands under 30:70,

50:50, and 70:30 percent of cover to

percent of water treatments and a U.S.

Fish and Wildlife Service, Biological

Services Program, publication on the

qualitative values of wetlands with

various degrees of emergent vegetation

at the 20 percent to 70 percent levels

(Administrative Record Nos. IL–1650B

and IL–1653). Illinois provided a
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26811

statement that indicated the Michigan

State University study determined that

the 50:50 treatment was the most

desirable vegetative cover. However,

with the recognition that the percent of

vegetative cover increases with time as

open water decreases during wetlands

development, Illinois determined use of

the 30:70 as a minimum standard would

provide more incentive for the industry

to create wetlands.

There are no direct counterpart

Federal regulations at 30 CFR 816.116

and 817.116 for determining wetland

revegetation success. However, OSM’s

internal policy and procedures for

construction of wetlands to supplement

and enhance fish and wildlife habitat as

a postmining land use (Directives

System No. TSR–14, Transmittal

Number 828) provide that wetland areas

must meet the Federal definition of a

wetland as defined by the U.S. Army

Corps of Engineers Wetlands

Delineation Manual prior to bond

release. Illinois’ requirement that the

wetland vegetation criteria in the U.S.

Army Corps of Engineers Wetlands

Delineation Manual be achieved as

proof of productivity should assure that

the wetland areas meet the Federal

definition of a wetland as defined by the

Corps. Therefore, the Director finds that

62 IAC 1816.116(a)(5) and

1817.116(a)(5) are no less effective than

the Federal regulations at 30 CFR

816.116(b)(3) and 817.116(b)(3) for areas

to be developed for fish and wildlife

habitat.

l. Sections 1816.117(a)(1) and

1817.117(a)(1) Revegetation: Tree and

Shrub Vegetation; Lands Eligible for

Remining

Illinois proposed to revise subsection

(a)(1) by requiring the period of

responsibility (until September 30,

2004) be two full years for trees and

shrubs on lands eligible for remining.

Also, until September 30, 2004, trees

and shrubs planted on lands eligible for

remining need not have been in place

for three years prior to bond release and

shall not be counted in determining

success during the same calendar year

in which they were planted.

The counterpart Federal regulations at

30 CFR 816.116(b)(3)(ii) and

817.116(b)(3)(ii) do not contain the

proposed provisions. However, the

Federal regulations at 30 CFR

816.116(c)(2)(ii) and 817.116(c)(2)(ii)

were amended November 27, 1995 (60

FR 58480), to require a period of

responsibility of two full years for lands

eligible for remining included in

permits issued before September 30,

2004, or any renewals thereof. This

responsibility period requirement

would apply to all applicable

postmining land uses, including areas to

be developed for fish and wildlife

habitat. Also, a two year responsibility

period effectively eliminates the

requirement that trees and shrubs be left

in place for three years. Therefore, the

Director finds the Illinois regulations at

62 IAC 1816.117(a)(1) and

1871.117(a)(1), as revised, are no less

effective than the counterpart Federal

regulations.

m. Sections 1816.117(a)(3) and

1817.117(a)(3) Revegetation: Tree and

Shrub Vegetation; Erosion Control

Structures

Illinois proposed to amend subsection

(a)(3) to clarify that erosion control

structures, including pond

embankments within an approved land

use of fish and wildlife, forest, or

recreation shall not require the planting

of trees and shrubs. A herbaceous

ground cover will be required, and the

ground cover requirements of

subsection (a)(2) are still applicable to

erosion control structures. Illinois

determined that tree and shrub growth

on embankments is detrimental to their

maintenance, and submitted an Illinois

Department of Transportation (IDOT)

booklet entitled ‘‘Guidelines and Forms

for Inspection of Illinois Dams’’ to

support this determination

(Administrative Record No. IL–1617).

The Director finds that prudent

engineering practices dictate that large

rooted plants should not be planted on

erosion control structures because they

can cause instability. Illinois has

provided adequate support for its

exemption of erosion control structures

from the planting of trees and shrubs for

the State of Illinois. Therefore, Illinois’

proposed regulation provisions at 62

IAC 1816.117(a)(3) and 1817.117(a)(3)

are not inconsistent with the Federal

regulations at 30 CFR 816.116(b)(3)(ii)

and 817.116(b)(3)(ii).

n. Sections 1816.117(b) and 1817.117(b)

Revegetation: Tree and shrub

Vegetation; Woody Plants

Illinois proposed to revise subsection

(b) to clarify that planting arrangements

such as hedgerows, border plantings,

clump plantings, shelterbelts, and open

herbaceous areas which increase

diversity and edge effect within wildlife

areas may be approved by the

Department on a case-by-case basis prior

to planting such areas. The Federal

regulations at 30 CFR 816.116(b)(3)(i)

and 817.116(b)(3)(i) require minimum

stocking and planting arrangements be

specified by the regulatory authority on

the basis of local and regional

conditions. Therefore, the Director finds

that the proposed revision will not

render Illinois’ regulations at 62 IAC

1816.117(b) and 1817.117(b)

inconsistent with the Federal

regulations.

o. Sections 1816.117(c)(1),(c)(7) and

1817.117(c)(1),(c)(7) Revegetation:

Tree and Shrub Vegetation; Sampling

Procedure

Illinois proposed to revise subsection

(c)(1) to establish a field system for trees

and shrubs similar to that already

adopted for agricultural areas by

replacing the word ‘‘area’’ with the

word ‘‘field.’’ This subsection is also

revised by adding a requirement that

once field boundaries are established in

a submittal, the boundaries shall not be

changed unless the Department

approves a request in accordance with

its permit revision regulations at 62 IAC

1774.13. At subsection (c)(7), Illinois

proposed to remove the reference to

‘‘Illinois Department of Conservation’’

and change the word ‘‘conduct’’ to

‘‘administer.’’ The Federal regulations at

30 CFR 816.116(a)(1) and 817.116(a)(1)

require that the regulatory authority

select statistically valid sampling

techniques for measuring success and

include them in its program. The

Director finds that the revised

provisions at 62 IAC 1816.117 (c)(1) and

(c)(7) 1817.117 (c)(1) and (c)(7) will not

render Illinois’ previously approved

sampling procedures for measuring tree

and shrub vegetation less effective than

the Federal regulations.

15. 62IAC 1817.121(c)(3) Subsidence

Control; Water Replacement

Illinois proposes to add new

subsection (c)(3) to require operators to

promptly replace any drinking,

domestic, or residential water supply

from a well or spring in existence prior

to the application for a surface coal

mining and reclamation operations

permit, which has been affected by

contamination, diminution, or

interruption resulting from underground

coal mining operations.

The proposed language is consistent

with section 720(a)(2) of SMCRA, which

was added October 24, 1992, by the

Energy Policy Act. It is also consistent

with the counterpart Federal regulation

provision at 30 CFR 817.41(j), with one

exception. The Federal provision

specifies ‘‘underground mining

activities conducted after October 24,

1992.’’ Whereas the Illinois provision

will apply to activities conducted after

adoption. However, by letter dated April

25, 1995 (Administrative Record No. IL–

1533), Illinois indicated that its current

regulations codified at 62 IAC

1817.121(c)(2) require repair or
26812 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

compensation for subsidence-related

material damage, including damage

from activities conducted after October

24, 1992, to any structures or facilities,

and this would include repair of or

compensation for damage to water

delivery systems such as well, cisterns,

and water lines. Furthermore, on July

28, 1995 (60 FR 38677), OSM

announced its decision on initial

enforcement of the water replacement

requirements for Illinois for activities

conducted after October 24, 1992. It was

decided that initial enforcement of the

water replacement requirements in

Illinois is not reasonably likely to be

required and that implementation will

be accomplished through the State

program amendment process. Therefore,

the Director finds 62 IAC 1817.121(c)(3)

is no less effective than the Federal

counterpart provision for subsidencerelated water replacement.

However, it should be noted that the

July 28, 1995, decision addressed only

the initial enforcement schemes for

water replacement (30 CFR 817.41(j))

and subsidence damage repair/

compensation (30 CFR 817.121(c)(2))

provided for under section 720 of

SMCRA, as amended by the Energy

Policy Act of 1992, Pub. L. 102–486, 106

Stat. 2776 (1992). In addition to the

basic water supply replacement

requirement and the related subsidence

damage repair requirement, the

implementing Federal regulations that

became effective March 31, 1995,

contain other related supporting and

permitting provisions. OSM anticipates

that these other requirements will

become effective in the same way as

other revisions to the permanent

program regulations; i.e., in primacy

states such as Illinois, upon adoption of

counterpart State regulatory program

provisions (60 FR 16722). This process

will be initiated separately by OSM

under the provisions of 30 CFR

732.17(d).

16. 62 IAC 1816.151 and 1817.151

Primary Roads

At subsection (a), Illinois proposes to

specify that the certification of the

construction or reconstruction of

primary roads shall be submitted within

30 days after completion of

construction. Illinois defines

‘‘completion of construction’’ to mean

that the road is being used for its

intended purpose as determined by the

Department. The counterpart Federal

regulations at 30 CFR 816.151 and

817.151 do not set a time for submittal

of primary road construction

certifications or define ‘‘completion of

construction.’’ However, the Director

finds that the proposed revisions to 62

IAC 1816.151(a) and 1817.151(a) clarify

the existing provisions and do not

render the Illinois regulations less

effective than the Federal counterparts.

17. 62 IAC 1816.190 (a), (b) and (c) and

1817.190 (a), (b) and (c) Affected

Acreage Map

At subsection (a), Illinois proposed to

require submittal of reports and maps of

affected areas to the Department only by

removing the phrase ‘‘and to the county

clerk.’’ At subsection (b), Illinois is

requiring the permittee to submit two

copies of the reports and maps, plus an

additional copy for each county in

which the permit is located, which the

Department will then forward to the

county clerks. Illinois is also requiring

that one of the copies contain the

original signature of a company official.

Also, statutory citations are being

updated in subsections (b) and (c).

There are no direct counterpart Federal

regulations pertaining to an annual

submittal of affected acreage reports and

maps. However, the Director finds the

proposed revisions to 62 IAC 1816.190

(a), (b), and (c) and 1817.190 (a), (b), and

(c) would clarify and simplify the

administration of Illinois’ requirements

for these annual submittals and would

not render the Illinois regulations

inconsistent with SMCRA or the Federal

regulations.

18. 62 IAC 1816. Appendix A

Agricultural Lands Productivity

Formula—Permit Specifics Yield

Standard

a. Illinois proposed revisions to the

two existing paragraphs and reorganized

them into subsections (a) and (b),

respectively. Language is proposed at

redesignated subsection (a) to clarify

that yield standards must be calculated

for each capability class in the disturbed

area in the pit and that high capability

and limited capability lands will be

calculated in a manner similar to prime

farmland. At redesignated subsections

(a) and (b), Illinois proposed to replace

the terms ‘‘permit area and/or mining

permit area’’ with the term ‘‘pit.’’

Illinois has proposed to substitute the

term ‘‘pit’’ for ‘‘permit area’’ in

determining specific crop yield

standards. The change proposed would

alter the specific land area that would

be included in the computation of the

target yield utilizing the Illinois

Agricultural Lands Productivity

Formula (Illinois Productivity Formula).

The counterpart Federal regulation for

the establishment of yield standards on

prime farmland is 30 CFR 823.15(b)(5).

