[Federal Register Volume 64, Number 26 (Tuesday, February 9, 1999)]
[Rules and Regulations]
[Pages 6191-6201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3129]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 913
[SPATS No. IL-094-FOR]
Illinois Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving amendments to the Illinois regulatory program
(Illinois program) under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). The
[[Page 6192]]
Illinois Department of Natural Resources (Department) sent us revisions
to the Illinois statutes pertaining to definitions and areas unsuitable
for surface coal mining operations. The Department also proposed
revisions to and additions of regulations concerning a definition for
``previously mined area,'' areas unsuitable for surface coal mining
operations, permitting, violation information, impoundments,
explosives, revegetation, prime farmland, bonding, administrative and
judicial review, and blasters certification. The amendments are
intended to revise the Illinois program to be consistent with the
corresponding Federal regulations and SMCRA, to clarify existing
regulations, and to improve operational efficiency.
EFFECTIVE DATE: February 9, 1999.
FOR FURTHER INFORMATION CONTACT:
Andrew R. Gilmore, Director, Indianapolis Field Office, Office of
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal
Building, 575 North Pennsylvania Street, Room 301, Indianapolis,
Indiana 46204-1521. Telephone: (317-226-6700. Internet:
[email protected]
SUPPLEMENTARY INFORMATION:
I. Background on the Illinois Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Illinois Program
On June 1, 1982, the Secretary of the Interior conditionally
approved the Illinois program. You can find background information on
the Illinois program, including the Secretary's findings, the
disposition of comments, and the conditions of approval in the June 1,
1982, Federal Register (47 FR 23883). You can find later actions
concerning the Illinois program at 30 CFR 913.15, 913.16, and 913.17.
II. Submission of the Proposed Amendment
By letter dated March 28, 1996 (Administrative Record No. IL-5020),
the Department notified us of revisions to the Illinois Surface Coal
Mining Land Conservation and Reclamation Act (State Act) that were
enacted through House Bill (HB) 965 and signed into law by the Governor
of Illinois on February 7, 1996. These revisions primarily address
changes brought about by the July 1, 1995, reorganization and name
change of the Illinois regulatory authority. Revisions were made to 225
ILCS 720/1/.03, Definitions; 225 ILCS 720/7.03, Procedures for
designation of areas unsuitable for mining operations; and 225 ILCS
720/7.04, Land Report.
By letter dated February 26, 1998 (Administrative Record No. IL-
5009), the Department submitted a proposed amendment to revise its
regulations at Title 62 of the Illinois Administrative Code (62 IAC).
The amendment responded to letters dated January 6, 1997, and June 17,
1997 (Administrative Record Nos. IL-1951 and IL-2000, respectively),
that we sent to Illinois in accordance with 30 CFR 732.17(c). It also
responded to required program amendments at 30 CFR 913.16(w) and (y).
In addition, the Department amended the Illinois program to clarify
existing regulations and to implement the statutory changes made by HB
965.
We announced receipt of the amendments in the April 6, 1998,
Federal Register (63 FR 16719). In the same document, we opened the
public comment period and provided an opportunity for a public hearing
or meeting on the adequacy of the amendment. The public comment period
closed on May 6, 1998. Because no one requested a public hearing or
meeting, we did not hold one.
During our review of the amendment dated February 26, 1998, we
identified concerns relating to 62 IAC 1773.15(c)(11), written findings
for permit application approval; 62 IAC 1778.14(c), required
information in permit applications; 62 IAC 1816.116 and 1817.116,
revegetation standards; 62 IAC 1816.117(c)(3) and 1817.117(c)(3), tree
and shrub vegetation; 62 IAC 1847.3(g), burden of proof for permit
hearings; 62 IAC 1847.9(g), burden of proof for bond release hearings;
and editorial errors in various regulations. We notified the Department
of these concerns by fax on June 2, 1998 (Administrative Record No. IL-
5019). By letter dated November 5, 1998 (Administrative Record No. IL-
5025), the Department sent us additional explanatory information and
revisions to its program amendment.
Based upon the additional explanatory information and revisions, we
reopened the public comment period in the November 16, 1998, Federal
Register (63 FR 63628). The public comment period closed on December 1,
1998.