It requires that restoration of soil

productivity shall be considered

achieved when the average yield during

the measurement period equals or

exceeds the average yield of the

reference crop established for the same

period for nonmined soils of the same

or similar texture or slope phase of the

soil series in the surrounding area under

equivalent management practices.

OSM initially had a major concern

with the proposed revisions pertaining

to how the ‘‘pit’’ area was to be utilized

in calculations of the Illinois

Productivity Formula. This concern was

raised in public meetings held on May

31 and August 16, 1995. During these

meetings representatives of Illinois

explained how the area of the ‘‘pit’’

would be determined in a variety of

circumstances. During the August 16,

1995, public meeting, Illinois stated that

it would submit further clarification to

OSM. Based on the State’s clarification

in the public meetings held on May 31

and August 16, 1995 (Administrative

Record Nos. IL–1654 and IL–1662), and

the subsequent submittal to OSM of

additional clarification, including maps

defining pit areas (Administrative

Record No. IL–1663), the Director finds

that the proposed revisions are no less

effective than the Federal regulations

and is approving the revisions.

This approval is based upon Illinois

defining the use of the term ‘‘pit’’ in the

following circumstances:

(1) Single pit within a single permit—

The pit area is the same as the permit

area.

(2) Multiple pits within a single

permit—Each pit area will be clearly

marked on the permit map that has been

subjected to public review prior to

approval.

(3) Single pit within several permits

that have been consolidated into a

single permit—The pit area will be the

same as the area of the consolidated

permit.

(4) Multiple pits within several

permits that are consolidated into one

permit—Each pit area will be clearly

marked on the consolidated permit map

that has been subjected to public review

prior to approval.

In all circumstances, Illinois must

assure that the crop yield standard is

representative of the average yield of the

reference crop established for the same

period for nonmined soils of the same

or similar texture or slope phase of the

soil series in the surrounding area under

equivalent management practices.

b. New subsection (c) was added and

reads as follows:

After mining operations have ceased, the

Department shall recalculate the yield

standards for the pit based solely on the soils

which were disturbed. Recalculated targets

shall be applicable to all areas tested for

productivity subsequent to the recalculation.
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26813

Approved significant revisions after

permanent cessation of mining shall cause

the targets to be recalculated and applied to

productivity fields tested after the

recalculation.

This proposal provides that after

mining has ceased in any pit, the yield

standard would be recalculated for the

pit utilizing only those soils actually

disturbed. These recalculated yield

standards would be applicable only to

those areas not already tested. Again,

the standard to which OSM must

compare the change is the Federal

requirement that the yield standard be

developed from lands representative of

the lands mined and reclaimed. This

proposal should improve the accuracy

of the calculated yield standard as it

represents the soils actually disturbed

by mining. Therefore, the Director finds

that the proposed revisions are no less

effective than the Federal regulations.

19. 62 IAC 1816. Appendix A

Agricultural Lands Productivity

Formula; Sampling Method

Illinois proposed a revision to the

sampling method section of its

productivity formula to require the

Department and the Illinois Department

of Agriculture to jointly request the

operator to verify yields by harvest

weight for specified reasons, including

but not limited to verification of random

sampling results and availability of

sample enumerators. Prior to this

revision, only the Department could

make this request. However, as

referenced in other sections, the Illinois

Department of Agriculture works with

the Department in implementing the

Illinois Productivity Formula.

Therefore, the Director finds the

revision is not inconsistent with the

Federal regulations.

20. 62 IAC 1825.14 High Capability

Lands: Soil Replacement

Illinois added new subsection

(e)(1)(E) to specify that excessive

compaction is also indicated by other

diagnostic methods approved by the

Department, in consultation with the

Illinois Department of Agriculture and

the U.S. Department of Agriculture,

Natural Resources Conservation Service.

At subsection (e)(2), Illinois is

proposing an additional method for the

Department to evaluate excessive

compaction. The permittee will have a

choice between the existing provision

and the new provision which specifies

that compaction alleviation is required

unless the permittee can demonstrate

that the requirements of 62 IAC

1816.116 or 1816.117, as applicable,

have been met without compaction

alleviation on areas reclaimed in a

similar manner. A second new

provision in subsection (e)(2) requires

the Department to retain sufficient bond

at the time of Phase II bond release if it

determines that compaction alleviation

may be needed to achieve the

revegetation success requirements.

There are no direct counterpart

Federal regulations to Illinois’

regulations for high capability lands at

62 IAC 1825. However, the Director

finds that the revisions proposed at 62

IAC 1825.14(e) pertaining to soil

compaction alleviation do not adversely

affect other aspects of the Illinois

program and are not inconsistent with

the topsoil and subsoil provisions of the

Federal regulations at 30 CFR 816.22

and 817.22.

21. 62 IAC 1840.17 Review of Decision

Not to Inspect or Enforce

Illinois proposed to revise subsection

(a) by allowing affected persons to

request from the ‘‘Director or his or her

designee’’ a review of a decision not to

inspect or enforce. The Director finds

that the proposed language at 62 IAC

1840.17(a) is consistent with the

counterpart Federal regulation language

at 30 CFR 842.15(a).

Illinois also proposed to revise

subsection (a) by adding a new

provision that requires the request for

review to be submitted within 30 days

from the date the citizen is notified of

the decision and that specifies failure to

file a request for informal review within

this time period would result in a

waiver of the right to such review.

Although the counterpart Federal

regulation at 30 CFR 842.15(a) does not

include a deadline for filing a review

request, the Illinois requirement at 62

IAC 1840.17(a) that such requests be

filed within 30 days of the State’s

decision is not unreasonable. Using this

approach, Illinois can ensure

administrative efficiency by setting a

firm deadline for appeals, without

undue prejudice to the interest of

citizens who may be adversely affected

by the decisions not to inspect or

enforce. Illinois affirmed that persons

will be notified of this requirement via

certified mail as part of the decision

documents. Therefore, the Director finds

the State’s requirement that requests be

filed within a specified time period

ensures administrative efficiency in a

manner that is not inconsistent with

SMCRA or the Federal regulations.

However, this approval is made with the

understanding that notification of the

30-day time period within which to

request, or else waive, the right to

informal review will be included in the

notice of decision not to inspect or

enforce and that failure to include the

notification will not limit the right for

review.

Subsection (b) is proposed to be

amended by changing the reviewing

official for reviews of the authorized

representative’s decision not to inspect

or enforce from the ‘‘Supervisor of the

Land Reclamation Division’’ to the

‘‘Director or his or her designee.’’ This

change is in line with a recent

reorganization of the Illinois regulatory

authority into a Department of Natural

Resources, and it elevates the review

level to the Director of the Department

of Natural Resources. The Director finds

the revised language at 62 IAC

1840.17(b) is consistent with the

counterpart Federal regulation language

at 30 CFR 842.15(b).

Subsection (c) is proposed to be

amended to reference 62 IAC 1847.3 of

the Illinois regulations for formal

review, rather than Section 8.07 of the

State Act. The Director finds that 62 IAC

1847.3 is the correct citation since this

section contains the State’s procedures

for seeking administrative and judicial

review of formal decisions not to

inspect or enforce under 62 IAC

1840.17.

22. 62 IAC 1843.13 Suspension or

Revocation of Permits

At existing subsections (a)(1), (a)(3)

and (b) language was deleted in order to

eliminate the mandatory determination

that a pattern of violations exists under

specified conditions and to eliminate an

exception which allowed Illinois to

decline to issue a show cause order if it

determined that to issue the order

would be ‘‘demonstrably unjust.’’

Existing subsections (c), (d), (e), and (f)

were redesignated as (b), (c), (d), and (e),

respectively. The Director finds that the

deletion of the mandatory determination

and exception provision language at 62

IAC 1843.13 (a)(1), (a)(3), and (b) is

consistent with changes made to the

counterpart Federal regulations at 30

CFR 843.13 on August 16, 1982 (47 FR

35630).

23 62 IAC 1845.12 When Penalty Will

Be Assessed

As required by 30 CFR 913.16(t),

Illinois proposed to amend subsection

(d) by adding language which assures

that the Department will consider the

factors set forth in Section 1845.13 in

determining whether to assess a penalty

below $1,100. Illinois also proposed to

codify its long-standing policy of

assessing a penalty when a violation is

the permittee’s second or more related

violation within a 12-month period. The

director finds that the proposed

language is not inconsistent with the

intent of the counterpart Federal
26814 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

regulation at 30 CFR 845.12(c), and he

is removing the required amendment at

30 CFR 913.16(t).

24. 62 IAC 1847 Administrative and

Judicial Review

a. Section 1847.3 Hearings

(1) At subsection (a), Illinois is

specifying that administrative review

under this section also applies to

decisions not to inspect or enforce

under 62 IAC 1840.17, to decisions on

minor underground mine facility permit

applications pursuant to 62 IAC

1785.23, and to decisions on challenges

to ownership or control links at 62 IAC

1773.24. The regulations at 62 IAC

1847.3 consolidate the procedures for

most of the formal reviews provided for

in the Illinois program. The proposed

revision clarifies what additional

portions of the Illinois program are

covered under the administrative review

procedures at 62 IAC 1847.3.

The Federal regulations provide for

administrative hearings at 43 CFR

4.1360–1369 for permitting issues and at

43 CFR 4.1380–1387 for challenges to

ownership or control links. The Federal

regulations at 30 CFR 842.15 do not

provide for a formal adjudicatory

administrative hearing for decisions

pertaining to review of decisions not to

inspect or enforce, but do provide for a

right of appeal under 43 CFR 4.1280–

1286. The Director finds the regulations

at 62 IAC 1847.3 are consistent with 43

CFR part 4 for purposes of

administrative hearings on minor

underground mine facility permit

applications and challenges to

ownership or control links. He also

finds that allowing a formal

adjudicatory administrative hearing for

decisions pertaining to review of a

decision not to inspect or enforce is not

inconsistent with the Federal

regulations at 30 CFR 842.15.

(2) Illinois is proposing revisions at

subsections (f), (i), and (j) to clarify that

the final decision of the Department in

administrative review hearings held

under 62 IAC 1847.3 is made by the

Hearing Officer. At subsection (f),

Illinois is replacing the word

‘‘Director’s’’ with the word ‘‘final.’’ At

subsection (i), Illinois is changing the

time period from 15 to 10 days for filing

of written exceptions and responses and

requiring exceptions to be filed with the

hearing officer instead of the Director.

At subsection (j), Illinois is specifying

that if no exceptions are filed pursuant

to the hearing officer’s proposed

decision, the decision becomes final

within 10 days rather than 15 days. The

revision also adds language which

provides that the hearing officer can

affirm or modify his proposed decision

or remand and rehear the issue in

response to any exceptions filed.

The Federal regulations relative to

appeals of a variety of administrative

decisions, including 30 CFR 775.11 for

decision on permits, require that

administrative hearings under Federal

programs be governed by 43 CFR part 4,

which requires requests for review be

filed with the Office of Hearings and

Appeals, U.S. Department of the

Interior. An Administrative Law Judge

is assigned by the Office of Hearings and

Appeals and he or she issues a written

decision. A petition for discretionary

review of the written decision can then

be filed with the Board of Land Appeals.

States do not have the same hierarchy

available to them and must attempt to

create an appeal process which is as

effective as that provided in the Federal

regulations. 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. This would include the

determination of who shall make final

administrative hearing decisions.

Therefore, the Director finds that the

designation of a hearing officer to make

final administrative hearing decisions

does not render the Illinois regulations

less effective than the Federal

regulations. The Federal regulations

contain no comparable provisions to

those being revised concerning filing of

written exceptions to a hearing officer’s

decision, time limits for filing written

exceptions and responses to exceptions,

and time limits for issuance of a final

administrative decision. However, the

Director finds that these proposed

revisions will not render the regulations

at 62 IAC 1847.3 inconsistent with

SMCRA or the Federal regulations.

(3) In response to a required

amendment, Illinois proposed to revise

62 IAC 1847.3(1)(2) to specify that

judicial review of an administrative

review decision may be requested if the

hearing officer or the Department fail to

act within specified time limits. The

Federal regulations at 30 CFR

775.13(a)(2) also require that judicial

review be granted if the regulatory

authority or the hearing officer for

administrative review fail to act within

applicable time limits. Therefore, the

Director finds that Illinois’ revised

regulation is no less effective than the

counterpart Federal regulation, and he

is removing the required amendment at

30 CFR 913.16(u).

b. Section 1847.4 Citation Hearings

Illinois is proposing revisions at

subsections (g), (j), and (k) to clarify that

the final decision of the Department in

administrative review hearings

pertaining to citations is made by the

Hearing Officer. At subsection (g),

Illinois is replacing the word

‘‘Director’s’’ with the word ‘‘final.’’ At

subsection (j), Illinois is proposing to

change the time period from 15 to 10

days for filing of written exceptions and

responses. Also, they are to be filed with

the hearing officer instead of the

Director. At subsection (k), Illinois is

proposing to have the proposed decision

become final in 10 days instead of 15 if

no written exceptions are filed. Illinois

is also proposing that the hearing officer

instead of the Director issue the final

administrative decision affirming or

modifying or vacating the proposed

decision if written exceptions are filed.

These revisions are substantively

identical to those proposed for 62 IAC

1847.3 (f), (i), and (j). Therefore, the

Director is approving the proposed

revisions at 62 IAC 1847.4 (g), (j), and

(k) for the same reasons discussed in

finding C.24.a.(2) for 62 IAC 1847.3 (f),

(i), and (j).

c. Section 1847.5 Civil Penalty

Assessment Hearings

Illinois is proposing revisions at

subsections (j), (m), and (n) to clarify

that the final decision of the Department

in administrative review hearings

pertaining to civil penalty assessments

is made by the Hearing officer. At

subsection (j), Illinois is changing the

reference from the decision of the

Director to the final decision. At

subsection (m), Illinois is proposing to

change the time period from 15 to 10

days for filing of written exceptions and

responses. Also, they are to be filed with

the hearing officer instead of the

Director. At subsection (n), Illinois is

proposing to have the proposed decision

become final in 10 days instead of 15 if

no written exceptions are filed. Illinois

is also proposing that the hearing officer

instead of the Director issue the final

administrative decision affirming,

modifying, or vacating the proposed

decision if written exceptions are filed.

These revisions are substantively

identical to those proposed for 62 IAC

1847.3 (f), (i), and (j). Therefore, the

Director is approving the proposed

revisions at 62 IAC 1847.5 (j), (m), and

(n) for the same reasons discussed in

finding C.24.a.(2) for 62 IAC 1847.3 (f),

(i), and (j).
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26815

d. Section 1847.6 Show Cause

Hearings

Illinois is proposing revisions at

subsections (i), (k), and (l) to clarify that

the final decision of the Department in

administrative review hearings

pertaining to show cause orders is made

by the hearing officer. At subsection (i),

Illinois is replacing the word

‘‘Director’s’’ with the word ‘‘final.’’ At

subsection (k), Illinois is proposing to

change the time period from 15 to 10

days for filing to written exceptions and

responses. Also, they are to be filed with

the hearing officer instead of the

Director. At subsection (1), Illinois is

proposing to have the proposed decision

become final in 10 days instead of 15 if

no written exceptions are filed. Illinois

is also proposing that the hearing officer

instead of the Director issue the final

administrative decision affirming,

modifying, or vacating the proposed

decision if written exceptions are filed.

These revisions are substantively

identical to those proposed for 62 IAC

1847.3 (f), (i), and (j). Therefore, the

Director is approving the proposed

revisions at 62 IAC 1847.6 (i), (k), (l) for

the same reasons discussed in finding

C.24.a.(2) for 62 IAC 1847.3 (f), (i), and

(j).

e. Section 1847.7 Bond Forfeiture

Hearings

Illinois is proposing revisions at

subsections (h), (j), and (k) to clarify that

the final decision of the Department in

administrative review hearings

pertaining to bond forfeiture is made by

the hearing officer. At subsection (h),

Illinois is replacing the word

‘‘Director’s’’ with the word ‘‘final.’’ At

subsection (j), Illinois is proposing to

change the time period from 15 to 10

days for filing of written exceptions and

responses. Also, they are to be filed with

the hearing officer instead of the

Director. At subsection (k), Illinois is

proposing to have the proposed decision

become final in 10 days instead of 15 if

no written exceptions are filed. Illinois

is also proposing that the hearing officer

instead of the Director issue the final

administrative decision affirming,

modifying, or vacating the proposed

decision if written exceptions are filed.

These revisions are substantively

identical to those proposed for 62 IAC

1847.3 (f), (i), and (j). Therefore, the

Director is approved the proposed

revisions at 62 IAC 1847.7 (h), (j), and

(k) for the same reasons discussed in

finding C.24.a.(2) and 62 IAC 1847.3 (f),

(i), and (j).

25. 62 IAC 1848.5 Notice of Hearing

Illinois proposed new subsection (f) to

implement a July 7, 1993, amendment to

Section 2.11 of the State Act pertaining

to permit hearing notices. If the hearing

concerns review of a permit decision

under 62 IAC 1847.3, a notice

containing specified information in a

specified format shall be published in a

newspaper of general circulation

published in each county in which any

part of the area of the affected land is

located. The notice cannot be placed

where legal notices and classified

advertisements appear. The Federal

regulations at 30 CFR 775.11 for

administrative review hearings of

permitting actions do not contain this

specific requirement for a public notice.

However, the Director finds that the

addition of this new provision will not

render 62 IAC 1848.5 less effective than

the Federal regulations.

26. 62 IAC 1850 Training, Examination

and Certification of Blasters

a. Section 1850.14 Examination

Illinois proposed to amend

subsections (a) and (b) to allow

notification of examinations to be done

by telephone in those cases where it is

not possible to give such notice in

writing within the time specified in the

regulations by removing references to

written notification and notification by

letter. The Director finds that the

counterpart Federal regulations at 30

CFR 850.14 do not contain any specific

requirements for notification of blaster

certification examinations and that the

proposed revisions do not alter the

effectiveness of Illinois’ previously

approved blaster examination

provisions. Therefore, the revised

regulations at 62 IAC 1850.14 and no

less effective than the counterpart

Federal regulations.

b. Section 1850.15 Application and

Certification

Subsection (a) is proposed to be

amended by shortening the deadline for

receipt of applications for certification

from 45 days to 30 days and by

shortening the deadline for review of

applications from 30 to 15 days. Illinois

also proposed a revision that will allow

the option of including any applicant

with an application received less than

15 days before a regularly scheduled

session in that session or in the next

session. The counterpart Federal

regulation at 30 CFR 850.15(a) does not

contain specific procedures governing

applications for certification. The

Director finds the proposed revisions

will allow Illinois more flexibility in

scheduling and administering its blaster

certification examinations and will not

alter the effectiveness of Illinois’

previously approved provisions.

Therefore, the revised regulations at 62

IAC 1850.15 are no less effective than

the counterpart Federal regulations.

c. Section 1850.16 Denial, Issuance of

Notice of Infraction, Suspension,

Revocation, and Other Administrative

Actions

Illinois proposed several

nonsubstantive revisions at 62 IAC

1850.16: Subsection (b) is proposed to

be entitled ‘‘Notice of Infraction’’ and

subsection (c) is proposed to be entitled

‘‘Notice to Show Cause; at subsections

(b)(1) (A) and (D), various regulatory

and statute citations are corrected,

including the reference to SMCRA; and

it subsections (b)(3) and (c)(2) and (c)(3),

the hearing regulation reference is

corrected to reference the State’s new

section for administrative review of

blasting infractions at 62 IAC 1847.4 (e)

and (g) through (p).

Subsection (b)(3) is proposed to be

revised by clarifying the blaster is to file

a request for review and hearing of a

notice of infraction with the

Department. The specific address listed

in this subsection is removed since it is

subject to change. The blaster’s request

for review is simplified by removing a

requirement to include specified

information, which would already be

available to the Department. In

subsections (b) and (c), the hearings for

a notice of infraction and a notice to

show cause are proposed to be held at

one of the Department’s offices, and the

existing language, which limited the

hearings to two locations, is removed.

These changes will provide for greater

opportunity to hold hearings in the

locale of the requestors. The Director

finds that the proposed revisions at 62

IAC 1850.16 simplify, clarify, and

strengthen the Illinois provisions for

administrative review of blaster

certifications and are not inconsistent

with the Federal regulations at 30 CFR

850.15.

d. Section 1850.17 Judicial Review

Illinois proposed to repeal 62 IAC

1850.17 concerning judicial review for

final administrative decisions on blaster

certifications. The Director finds that

since the provision for judicial review of

these administrative decisions is

contained in previously approved 62

IAC 1847.4(p) and section 1847.4 is

referenced in all applicable sections of

62 IAC 1850, this repeal will not render

the Illinois blaster certification

regulations less effective than the

counterpart Federal regulations.
26816 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

IV. Summary and Disposition of

Comments

Public Comments

The Director solicited public

comments and provided on an

opportunity for a public hearing on the

proposed amendment on two separate

occasions. A public hearing was held on

March 24, 1995, in Galesburg, Illinois

(Administrative Record No. IL–1636).

Comments on the proposed revisions to

Illinois’ regulations were received from

Janis King, President of the Citizens

Organizing Project; Dennis Sullivan,

Vice-president of the Sauk Trail

Organization for Preservation; Roger

Holmes, President of the Knox County

Farm Bureau; Robert L. Masterson,

Zoning Administrator for the Knox

County Zoning Department; Helen

Pence; Anna Johnson and Patrick D.

Shaw, Citizens Organizing Project; Tom

Fitzgerald, Director of the National

Citizens’ Coal Law Project (NCCLP);

Robert G. Darmody, Associate Professor

of Pedology, University of Illinois, and

Keith Shank.

Following is a summary of the

substantive comments received on the

proposed amendment. Comments

identifying errors of a purely

typographical or editorial nature,

comments voicing general support or

opposition to the proposed amendment

but devoid of any specific statements,

and comments which do not specifically

relate to requirements in the proposed

regulations are not discussed. The

summarized comments and responses to

the comments are organized by the

section of the amended regulations to

which they pertain.

62 IAC 1700.11(f) Termination of

jurisdiction

Comment: To the extent that the

requirements of 62 Ill. Code 280

incorporate all of the counterpart 30

CFR Subchapter B interim program

performance standards and other

requirements, the proposed adoption of

the termination of jurisdiction

regulations appear to conform to 30 CFR

700.11(d).

Response: The Illinois regulations at

62 IAC 280 incorporate by reference the

applicable provisions of subchapter B of

the Federal regulations.

62 IAC 1701.Appendix A Definition of

Wetland

Comment 1: Two commenters

expressed concern that not requiring all

three of the wetland parameters to be

present prior to bond release could

result in environmental damage and

incomplete reclamation.