III. Director's Findings
Following, under SMCRA and the Federal regulations at 30 CFR 732.15
and 732.17, are our findings concerning the amendment.
A. Revisions to Illinois' Regulations That Are Not Substantive
1. Throughout the amended regulation sections discussed below, the
Department corrected typographical errors, punctuation, citation
references, and other editorial-type errors; made minor wording
changes; simplified its use of numbers; changed specific references of
the ``Illinois Department of Mines and Minerals'' to the ``Illinois
Department of Natural Resources'' to reflect a reorganization change
which was effective July 1, 1995; changed its citation references of
the ``Ill. Rev. Stat. 1989, ch 96\1/2\, pars. 7901.01 et seq.'' to
``225 ILCS 720'' to reflect recodification of the Illinois Surface
Mining Land Conservation and Reclamation Act that occurred in 1992; and
changed all references of the ``Soil Conservation Service'' to the
``Natural Resources Conservation Service'' to reflect that Federal
agency's name change. The Department also made some of the same types
of corrections and changes in 62 IAC 1764.13, 1773,11, 1774.11,
1816.117, 1817.117, 1823.14, 1840.1, and 1850.16.
The above proposed revisions do not alter the requirements of the
previously approved provisions in the Illinois regulations.
Therefore,we find that they will not make the Illinois regulations less
effective than the Federal regulations.
2. 62IAC 1761.12, Procedures for Areas Designated by Act of
Congress. At subsection (b)(1), the Department removed the reference to
section 1761.11(f) or (g). In subsection (b)(2), the Department
replaced the reference to ``Section 1761.11(a), (f) or (g)'' with a
reference to ``Section 1761.11(a)(6) and (7).'' At subsection (c), the
Department replaced the reference to ``Section 1761.11(d)(2)'' with a
reference to ``Section 1761.11(a)(4)(B).''
We find that the revised regulation references at 62 IAC 1761.12(b)
and (c) are consistent with the counterpart Federal regulation
references at 30 CFR 761.12(b) and (d).
3. 62 IAC 1774.13, Permit Revisions. At subsection (b)(3),
references to ``62 Ill. Adm. Code 1773.13, 1773.19(b)(1) and (3) and
1778.21'' were replaced by references to ``62 Ill. Adm. Code 1773.13,
1773.19(a)(3)(A) and (C) and 1778.21.''
We find that the revised regulation references at 62 IAC
1774.13(b)(3) are consistent with the counterpart Federal regulation
references at 30 CFR 774.13(b)(2).
[[Page 6193]]
B. Revisions to Illinois' Regulations That Are Substantively Identical
to the Corresponding Provisions of the Federal Regulations
The State regulations listed in the table below contain language
that is the same as or similar to the corresponding sections of the
Federal regulations. Differences between the State regulations and the
Federal regulations are not substantive.
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State regulation 62 Federal counterpart
Topic IAC regulation--30 CFR
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Definition of Previously 1701.Appendix A..... 701.5
Mined Area.
Violation Information....... 1778.14(c).......... 778.14(c)
Prime Farmlands............. 1785.17(e)(5)....... 785.17(e)(5)
Definition of Other 1816.46(a)(3) and 701.5
Treatment Facilities. 1817.46(a)(3).
Prime Farmland: Scope....... 1823.1.............. 823.1
Prime Farmland: 1823.11............. 823.11
Applicability.
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Because the above revised regulations are identical in meaning to
the corresponding Federal regulations, we find that they are no less
effective than the Federal regulations.
C. Revisions to Illinois' Statutes and Regulations That Reflect
Organizational Changes
1. 225ILCS 720/1.03, Definitions; 225 ILCS 720/7.03, Procedure For
Designation; and 225 ILCS 720/7.04, Land Report. Illinois proposed
revisions to 225 ILCS 720/1.03, 7.03, and 7.04 of the Surface Coal
Mining Land Conservation and Reclamation Act to reflect the merging of
the Department of Energy and Natural Resources and the Department of
Mines and Minerals into the Department of Natural Resources. The
revisions include changes in the responsibility for preparing the Land
Report that is required when processing a petition to designate an area
as unsuitable for surface coal mining operations.