Response: As discussed in finding

C.2, Illinois’ explanation that the hydric

soil profile may not be fully developed

in an artificial wetland is consistent

with the U.S. Army Corps of Engineers’

determination that indicators of hydric

soils are usually absent in man-induced

wetlands. Furthermore, as discussed in

finding C.14.k, Illinois proposed and the

Director approved wetland revegetation

regulations at 62 IAC 1816.116(a)(5) and

1817.116(a)(5) that require the use of the

wetland vegetation criteria and

sampling procedures specified in the

U.S. Army Corps of Engineers Wetlands

Delineation Manual, Technical Report

Y–87–1. Therefore, reclaimed areas

must meet specified revegetation

success standards prior to bond release.

Comment 2: One commenter

expressed concern regarding the

requirement that a mitigated wetland

area function as a wetland to be

considered wetlands, and recommended

that it be deleted because of the possible

difficulties in applying the requirement.

The commenter expressed the belief that

all mitigation areas should be protected

regardless as to whether they exhibit

tangible wetlands functions.

Response: The proposed definition

does not conflict with any existing

Federal regulation. OSM interprets the

requirement for a functioning wetland

to be applicable to areas reclaimed as

planned wetlands which have attained

that land use as determined by a trained

professional of the State’s staff, but may

not clearly meet each of the three

parameters contained in the definition.

As discussed in finding C.2, the U.S.

Army Corps of Engineers recognizes that

man-induced wetlands (restored or

created wetland) may not contain all

three parameters.

Pre-existing wetlands mitigation

requirements and conditions relating to

surface coal mining activities are

determined by the U.S. Army Corps of

Engineers under section 404 of the

Clean Water Act. In accordance with

section 702(a)(3) of SMCRA, Federal

and State program requirements cannot

supersede, amend, modify, or repeal

requirements under section 404 of the

Clean Water Act, including mitigation

plans for those wetlands which existed

in the premining landscape and are

being replaced in accordance with a

Section 404 permit. If mitigation of preexisting wetlands is required, the mine

operator must meet the requirements

and conditions of the U.S. Army Corps

of Engineers.

However, section 515(b)(24) of

SMCRA requires surface coal mining

operations ‘‘to the extent possible using

the best technology currently available,

minimize disturbances and adverse

impacts of the operation on fish,

wildlife, and related environmental

values, and achieve enhancement of

such resources where practicable.’’

Furthermore, the Illinois program

implements this SMCRA requirement at

62 IAC 1816.97 and 1817.97 by

requiring the protection of fish, wildlife,

and related environmental values,

including wetlands.

Comment 3. One commenter believed

that the State should be requested to

commit to permit, require bonds, and

apply all reclamation to wetland

mitigation areas.

Response: As discussed above,

mitigation of pre-existing wetlands is

conducted under the authority of the

U.S. Army Corps of Engineers under

section 404 of the Clean Water Act.

Pursuant to the requirements of section

702(a)(3) of SMCRA, OSM does not have

the authority to require States to permit,

require bonds, and apply all reclamation

standards to off-site wetland mitigation

areas. Furthermore, on-site wetland

mitigation areas are subject only to

those requirements of a Federal or State

program that do not supersede, amend,

modify, or repeal requirements under

Section 404 of the Clean Water Act.

62 IAC 1701.Appendix A Definition of

Violation Notice

Comment: Two commenters were

concerned that the definition of

violation notice would not include

violations involving underground

mining operations because of its

reference to ‘‘surface coal mining

operations’’ only .

Response: Illinois’ defines ‘‘surface

coal mining operations’’ at 62 IAC

1701.Appendix A to mean ‘‘activities

conducted on the surface of lands in

connection with a surface coal mine or

subject to the requirements of Section

516 of the Federal Act, surface

operations and surface impacts incident

to an underground coal mine, the

products of which enter commerce, or

the operations of which directly or

indirectly affect interstate commerce.’’

Therefore, the proposed definition of

‘‘violation notice’’ requires Illinois to

consider violations in connection with

both surface and underground coal

mines.

62 IAC 1761.11(d)(12) [Recodfied

1761.11(a)(4)(B)] Areas Where Mining is

Prohibited or Limited

Comment: Two commenters were

concerned with the deletion of the

phrase ‘‘including surface areas

impacted by planned subsidence’’ from

this provision. One commenter believed

that the deletion ‘‘could be construed to

mean an intent to prohibit any planned
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26817

subsidence within 100 feet of a public

road, or an intent to completely

eliminate from consideration the

location of planned or unplanned

subsidence relative to public roads.’’

This commenter supported the

application to public roads.’’ This

commenter supported the application of

the 30 CFR 761.11 prohibitions to

underground mining that has the

potential to cause direct or indirect

surface impacts, and believed that

unless it can be demonstrated that

material damage will not occur from the

underground operation (planned or

room and pillar), the permit should not

be issued.

Response: The language in the revised

regulation at existing 62 IAC

1761.11(d)(2) [recodified

1761.11(a)(4)(B)] is substantively

identical to the corresponding Federal

regulation at 30 CFR 761.11(d)(2); and,

therefore, is not inconsistent with the

Federal requirements.

62 IAC 1773.15(b) Review of

Violations

Comment 1: Two commenters were

concerned that the phrase ‘‘surface coal

mining and reclamation operations’’

restricted the provision at 62 IAC

1773.15(b)(1) for evaluating violator

status of permit applicants to violations

in connection with surface coal mines.

Response: Illinois’ definition of

‘‘surface coal mining and reclamation

operations’’ at 62 IAC 1701.Appendix A

includes its definition of ‘‘surface coal

mining operations.’’ As discussed

above, under 62 IAC 1701.Appendix A,

definition of ‘‘violation notice,’’ Illinois

must consider violations in connection

with both surface and underground coal

mines.

Comment 2: One commenter objected

to the provision at 62 IAC 1773.15(b)(2)

that allows a permit to be conditionally

issued if an outstanding violation is in

the process of being corrected.

Response: The proposed regulation at

62 IAC 1773.15(b)(2) is substantively

identical to the Federal regulation at 30

CFR 773.15(b)(2), and, therefore, is not

inconsistent with the Federal

requirements.

Comment 3: One commenter

acknowledged that the State rule and

the Federal rule are identical, but

expressed the opinion that both rules

are inconsistent with the Federal Act.

Response: The appropriateness of the

Federal rule is not at issue in this

rulemaking.

62 IAC 1773.24 (b) Through (d)

Procedures for Challenging Ownership

or Control Links Show in the AVS

Comment: It is not clear from the

proposed revision to 62 IAC 1773.24 (b)

through (d), that the phrase ‘‘other

person’’ in the context of who beyond

the applicant may appeal a decision

concerning whether an ownership and

control link has been demonstrated or

rebutted, includes persons (such as

neighbors of the proposed mining

operation) who have an interest which

is or may be adversely affected by the

decision to lift an ownership and

control link and permit block.

Response: The Illinois regulation at 62

IAC 1773.24(b), as revised on November

1, 1995, specifically states that the

‘‘other person’’ must be eligible under

the provisions of subsection (a)(3). To be

eligible under the provisions of

subsection (a)(3). To be eligible under

the provisions of subsection (a)(3), the

‘‘other person’’ must be shown in the

AVS in an ownership or control link to

any person cited in a state violation

notice.

62 IAC 1773.25(c)(1)(B) Standards for

Challenging Ownership or Control Links

Comment: How can a person who

‘‘owns or controls’’ not have authority to

determine manner in which surface

mining operations are conducted? The

criteria for exclusion from responsibility

for a violation is contrary to the liability

of ownership.

Response: Illinois’ regulation at 62

IAC 1773.25(c)(1)(B) is substantively

identical to the Federal regulation at 30

CFR 773.25(c)(1)(ii). These regulations

refer to a person who is subject to a

presumption of ‘‘ownership or control.’’

This presumption is refutable under the

definition of ‘‘owned or controlled’’ or

‘‘owns or controls’’ at 30 CFR 773.5.

62 IAC 1774.13(b)(2)(E) Permit

Revisions

Comment 1: The proposed change in

this rule, to the extent that it allows an

increase in the acreages for which the

postmining land use may be changed

without public notice and comment, is

opposed as being arbitrary and

inconsistent with the purpose of the Act

of enfranchising the public in

permitting matters.

The proposal would allow a ‘‘rolling’’

5% limit, that would restart whenever

the prior land use changes had been

subject to public review, rather than

cumulating such changes. The concern

is that a 5% limit is unrelated to the

significance of the land use change,

which, depending on the type of land

and pre- and post-mining land use,

could be locally significant (i.e. high

quality farmland to hayland/pasture,

agricultural to industrial or commercial,

etc.) The NCCLP suggests that an

abbreviated public comment period

should be provided in all cases where

the post-mining land use is to be

changed, as is apparently provided with

all incidental boundary revisions.

Response: Neither SMCRA nor the

Federal regulations require a public

comment period for all postmining land

use changes. Section 511(b)(2) of

SMCRA and the Federal regulations at

30 CFR 774.13(b) require the regulatory

authority to establish guidelines for the

scale or extent of revisions for which all

the permit application requirements

will apply, including public notice. As

discussed in finding C.7.a, the Director

found that the proposed change

represents a reasonable application by

Illinois of this requirement.

Since Illinois requires all alternative

land use revisions, both significant and

insignificant, to comply with 62 IAC

1816.133 or 1817.133, the concern that

Illinois would approve a proposal to

allow a disturbed area to be restored to

a lower or a lesser land use is

unfounded. These sections of the

Illinois program pertain to postmining

land capability requirements, including

the requirement that the disturbed areas

be restored to a condition capable of

supporting prior uses or higher or better

uses. Illinois also requires consultation

with the landowner or the land

management agency with jurisdiction

over the lands before approval of either

type of revision.

Comment 2: One comment questioned

whether Illinois had a definition for

‘‘insignificant change’’ with relation to

its proposed provisions for land use

changes.

Response: Illinois does not have a

specific definition for ‘‘insignificant

change’’ in its regulations at 62 IAC

1774.13. However, subsections

1774.13(b)(2) (A) through (E) specify

departures from the methods or conduct

of mining or reclamation operations

which would not be considered

significant, including changes in land

use. Subsection 1774.13(b)(2)(E)

contains the criteria used to determine

whether a land use change is significant

or insignificant. This final

determination must be made on a caseby-case basis. As discussed in finding

C.7.a, the Federal counterpart regulation

for permit revisions at 30 CFR 774.13(b)

requires the regulatory authority to

establish guidelines for the scale or

extent of revisions.
26818 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

62 IAC 1774.13(d)(6) Incidental

Boundary Revisions

Comment: The NCCLP further

cautions against increasing the acreage

that can be added to permits under IBRs

without full-scale public review as

would attach to a permit or permit

amendment, since the use of IBRs on the

scale contained in the existing Illinois

state program is arguably inconsistent

with the federal Act. The commenter

believed that the addition of as much as

20 acres of area to existing permits

under the State’s incidental boundary

revision regulations went beyond the

intent of Congress.

Response: The Director previously

approved the existing Illinois provisions

pertaining to the size and scope of

incidental boundary revisions, and no

changes to these provisions are

proposed in this amendment. As

discussed in finding C.7.b, the Director

is approving a new provision at

subsection (d)(6) that requires public

notice and comment for all additions to

permit areas and planned subsidence

areas that are requested pursuant to

Illinois’ incidental boundary revision

regulations at 62 IAC 1774.13(d).

62 IAC 1778.15 Right of Entry

Information

Comment: The proposal to delete the

requirement of right-of-entry

information for areas overlying

underground workings is inconsistent

with the federal Act and Secretary of

Interior’s regulations and the original

requirement must be reinstated. The

requirement, hardly a ‘‘burdensome’’

matter, is a mandate for all areas within

the permit area, and the Secretary’s

regulations require that areas overlying

tunnels, shafts and underground

operations, be bonded, thus those areas

are within the permit area under 30 CFR

701.5. The commenter provided

additional argument in support of the

belief that areas overlying underground

shafts, tunnels and operations should be

subject to right-of-entry requirements,

should be included within the permit

area, and should be bonded

(Administrative Record No. IL–1643).

Response: As discussed in finding

C.8.a, OSM revised the Federal

definition of ‘‘permit area’’ and

associated terms to exclude areas

overlying underground workings (48 FR

14814, April 5, 1983). Also, the

preamble to the July 19, 1983, revisions

to the Federal bonding rules clarifies

that no bond is needed for areas

overlying underground workings (48 FR

32947–48). Therefore, the Federal

regulation at 30 CFR 778.15(a) does not

require a description of right-of-entry

documents for areas overlying

underground workings (shadow area).

The Illinois regulation at 62 IAC

1778.15(a) is substantively identical to

the Federal counterpart, and, therefore,

is not inconsistent with the Federal

requirements.

62 IAC 1785.17(a) Prime Farmlands

Comment: Three commenters objected

to the proposed deletion of provisions

that required a preliminary prime

farmland exemption review and that

limited the amount of prime farmland to

be exempted in the State.

Response: The Federal regulations do

not contain counterpart provisions to

the language deleted from the State

regulations. As discussed in finding

C.10, the revised regulation provisions

at 62 IAC 1785.17(a) are substantively

identical to the counterpart Federal

regulation provisions at 30 CFR

785.17(a), and, therefore, they are not

inconsistent with the Federal

requirements.

62 IAC 1785.17(d)(1) Consultation

With the State Conservationist

Comment: Four commenters objected

to the proposed deletion of the phrase

‘‘The State recognizes that the permit

cannot be issued without the required

consultation with the USDA’’ from 62

IAC 1785.17(d)(1).

Response: Illinois withdrew its

proposed deletion, and reinstated the

phrase at the end of 62 IAC

1785.17(d)(1).

62 IAC 1795.6(b) Eligibility for

Assistance

Comment: Eligibility for ‘‘Small

Operators Assistance Program’’ is based

on yearly productivity from an

operation covered by a single permit as

per the wording of the proposed rule.

The proposed 300,000 Tons per year

eligibility should be reduced to 100,000

Tons. The reason for this is that 300,000

Tons is too close to the following

productivity as per the Department’s

1993 Statistical Report: ASARCO Knox

County—428,546 Tons, Freeman-United

Industry, McDonough County—431,103

Tons, and Consolidated Burning Star

#2—324,555 Tons. Surely, not any of

these companies need assistance.

Response: The commenter has

misinterpreted the proposed rule. As

described in 62 IAC 1785.6 (b)(1)

through (b)(4), coal produced by other

mines and other companies in which

the applicant has an interest must be

added to the applicant’s anticipated

production. The revised regulation is

substantively identical to the Federal

regulation at 30 CFR 795.6(a)(2).

62 IAC 1795.12(b) Applicant Liability

Comment: The elimination of the

objective standard for what constitutes

‘‘good faith’’ for purposes of waiver of

the reimbursement obligation makes it

unclear whether the standard will be

one of reasonable prudence or ‘‘good

heart, empty head.’’

Response: The Federal regulation at

30 CFR 795.12(b) does not contain a

definition of ‘‘good faith.’’ Therefore,

the proposed deletion does not render

the State regulation less effective than

the Federal counterpart. The phrase

‘‘good faith’’ can be reasonably applied

within its normal meaning, and a

definition is not needed.

62 IAC 1800.5(b)(4)/1800.21(b)(1)

Irrevocable Letter of Credit

Comment: The proposal to allow

irrevocable letters of credit to be posted

by institutions chartered outside of

Illinois must retain the requirement that

there be a bank within the state

authorized to pay the letter on

presentation, since under the ‘‘full faith

and credit’’ doctrine, courts in sister

states will entertain defenses to penal

judgments obtained from a court or

agency in another state.

Response: Both 62 IAC 1800.5(b)(4)

and 1800.21(b)(1) contain a requirement

for a designated confirming bank with

an office in Illinois that is authorized to

accept, negotiate, and pay the letter

upon presentment in Illinois.

62 IAC 1800.20(b) Surety Bonds

Comment: By removing required

conditions for surety, you are removing

standards by which to determine

whether corporate surety is ‘‘good and

sufficient’’ as required by the Surface

Coal Mining Land Conservation and

Reclamation Act. 225ILCS 720/6.01(a).

This increases the chance that the

Illinois taxpayers will be the ones

ultimately required to pick up the tab if

reclamation is not completed.

Response: The counterpart Federal

regulations do not contain the

provisions proposed for deletion.

Therefore, the proposed removal of 62

IAC 1800.20(b) (2) through (5) does not

render the State regulations inconsistent

with the Federal regulations at 30 CFR

800.20(b).

62 IAC 1816/1817.13 and 1816/1817.15

Casing and Sealing of Exposed

Underground Openings

Comment: The requirement to

‘‘backfill’’ drilled holes and exposed

underground openings is less protective

than casing, sealing and otherwise

managing the holes. Depending on the

circumstances, the backfilling of a hole

with porous material can allow
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26819

migration of contaminants. On its face,

the requirement is less protective than

30 CFR 816.13, 14 and 15.

Response: Illinois withdrew its

proposed revision to these sections.

62 IAC 1816/1817.22 Topsoil and

Subsoil

Comment: Three commenters

expressed concern regarding the

removal of the provisions at 62 IAC

1816(b)(2) and 1817(b)(2) that require

topsoil plans for substitutes or

supplements for prime farmland be

considered a significant revision subject

to public review. Their major concern

was that Illinois would allow the use of

non-prime soil for substitutes or

supplements for prime farmland soils.

Response: As discussed in finding

C.14.a, the counterpart Federal

regulations at 30 CFR 816.22(b) and

817.22(b) do not contain the removed

language. However, the Director notes

that prime farmland reclamation plans,

including topsoil plans, must meet the

special environmental protection

reclamation standards for prime

farmland soils at 62 IAC 1823. This

includes the requirement at § 1823.12(a)

that reconstructed soils have equal or

greater productive capacity than what

existed before mining.

62 IAC 1816/1817.41(c)(2) Ground

Water Monitoring

Comment: To submit groundwater

monitoring data every three months is

not often enough to allow remedial

action to a problem.

Response: As discussed in finding

C.14.b, the Illinois regulations are

consistent with the Federal counterpart

regulations at 30 CFR 816.41(c)(2) and

817.41(c)(2) that require reports to be

submitted every three months or more

frequently as prescribed by the

regulatory authority.

62 IAC 1816/1817.41(e)(2) Surface

Water Monitoring

Comment: Keep requirement that

NPDES reports be sent to the

Department concurrent with those sent

to Illinois EPA.

Response: The Federal regulations do

not require that National Pollutant

Discharge Elimination System (NPDES)

reports be submitted to State regulatory

authorities. Therefore, the proposed

revisions to this section are not

inconsistent with the Federal

regulations at 30 CFR 816/817.41(e)(2).

As discussed in finding C.14.c, Illinois

has retained its requirement that surface

water monitoring data be submitted

every three months or more frequently

if necessary.

62 IAC 1816/1817.46(e)(1) Siltation

Structures; Exemptions

Comment: Two commenters

expressed concern regarding the new

exemption at 62 IAC 1816.46(e)(1) and

1817.46(e)(1) that would allow use of

the alternative sediment control

measures described in 62 IAC

1816.45(b) and 1817.45(b) in lieu of a

siltation structure for control of drainage

from disturbed areas. One commenter

expressed the belief that ‘‘the use of

siltation structures remains the BTCA

for the coal mining point source

category, and allowing alternative

sediment control measures in lieu of

siltation structures for areas defined

only as ‘small’ is not consistent with the

Secretary’s regulations.’’ One

commenter questioned: ‘‘When is the

use of straw bales to filter pit pumpage

better than a sediment pond?’’

Response: As discussed in finding

C.14.d, the Federal regulations at 30

CFR 816.46(b)(2) and 817.46(b)(2) which

require all surface drainage from a

disturbed area to be passed through a

siltation structure were suspended on

November 20, 1986 (51 FR 41957–

41958). Therefore, State regulatory

authorities may determine on a case-bycase basis what is BTCA rather than

requiring that drainage be passed

through siltation structures in all cases.

As discussed in the referenced finding,

Illinois is requiring permittees to

demonstrate that drainage from the

disturbed area will meet effluent

limitation and water quality standards

without the use of siltation structures

and will require that any alternative

sediment control measures be shown to

be the BTCA.

62 IAC 1816/1817.97 Protectio of Fish,

Wildlife, and Related Environmental

Values

Comment: Four commenters

expressed concern that the elimination

of the reference to the Illinois

Endangered Species Protection Act (520

ILCS 10/1) would remove state-listed

species from protection. Two of the

commenters were concerned that

elimination of the reference would

violate the State Act and ‘‘would be

misleading as to the obligations of

mining operations.’’

Response: Section 505(a) of SMCRA

provides that: ‘‘No State law or

regulation in effect on the date of

enactment of this Act, or which may

become effective thereafter, shall be

superseded by any provision of this Act

or any regulation issued pursuant

thereto except insofar as such State law

or regulation is inconsistent with the

provisions of this Act.’’ Therefore, if

mining operation activities are covered

under the Illinois Endangered Species

Protection Act (520 ILCS 10/1), the

removal of the reference will not affect

an operator’s obligations under this Act.

Furthermore, the State regulations at 62

IAC 1816.97(b) and 1817.97(b) and the

Federal counterpart regulations at 30

CFR 816.97(b) and 817.97(b) still require

the operator to report any state- or

federally-listed endangered or

threatened species within the permit

area and require consultation with

appropriate State and Federal fish and

wildlife agencies before allowing the

operator to proceed with mining

activity. Therefore, state endangered

species are still protected under the

Illinois program.

62 IAC 1816/1817.116(a)(2)(B) Success

of Revegetation; Extended

Responsibility Period

Comment: In the OSM publication of

the Surface Mining Act which includes

all revisions through December 31,

1993, there is at section 515(b)(20)(B) of

the Federal Act a note that this section

was added October 24, 1992. However,

in that 1993 addition there is no

mention of the date September 30, 2004.

Hence, the year 2004 should be

eliminated from the proposed rule.

Response: The commenter is correct

that in section 515(b)(20)(B) of SMCRA

the date September 30, 2004, is not

mentioned. However, section 510(e) of

SMCRA specifies that the authority of

section 515(b)(20)(B) shall terminate on

September 30, 2004. Therefore, the date

should not be eliminated from the

proposed regulation.

62 IAC 1816/1817.116(a)(2)(F) (i), (ii),

and (iii) Success of Revegetation;

Augmentation; High Capability Land

Comment: Two commenters were

concerned that the deletion of the

provisions concerning augmentation of

high capability land areas would lower

the State’s standards for reclamation of

high capability cropland areas.