a. 225 ILCS 720/1.03, Definitions. At section 1.03(a)(4), Illinois
changed the definition for the term ``Department'' from the
``Department of Mines and Minerals'' to the ``Department of Natural
Resources.'' At section 1.03(a)(8), Illinois removed the definition of
the term ``Department of Energy.''
b. 225 ILCS 720/7.03, Procedure for designation. At section
7.03(b), the language ``refer it to the Department of Energy for
preparation of'' was replaced by the word ``prepare'' in the phrase
``the Department shall refer it to the Department of Energy for
preparation of a Land Report.'' At section 7.03(c), Illinois changed
the phrase ``Such a hearing shall be held not less than 30 days after
the Department of Energy files a Land Report with the Department'' to
the phrase ``Such a hearing shall be held not less than 30 days after
the Land Report has been prepared by the Department.''
c. 225 ILCS 720/7.04, Land Report. At section 7.04(a), Illinois
replaced the term ``Department of Energy'' with the term
``Department.'' The language ``and referred by the Department to the
Department of Energy for a Land Report'' was removed from the end of
the first sentence. Illinois revised the last sentence to read: ``Each
Land Report shall be completed not later than eight months after
receipt of the petition.'' Illinois removed section 7.04(c), which
required the Department of Mines and Minerals and the Department of
Energy to enter into contracts for all or part of the costs of
preparing land reports.
On July 11, 1995, we approved the merger of the Illinois Department
of Mines and Minerals into the Illinois Department of Natural Resources
(60 FR 35696). On March 1, 1995, the Governor of Illinois signed
Executive Order Number 2 (1995) that authorized this organizational
change. Part IV(F) of the Executive Order required the Department of
Natural Resources to adopt under the Illinois Administrative Procedures
Act those rules necessary to consolidate and clarify the rules that
will be administered by the merged departments. We find that the
revisions to the State Act are consistent with this requirement. We
also find that the revised requirements of 225 ILCS 720/7.03 and 7.04
are no less stringent than the requirements of section 522 of SMCRA for
designating areas as unsuitable for surface coal mining.
2. 62 IAC Part 1764, State Processes for Designating Areas
Unsuitable for Surface Coal Mining Operations. The Department proposed
revisions to its regulations at 62 IAC 1764.15 to reflect the merging
of the Department of Mines and Minerals and the Department of Energy
and Natural Resources into the Department of Natural Resources and to
implement the changes that were made to the State Act relating to the
responsibility for preparing the Land Report.
In section 1764.15(a), the Department added the heading
``Processing of Petitions''; and in section 1764.15(c), the Department
added the heading ``Land Report and Public Comment.'' The language in
the first sentence of section 1764.15(c)(1) was replaced by the
language ``After the petition is determined to be complete the
Department shall prepare a Land Report.''
The Department revised section 1764.15(c)(2) as follows:
The Land Report shall state objectively the information which
the Department has, but shall not contain a recommendation with
respect to whether the petition should be granted or denied. Each
Land Report shall be completed not later than eight months after the
petitioner has been notified the petition is complete under
subsection (a)(1).
At section 1764.15(c)(3), the term ``Department'' replaced the term
``Department of Energy and Natural Resources'' and the term ``Land
Reclamation Division'' replaced the term ``Department.''
We find that the types of revisions made to 62 IAC 1764.15 will not
make the requirements of the Illinois regulation less effective than
the requirements of the counterpart Federal regulation at 30 CFR
764.15, relating to state processes for designating areas as unsuitable
for surface coal mining operations.
D. 62 IAC Part 1773.15, Review of Permit Applications
The Department added the following provision for written findings
at 62 IAC 1773.15(c)(13):
(13) For a proposed remining operation where the applicant
intends to reclaim in accordance with the requirements of 62 Ill.
Adm. Code 1816.116(a)(2)(B) or 1817.116(a)(2)(B), the site of the
operation is land eligible for remining as defined in 62 Ill. Adm.
Code 1701. Appendix A.