Response: The deletion of these

provisions does not alter the

requirement that reclaimed high

capability cropland areas meet the

success of revegetation standards set

forth in 62 IAC 1816/1817.116(a)(3)(C)

and (a)(4).

62 IAC 1816/1817.116(a)(2)(F)(i)

Success of Revegetation; Augmentation;

Pasture and Hayland

Comment: Two commenter expressed

concern with the proposed language in

this section which stated that the period

of responsibility shall not recommence

after deep tillage on areas where the
26820 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

revegtation success standard has been

met.

Response: OSM is not approving the

proposed language. Deep tillage has not

been approved as a normal husbandry

practice in Illinois. Therefore, its use

would restart the responsibility period

as required by 30 CFR 816.116(c)(1).

62 IAC 1816/1817.116(a)(3)(E)

Revegetation Success; Ground Cover

and Production for Pasture, Hayland,

and Grazing land

Comment 1: One commenter

disagreed with the proposed deletion of

the provision that limited the

substitution of corn production for hay

production on high capability land to

one year.

Response: As discussed in finding

C.14.g, the Illinois administrative record

contains sufficient proof that high

capability land is suitable for crops and

that crop/hay rotations are common

practices in cropland areas surrounding

mines.

Comment 2: One commenter

disagreed with the proposed provision

that would allow the substitution of one

year of crop production for hay

production on limited capability land.

He was concerned that there would be

no available yield data that could be

factored into the State’s productively

formula to project a reliable yield

standard for grain crops grown on

limited capability lands.

Response: As discussed in finding

C.14.g, Illinois indicated in the

preamble to its February 3, 1995,

amendment (Administrative Record No.

IL–1615) that the proposed provision

would be applied to those limited

capability land areas that were

reclaimed to a higher quality (such as

prime farmland or high capability

standards). As noted in the referenced

finding, the Director approved this

provision to the extent that Illinois

restricts its approval to limited

capability lands that are reclaimed to a

higher quality.

62 IAC 1816/1817.116(a)(3)(F)

Revegetation Success; Non-Contiguous

Areas Less Than or Equal to Four Acres

Comment: Two commenters objected

to the language in this section which

would exempt, under certain

conditions, areas up to four acres from

any type of testing for revegetation

success.

Response: OSM is not approving the

proposal. The merit of some type of

exemption for small areas is recognized

by OSM. However, the Illinois proposal

lacks the requirements OSM believes are

necessary to implement such a proposal

(see finding C.14.h).

62 IAC 1816.116(a)(4)(A)(ii) Success of

Revegetation; Field to Represent NonContiguous Areas Less Than or Equal to

Four Acres

Comment: Six commenters objected to

the Illinois proposal in this section

which would exempt non-contiguous

areas up to four acres in size from any

type of revegetation success testing if

the Department determines that another

larger field is representative of the

smaller four acre or less area.

Response: OSM is not approving this

proposal. The Federal regulation at 30

CFR 816.116(a)(2) requires a statistically

valid sampling technique for assessing

the success of vegetation for all areas.

Illinois has not demonstrated that its

proposal would provide a statistically

valid representative test field at a 90

percent confidence interval.

62 IAC 1816/1817.116(a)(5) Success of

Revegetation; Wetlands

Comment: ‘‘Aerial coverage’’ for

measurement of success of wetland

revegetation is undefined. The success

criteria for revegetation of wetlands

should be identified in the post-mining

land use plan, and should be sufficient

to demonstrate the area is functioning as

a wetland, (not merely a final cut

impoundment) including the full range

of functions and values sought to be

replicated or restored for that wetland.

The bond should not be released

without coordination with the US Army

Corps of Engineers, and an areal

coverage of 30% is remarkably low,

leaving 70% of the area either

unvegetated or containing possibly

incompatible species. Particularly

where the wetland is a bottomland

hardwood or other intermittentlyinundated land, the vegetative success

criteria should be comparable to the

cover and revegetation requirements for

other land uses.

Response: Use of the term ‘‘aerial

coverage’’ is consistent with its usage in

the U.S. Army Corps of Engineers

Wetlands Delineation Manual.

Although, ‘‘aerial’’ is a misspelling and

it has been corrected to ‘‘areal.’’ In the

past, Illinois determined the success for

those fish and wildlife land use

reclamation plans that contained

wetland areas on a case-by-case basis.

Illinois is proposing to replace the caseby-case approach with a consistent

wetland reclamation standard. Most

final-cut impoundments would not meet

the criteria for a wetland, as these areas

are considered deepwater habitat.

However, the edges of final-cut

impoundments where water is shallow

can be developed as wetland areas.

Wetland areas intended to mitigate

pre-existing wetlands must meet the

conditions of the U.S. Army Corps of

Engineers’ 404 permit. Pursuant to the

requirements of section 702(a)(3) of

SMCRA, Federal and State program

requirements cannot supersede, amend,

modify, or repeal requirements under

Section 404 of the Clean Water Act,

including mitigation plans for those

wetlands which existed in the

premining landscape and are being

replaced in accordance with a Section

404 permit. Therefore, the revegetation

standards for wetlands proposed by the

State would not pertain to wetlands

constructed to mitigate pre-existing

wetlands. They would pertain only to

those wetlands constructed to

supplement and enhance a postmining

land use of fish and wildlife habitat.

The Federal regulations at 30 CFR 701.5,

780.25, 816.46, and 816.49

(Impoundments); 816.84(b)(1) (Coal

Mine Waste Impounding Structures);

816.97 (Protection of Fish and Wildlife);

816.102 (Backfilling and Grading);

816.111 and 816.116 (Revegetation);

816.133 (Postmining Land Use) allow

for the construction of wetlands that

supplement and enhance fish and

wildlife habitat.

Coordination with the U.S. Army

Corps of Engineers prior to bond release

of wetlands that are not under the

jurisdiction of the Corps is not required

by SMCRA or the Federal regulations.

As discussed in finding C.14.k, Illinois

submitted adequate support for its use

of a minimum 30 percent areal coverage

standard.

62 IAC 1816/1817.116(c) Success of

Revegetation; Reference Area

Comment: Six commenters objected to

the use of reference areas in lieu of

Illinois’ Agricultural Lands Productivity

Formula Sampling Method for

determining the success of revegetation

for cropland and hayland. Extensive

comments were submitted in support of

this objection.

Response: Illinois withdrew its

proposed regulations at 62 IAC

1816.116(c) and 1817.116(c) pertaining

to use of a reference area for

determining the success of revegetation

for cropland and hayland.

62 IAC 1816/1817.117(a)(3) Tree and

Shrub Vegetation on Erosion Control

Structures

Comment: One commenter was

concerned that operators will not be

required to plant trees and shrubs on

erosion control structures, including

pond embankments.

Response: As discussed in finding

C.14.m, the planting of trees and shrubs
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26821

on the embankments of erosion control

structures is not a sound engineering

practice. A herbaceous ground cover

will be required for these areas.

62 IAC 1816/1817.117(b) Tree and

Shrub Vegetation, Woody Plants

Comment: One commenter was

concerned that the new provision

pertaining to a case-by-case approval of

planting arrangements for wildlife areas

would eliminate the requirement that an

operator must plant trees and shrubs on

areas to be developed for fish and

wildlife habitat or recreation areas.

Response: Illinois’ regulation at 62

IAC 1816/1817.117(b) still requires that

these areas have a minimum population

of 250 trees or shrubs per acre. The new

provision allows operators to request

approval for optional planting designs

rather than requiring uniform planting

arrangements for all mined wildlife and

recreation areas.

62 IAC 1816/1817.190(a) Affected

Acreage Map

Comment: This change would

eliminate sending maps and reports on

affected acreage to county clerks. We

object to deletion of the phrase ‘‘and to

the county clerk.’’ This deletion would

further deny local government its role in

protecting natural resources, a role

already deeply invaded by the fossil fuel

preemption.

Response: Illinois’ proposed revision

at subsection (b) requires the operator to

submit an additional copy of the

affected acreage report and maps for

each county in which the permit is

located and requires the Department to

forward those additional copies to the

county clerk(s). Therefore, Illinois is

now assured that a copy of the affected

acreage report and map goes to the

county.

62 IAC 1816/1817.190(b) Affected

Acreage Map

Comment: What do words, ‘‘Also,

statutory citations are being updated in

subsection (b)’’ as found in the Federal

Register mean?

Response: Citations to and titles of

statutes have been updated to reflect

Illinois’ new statutory codification

system.

62 IAC 1816. Appendix A Agricultural

Lands Productivity Formula Permit

Specific Yield Standard; Subsections

(a), (b), and (c)

Comment 1: One commenter raised

the concern that the proposed change

from permit area to pit area will need

to be ‘‘fine turned’’ and that the issue

when a pit lies in more than one county

should be addressed.

Response: OSM has determined that

the State’s proposal to utilize pit area

instead of permit area will meet the

requirements of 30 CFR 823.15 in

providing a representative standard.

Existing Illinois regulations require the

State to utilize data from the county in

which the area being tested is located.

Comment 2: One commenter

expressed several concerns with the

Illinois proposal to utilize only the

lands disturbed within the pit area in

the Illinois productivity formula once

mining has ceased. These concerns

included the proposal not to apply the

recalculated standard to areas

previously tested.

Response: The requirement under the

Federal regulations is to obtain the most

representative sample of the mined and

reclaimed areas. OSM believes the

Illinois proposal meets that

requirement. Because the Illinois

formula results in annual targets based

upon year-specific climatological data

and yield data, it would not be

appropriate to apply the recalculated

standard retroactively.

Comment 3: One commenter raised

the issue of landowner comment

opportunities in relation to the change

from permit area to put area. The

concern was that the target yields could

change because of the recalculation at

the tie of cessation of mining and the

landowner would not be offered the

opportunity to comment at the time of

the change.

Response: OSM required Illinois to

clarify how the pit area would be

defined under a variety of

circumstances. This was done to assure

that the pit area was not only truly

representative of the mined and

reclaimed area, but also to assure the pit

area was always a clearly defined area.

Illinois provided the information

needed to resolve these concerns. In

finding C.18, OSM made it clear that

Illinois must interpret the rule in a

manner which assures the use of

representative areas and results in a

clear and consistent delineation of the

pit area. The possible circumstances for

which OSM sought clarification and the

associated opportunities for public

comment are listed below.

(1) Single pit within a single permit.

The pit area would be the same as the

permit area, and thus the change from

permit to pit would not affect the

opportunity to comment.

(2) Multiple pits within a single

permit. Each pit area will be clearly

marked on the permit map, and will be

subject to public comment as part of the

permitting process.

(3) Single pit within several permits

that have been consolidated into a

single permit. Public review will occur

at the time of consolidation.

(4) Multiple pits within several

permits that are consolidated into one

permit Each pit area will be clearly

marked on the consolidated permit map

that will be subject to public review

prior to approval.

Thus the opportunity to comment

should be available whenever a change

in the pit area is made.

Comment 4: One commenter was

concerned with the provision at

subsection (c) that requires yield targets

to be recalculated if a significant

revision is proposed after permanent

cessation of mining. She wanted to

know why Illinois would allow a

‘‘significant revision’’ after permanent

cessation of mining.

Response: Illinois’ regulations at 62

IAC 1774.13(b)(2) require significant

revisions to a permit be obtained for

changes in reclamation operations when

such changes constitute a significance

departure from the method

contemplated by the original permit.

Since reclamation operations are ongoing after permanent cessation of

active coal mining, significant revisions

to reclamation plans may be proposed.

62 IAC 1816. Appendix A Agriclutural

Lands Productivity Formula Permit

Specifics Yield Standard; Subsections

(d) and (f)

Comment: Extensive comments were

received from five commenters

opposing proposed provisions to be

added at subsection (d) that required

annual target yield adjustments to be

based on the county with the greater

permit acreage if a mining pit was

present in more than one county and

subsection (f) that allowed Illinois to

consolidate prime farmland and high

capability target yields.

Response: These proposed provisions

were withdrawn.

62 IAC 1817.121(c)(3) Subsidence

Control

Comment: Subsidence from

underground mining requires operators

to supply any residential, etc. water lost

from underground mining but for how

long the operator is obligated for water

replacement is not stated.

Response: Although the Illinois

regulation does not specifically state

that its requirement is for permanent

water replacement, the word ‘‘replace’’

within the regulation indicates

permanency. OSM’s definition of

‘‘Replacement of water supply’’ at 30

CFR 701.5 clarifies that permanent

water replacement is required.

‘‘Replacement of water supply means,

with respect to protected water supplies
26822 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

contaminated, diminished, or

interrupted by coal mining operations,

provisions 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.’’ (60 FR

16722, March 31, 1995).

As noted in finding C.15, primacy

states, including Illinois, will be

notified pursuant to the provisions of 30

CFR 732.17(d) of the additional Federal

water supply replacement requirements

and related subsidence damage repair

requirements that are not currently

contained within their programs. This

will include notification of a

requirement for a definition consistent

with the Federal definition at 30 CFR

701.5 pertaining to water replacement.

62 IAC 1840.11(h)(2) Inspections by

the Department; Abandoned Site

Comment: One commenter believed

that Illinois should provide written

notice to the county clerk(s) of the

counties affected at the time public

notice was provided of an alternate

inspection frequency for an abandoned

site.

Response: The counterpart Federal

regulations at 30 CFR 840.11(h)(2) do

not contain specific provision for

written notice to the county clerk(s).

However, both the Federal regulations at

30 CFR 840.14(c) and the Illinois

regulations at 62 IAC 1840.14(c) provide

that copies of all records, reports,

inspection materials, and other subject

information or a description of the

information will be made available for

public inspection at a Federal, State or

local government office in the county

where the mining is occurring. Illinois

has historically sent this type of

information to the county clerk(s).

62 IAC 1840.17(a) Review of Decision

Not To Inspect or Enforce

Comment 1: The inclusion of a 30-day

period in which to file a request for

informal review of a decision not to

inspect or enforce is more restrictive of

the right of the public to administrative

review procedures at the state level than

is provided by the Secretary’s

regulations, and must be disapproved.

Response: To require that requests for

a review be filed within a specified time

period assures administrative efficiency

in a manner that is not inconsistent with

SMCRA or the Federal regulations.

Using this approach, Illinois can ensure

administrative efficiency by setting a

firm deadline for appeals, without

undue prejudice to the interests of

citizens who may be adversely affected

by decisions not to inspect or enforce.

Comment 2: In order for this waiver

to be fair, an addition to this section

should be added which requires that the

citizen be informed by certified mail

that the right to appeal to the director

for informal review must be made

within 30 days or that right is waived.

Without this requirement, the citizen

could lose a right without that citizen

knowing that their right was lost.

Response: The 30 day period begins

when the citizen is notified of Illinois’

decision, which is done by certified

mail. Illinois has indicated that this

notification will include language

informing the recipient of the 30-day

time period within which to request, or

else waive, the right to informal review.

As discussed in finding C.21, the

proposed revision is being approved

with the understanding that notification

of the 30-day time period will be

included in the notice of decision not to

inspect or enforce and that failure to

include the notification will not limit

the right for review.

62 IAC 1840.17(c) Review of Decision

Not To Inspect or Enforce; Formal

Review

Comment: Two commenters were

concerned how the reference to formal

review under 62 IAC 1847.3 would

relate to formal review of a decision not

to inspect or enforce since the current

provisions of § 1847.3 pertained to

permitting actions. They recommended

that the subsection be rewritten without

reference to specific provisions.

Response: Illinois proposed a revision

to its regulations at 62 IAC 1847.3 that

provides for administrative review of

decisions not to inspect or enforce

under 62 IAC 1840.17 (see finding C.21).

62 IAC 1843.23 Enforcement Actions

at Abandoned Sites

Comment: This provision does not

promulgate a responsive action to the

problems of violators who abandon

mining sites. It appears geared towards

allowing the Department to refrain from

doing a useless thing, but does not state

the Department’s policy in enforcing

violations of State and Federal law at

abandoned sites.

Response: The proposed regulation is

substantively identical to the

counterpart Federal regulation at 30

CFR 843.22.

62 IAC 1847.3 Administrative and

Judicial Review; Hearings

Comment: The inclusion of formal

review of decisions not to inspect or

enforce in section 1847.3 is of concern

because the section is triggered by

notice to the permit applicant rather

than notice to the party who requested

the inspection and enforcement action.

The right to informal and formal review

of such decisions, as well as all other

actions of the agency, are triggered by

notice to the party rather than the

applicant.

Response: Section 1847.3 is not

necessarily triggered by notice to the

permit applicant. The Illinois regulation

at 62 IAC 1840.17(b) requires the

Director or his or her designee to inform

the person, in writing, of the results of

an informal review of an authorized

representative’s decision not to inspect

or enforce. OSM has verified several

times over the past years, through its

oversight activities, that these letters are

mailed via certified mail to the person

who requested the action. It is the

receipt of this decision which triggers

the 30-day time limit within which to

request formal review under the

provisions of section 1847.3, as

authorized by 62 IAC 1840.17(c).

62 Ill. Adm. Code 1847.3(i), (j);

1847.4(j), (k); 1847.5(m), (n); 1847.6(k),

(l); and 1847.7(j), (k) Hearing Officer’s

Proposed Decision

Comment 1: Two commenters were

concerned that written exceptions to the

hearing officer’s proposed decision are

to be filed with the hearing officer

instead of the Director and that written

exceptions and responses to exceptions

are to be filed within 10 rather than 15

days.

Response: As discussed in finding

C.24.a.(2), 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. The Federal regulations

contain no comparable provisions for

filing of written exceptions to a

proposed decision, filing of responses to

written exceptions, or time limitations

for these filings. However, the proposed

revisions are not inconsistent with

SMCRA or the Federal regulations.

Comment 2: One commenter was

concerned that the Illinois regulatory

authority might be absolved of the

responsibility for administrative

decisions if a hearing officer was

allowed to make the decisions.

Response: The Illinois regulations at

62 IAC 1847 provide that the hearing

officer’s decision is the Department’s

final administrative decision. Pursuant

to 62 IAC 1847, final administrative

decisions are subject to judicial review

in accordance with the Illinois
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26823

Administrative Review Law (735 ILCS

5/3).

62 IAC 1848.5(f) Notice of Hearing

Comment 1: One commenter was in

agreement with the proposed provisions

that would require certain specifications

for legal notices of hearings, but

questioned the prohibition in this

proposed subsection against inclusion

of hearing notices among other legal

notices in the paper.

Response: The prohibition against

inclusion of these hearing notices in

that portion of the paper where legal

notices appear is a statutory prohibition

which was requested by Knox County

citizens when section 2.11(c) of the

Surface Coal Mining Land Conservation

and Reclamation Act, 225 ILCS 720, was

amended in 1993. Neither SMCRA nor

the Federal regulations specify the

portion of the newspaper wherein the

public notice of a hearing must appear.

Comment 2: One commenter believed

that § 1848.5(f) should include a

provision for notification of the country

clerk of the county affected.

Response: Neither SMCRA nor the

Federal regulations require that a

separate notice of an administrative

hearing be sent to the county clerk of

the county affected.

Comment 3: One commenter objected

to the last sentence of the provision that

was proposed in the original

amendment: ‘‘Any deviations from the

requirements of this subsection

attributable to the publishing newspaper

shall not be grounds for postponement

of continuance of the hearing, nor will

such errors necessitate that the notice be

republished.’’

Response: In the revised amendment

dated November 1, 1995, Illinois

removed this sentence from § 1848.5(f).

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i),

the Director solicited comments on the

proposed amendment from various

Federal agencies with an actual or

potential interest in the Illinois program

(Administrative Record Nos. IL–1618

and IL–1664). The Natural Resources

Conservation Service (NRCS)

commented on March 15, 1995

(Administrative Record No. IL–1631),

that the State should withdraw its

proposal to remove the language ‘‘The

state recognizes that the permit cannot

be issued without the required

consultation with USDA’’ from section

1785.17(d)(1). OSM notes that Illinois

withdrew this proposed revision, and

the indicated language was retained.

On June 7, 1995 (Administrative

Record No. IL–1657), and July 20, 1995

(Administrative Record No. IL–1661),

the Natural Resources Conservation

Service (NRCS) offered comments on

the following three sections:

62 IAC 1816/1817.116(a)(3)(E) NRCS

commented that the Service did not

object to the substitution of one year of

crop production for one year of hay

production on limited capability lands

if the Department determines the

practice is proper management. OSM

notes that Illinois included language in

this section which requires such

determination before the substitution

can be made.

62 IAC 1816.116(a)(3)(F) NRCS

believed the proposed revision was not

specific enough as to the types of

activities which would qualify under

this section, the maximum area of

disturbance should be specified, and the

term minimal soil disturbance should be

defined. NRCS also commented that

they concurred with the State’s

objective in proposing the rule. OSM is

not approving this rule because it would

exempt areas as large as four acres from

any type of revegetation success testing.

OSM does not agree that it would be

possible to list all of the activities that

may occur on these small areas. Should

the State of Illinois resubmit language

limiting the exemption to a smaller area,

the demonstration required by the

operator will have to be more

thoroughly addressed. NRCS also

commented that deep tillage should be

required for any areas exempted under

this section. OSM believes that the

requirement for deep tillage should be

made on a case by case basis. The State

regulatory Authority would make the

decision as part of its determination

pertaining to the operator’s

demonstration.

62 IAC 1816.116(a)(4)(A)(ii). NRCS

affirmed its support for the proposal to

include small areas with representative

larger fields if the terms

‘‘representative,’’ ‘‘small,’’ and

‘‘isolated’’ are better defined. The

Service also pointed out the importance

of a reliable sampling method. OSM is

not approving this rule because Illinois

has not demonstrated that the test plot

would provide a statistically valid

sample at a 90 percent confidence

interval.

62 IAC 1816. Appendix A NRCS

raised the issue as to whether the

proposal to base yield calculations on

pit areas rather than permit areas would

allow operators to ‘‘shop’’ for the best

standard in terms of meeting the

required yield. OSM had the same

concern initially, but determined that, at

any one time, the pit area will be a finite

area defined by specific boundaries and

that is the only area upon which

calculations can be based. There can be

no shopping. OSM is approving the

change to pit area.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii),

OSM is required to obtain the written

concurrence of the EPA with respect to

those provisions of the proposed

program amendment that relate to air or

water quality standards promulgated

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,

OSM did not request EPA’s

concurrence.

Pursuant to 732.17(h)(11)(i), OSM

solicited comments on the proposed

amendment from EPA (Administrative

Record Nos. IL–1618 and IL–1664. EPA

responded on February 24, 1995, that

‘‘* * * the definition of hydric soils in

the wetland definition can be

interpreted, by some readers, to mean

being inundated greater than 50 percent

of the time. It would be clearer to adopt

the definition used by the National

Technical Committee on Hydric Soils

and the Food Security Act Manual,

Third Edition: ‘A soil that is saturated,

flooded, or ponded long enough during

the growing season to develop anaerobic

conditions in the upper part.’ This

would also be consistent with the

definition of hydric soils in the 1987

Corps Wetland Delineation Manual.’’

(Administrative Record No. IL–1623).

As discussed in finding C.2, OSM

found that the proposed definition is

not inconsistent with SMCRA or the

Federal regulations. Illinois clarified its

meaning of hydric soil in the comment

section of its November 1, 1995, revised

amendment (Administrative Record No.

IL–1663): ‘‘The explanation of hydric

soil appearing in the wetlands

definition is intended only as a

supplemental explanation of the term

‘hydric soil’ in layman’s terms and is

not intended to be a legal definition of

the term. Any determination of hydric

soils would be in accordance with the

technical guidelines of the 1987 Corps

Manual * * * *’’

State Historical Preservation Officer

(SHPO) and the Advisory Council on

Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM

is required to solicit comments on

proposed amendments which may have

an effect on historic properties from the

SHPO and ACHP. OSM solicited

comments on the proposed amendment

from the SHPO and ACHP

(Administrative Record No. IL–1618 and

IL–1664). The SHPO responded on
26824 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

March 3, 1995, that ‘‘In our opinion, this

amendment is consistent with section

106 of the National Historic

Preservation Act, as amended, and its

implementing regulations 36 CFR part

800, Protection of Historic Properties’’

(Administrative Record No. IL–1624(A).

V. Director’s Decision

Based on the above findings, the

Director approves, with certain

exceptions and additional requirements,

the proposed amendment as submitted

by Illinois on February 3, 1995, and as

revised on November 1, 1995.

With the requirement that Illinois

further revise its regulations, the

Director does not approve, as discussed

in: finding No. C.14.f.(2), 62 IAC

1816.116(a)(2)(F)(i) and

1817.116(a)(2)(F)(i), concerning

augmentation of pasture, hayland, and

grazing land; finding No. C.14.h, 62 IAC

1816.116(a)(3)(F) and 1817.116(a)(3)(F),

concerning the revegetation success

standards for non-contiguous areas less

than or equal to four acres; and finding

No. C.14.i, 62 IAC 1816.116(a)(4)(A)(ii),

concerning approval of the success of

revegetation for a representative field

being used in determining the success of

revegetation on non-contiguous areas

less than or equal to four acres.

In accordance with 30 CFR

732.17(f)(1), the Director is also taking

this opportunity to clarify in the

required amendment section at 30 CFR

913.16 that, within 60 days of the

publication of this final rule, Illinois

must either submit a proposed written

amendment, or a description of an

amendment to be proposed that meets

the requirements of SMCRA and 30 CFR

Chapter VII and a timetable for

enactment that is consistent with

Illinois’ established administrative

procedures.

The Federal regulations at 30 CFR

Part 913, codifying decisions concerning

the Illinois program, are being amended

to implement this decision. This final

rule is being made effective immediately

to expedite the State program

amendment process and to encourage

States to bring their programs into

conformity with the Federal standards

without undue delay. Consistency of

State and Federal standards is required

by SMCRA.

Effect of Director’s Decision

Section 503 of SMCRA provides that

a State may not exercise jurisdiction

under SMCRA unless the State program

is approved by the Secretary. Similarly,

30 CFR 732.17(a) requires that any

alteration of an approved State program

be submitted to OSM for review as a

program amendment. In the oversight of

the Illinois program, the Director will

recognize only the statutes, regulations

and other materials approved by OSM,

together with any consistent

implementing policies, directives and

other materials, and will require the

enforcement by Illinois of only such

provisions.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) and has

determined that, to the extent allowed

by law, this rule meets the applicable

standards of subsections (a) and (b) of

that section. However, these standards

are not applicable to the actual language

of State regulatory programs and

program amendments since each such

program is drafted and promulgated by

a specific State, not by OSM. Under

sections 503 and 505 of SMCRA (30

U.S.C. 1253 and 1255) and 30 CFR

730.11, 732.15, and 732.17(h)(10),

decisions on proposed State regulatory

programs and program amendments

submitted by the States must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and whether the other requirements of

30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is

required for this rule since section

702(d) of SMCRA (30 U.S.C. 1292(d))

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

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.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 913

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 10, 1996.

Brent Wahlquist,

Regional Director, Mid-Continent Regional

Coordinating Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations 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 by

adding paragraph(s) to read as follows:

§ 913.15 Approval of regulatory program

amendments.

* * * * *

(s) With the exception of 62 IAC

1816.116(a)(2)(F)(i) and

1817.116(a)(2)(F)(i), concerning

augmentation of pasture, hayland, and

grazing land; 62 IAC 1816.116(a)(3)(F)

and 1817.116(a)(3)(F), concerning the

revegetation success standards for noncontiguous areas less than or equal to

four acres; and 62 IAC

1816.116(a)(4)(A)(ii), concerning use of

a representative field to determine

success of revegetation on noncontiguous areas less than or equal to

four acres, the amendment submitted by

Illinois to OSM by letter dated February

3, 1995, and as revised and

supplemented with explanatory

information on November 1, 1995, is

approved effective May 29, 1996.

3. Section 913.16 is amended by

removing and reserving paragraphs (s),
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26825

(t), and (u) and by adding paragraphs

(w), (x), and (y) to read as follows:

§ 913.16 Required program amendments.

* * * * *

(s)–(u) [Reserved]

* * * * *

(w) By July 29, 1996, Illinois shall

submit either a proposed amendment or

a description of an amendment to be

proposed, together with a timetable for

adoption of proposed revisions to

remove the regulation provisions at 62

IAC 1816.116(a)(2)(F)(i) and

1817.116(a)(2)(f)(i), concerning the

authority to approve augmentative

practices without restarting the period

of extended responsibility for

revegetation success and bond liability

for pasture, hayland, and grazing land,

from Chapter I, Title 62 of the Illinois

Administrative Code.

(x) By July 29, 1996, Illinois shall

submit either a proposed amendment or

a description of an amendment to be

proposed, together with a timetable for

adoption of proposed revisions to

remove the regulations at 62 IAC

1816.116(a)(3)(F) and 1817.116(a)(3)(F),

concerning the revegetation success

standards for non-contiguous areas less

than or equal to four acres that would

not require statistically valid sampling

techniques be used to evaluate success

of revegetation, from Chapter I, Title 62

of the Illinois Administrative Code.

(y) By July 29, 1996, Illinois shall

submit either a proposed amendment or

a description of an amendment to be

proposed, together with a timetable for

adoption of proposed revisions to

remove the provision at 62 IAC

1816.116(a)(4)(A)(ii), concerning

revegetation success for a larger field

being representative of the revegetation

success of a non-contiguous reclaimed

area less than or equal to four acres,

from Chapter I, Title 62 of the Illinois

Administrative Code.

[FR Doc. 96–13267 Filed 5–28–96; 8:45 am]

BILLING CODE 4310–05–M

30 CFR Part 931

[SPATS No. NM–036–FOR]

New Mexico Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of

amendment with one exception and

additional requirements.

SUMMARY: Office of Surface Mining

Reclamation and Enforcement (OSM) is

approving, with one exception and

additional requirements, a proposed

amendment to the New Mexico

regulatory program (hereinafter referred

to as the ‘‘New Mexico program’’) under

the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). New

Mexico proposed revisions to and/or

additions of rules pertaining to

definitions; procedures for designating

lands unsuitable for coal mining; permit

application requirements concerning

compliance information, the

reclamation plan, and the subsidence

information and control plan;

procedures concerning permit

application review; criteria for permit

approval or denial; procedures

concerning improvidently issued

permits; permit conditions;

requirements concerning ownership and

control information; and performance

standards for coal exploration,

hydrologic balance, permanent and

temporary impoundments, coal

processing waste, disposal of noncoal

waste, protection of fish, wildlife, and

related environmental values,

revegetation success, subsidence

control, and roads. The amendment was

intended to revise the New Mexico

program to be consistent with the

corresponding Federal regulations,

incorporate the additional flexibility

afforded by the revised Federal

regulations, and improve operational

efficiency.

EFFECTIVE DATE: May 29, 1996.

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (505) 248–

5070.

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico

Program

On December 31, 1980, the Secretary

of the Interior conditionally approved

the New Mexico program. General

background information on the New

Mexico program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval of the New Mexico program

can be found in the December 31, 1980,

Federal Register (45 FR 86459).

Subsequent actions concerning New

Mexico’s program and program

amendments can be found at 30 CFR

931.11, 931.15, 931.16, and 931.30.

II. Proposed Amendment

By letter dated January 22, 1996, New

Mexico submitted a proposed

amendment to its program

(administrative record No. NM–766)

pursuant to SMCRA (30 U.S.C. 1201 et

seq.). New Mexico submitted the

proposed amendment at its own

initiative and in response to the

required program amendments at 30

CFR 931.16 (a), (c), (d), (f) through (p),

and (n)(2) through (s) (55 FR 48841,

November 23, 1990; 56 FR 67520,

December 31, 1991; and 58 FR 65907,

December 17, 1993).

OSM announced receipt of the

proposed amendment in the February 1,

1996, Federal Register (61 FR 3625),

provided an opportunity for a public

hearing or meeting on its substantive

adequacy, and invited public comment

on its adequacy (administrative record

No. NM–767). Because no one requested

a public hearing or meeting, none was

held. The public comment period ended

on March 4, 1996.

During its review of the amendment,

OSM identified concerns relating to the

certain provisions of the proposed

amendment. OSM notified New Mexico

of the concerns on March 13, 1996

(administrative record No. NM–774).

New Mexico responded on March 13,

1996, that it would not submit revisions

to the amendment and that OSM should

proceed with the publishing of this final

rule Federal Register notice

(administrative record No. NM–774).

III. Director’s Findings

As discussed below, the Director, in

accordance with SMCRA and 30 CFR

732.15 and 732.17, finds, with certain

exceptions and additional requirements,

that the proposed program amendment

submitted by New Mexico on January

22, 1996, is no less effective than the

corresponding Federal regulations.

Accordingly, the Director approves,

with one exception, the proposed

amendment and adds additional

requirements.

1. Nonsubstantive Revisions to New

Mexico’s Rules

New Mexico proposed revisions to the

following previously-approved rules

that are nonsubstantive in nature and

consist of minor editorial changes or

recodification (corresponding Federal

regulation provisions are listed in

parentheses):

Coal Surface Mining Commission (CSMC)

Rule 80–1–11–20(d) (30 CFR 773.20(c)),

concerning remedial measures for

improvidently issued permits, to recodify

existing CSMC Rule 80–1–11–20(c) as CSMC

Rule 80–1–11–20(d);

CSMC Rule 80–1–20–41(e)(3)(i) (30 CFR

816.41 (c)(3) and (e)(3) and 817.41 (c)(3) and

(e)(3)), concerning general performance

standard requirements for protection of the

hydrologic balance, to correctly reference

CSMC 80–1–20–41(e)(2)(i); and

CSMC Rule 80–1–20–82(a)(4) (30 CFR

816.71(h) and 817.71(h)), concerning

inspections of coal processing waste banks,

to correctly reference ‘‘Part 9’’ of New

Mexico’s rules.

CSMC Rule 80–1–20–89(d)(2) (30 CFR

816.89(b)), concerning disposal of noncoal