In the November 27, 1995, Federal Register (60 FR 58489), we
stated that we interpret 30 CFR 816/817.116(c)(2)(ii) and (c)(3)(ii) as
requiring an existing permit to obtain a permit revision to qualify for
a reduced
[[Page 6194]]
revegetation responsibility period. This permit revision would require
a finding that the permit covers land eligible for remining. This
finding is in accordance with the State's counterpart to 30 CFR
773.15(c)(13)(i). States would also need to make this permit finding
for new permit applications that cover land eligible for remining.
Since the Department had added reduced revegetation responsibility
counterparts to its regulations at 62 IAC 1816.116(a)(2)(B) and
1817.116(a)(2)(B), this requirement would apply to the Illinois
program. In a letter dated October 30, 1997 (Administrative Record No.
IL-2002), we notified the Department that it needed to revise its
regulation at 62 IAC 1773.15(c) to add a counterpart to 30 CFR
773.15(c)(13)(i). We find that the new provision at 62 IAC
1773.15(c)(13) meets the Federal requirement discussed by us in the
November 27, 1995, Federal Register. Also, for the purpose specified,
it is no less effective than the Federal regulation at 30 CFR
773.15(c)(13)(i).
E. 62 IAC 1800.40, Requirement to Release Performance Bonds
At subsection (b)(2), the Department is requiring the permittee,
the municipality and county in which the surface coal mining operation
is located, the surety, or other persons with an interest in bond
collateral who have requested notification under section 1800.21(e),
and the persons who either filed objections in writing or objectors who
were a party to the hearing proceedings, if any, to be notified in
writing of its final administrative decision to release or not to
release all or part of the performance bond.
The counterpart Federal regulation at 30 CFR 800.40(b)(2) also
requires the same persons, with the exception of the municipality, to
be notified in writing. The Federal regulation at 30 CFR 800.40(e)
requires the municipality in which the surface coal mining operation is
located to be notified by certified mail. We notified the Department of
this requirement on December 9, 1998 (Administrative Record No. IL-
5032). By letter dated December 18, 1998, the Department stated that it
will send the municipality in which the surface coal mining operation
is located written notification by certified mail at least 30 days
before the release of all or a portion of the bond (Administrative
Record No. IL-5035).
Therefore, we find that the revised regulation, combined with the
Department's letter dated December 18, 1998, is no less effective than
the Federal regulations at 30 CFR 800.40(b)(2) and 800.40(e).
F. 62 IAC Parts 1816 and 1817, Permanent Program Performance Standards
for Surface and Underground Mining Activities
The Illinois permanent program regulations for surface mining
activities at 62 IAC Part 1816 and underground mining activities at 62
IAC Part 1817 are discussed below. Since most of the surface mining and
underground mining regulations are identical, we are combining the
revisions for discussion purposes, unless otherwise noted.
1. 62 IAC 1816.49 and 1817.49, Impoundments. At sections
1816.40(a)(3)(B) and 1817.49(a)(3)(B), the Department replaced the term
``U.S. Soil Conservation Service'' with the term ``U.S. Natural
Resources Conservation Service'' and changed the date of Practice
Standard IL 378, ``Ponds'' from April 1987 to June 1992.
The U.S. Soil Conservation Service changed its name to the U.S.
Natural Resources Conservation Service on November 9, 1994, and made
revisions to Practice Standard IL 378 in June 1992. Therefore, we find
that these revisions will not make the Illinois regulations less
effective than the Federal regulations at 30 CFR 816.49 and 817.49.
2. 62 IAC 1817.61, Use of Explosives: General Requirements. The
Department revised section 1817.61(a) by adding the language ``that are
within 50 vertical feet of the original ground surface'' to the end of
the existing provision to define the extent of the initial rounds of
slope and shaft development. The revised provision reads as follows:
Section 1817.61 through 1817.68 apply only to surface blasting
activities incident to underground mining, including, but not
limited to, initial rounds of slopes and shafts that are within 50
vertical feet of the original ground surface.
The counterpart Federal regulation at 30 CFR 817.61(a) does not
define the extent of ``initial rounds of slopes and shafts.'' We added
section 817.61 to our regulations to protect the lives and property of
the public, underground mines, and ground and surface waters outside of
the permit areas where surface blasting is required in the development
and support of underground mining operations (43 CFR 41780). We found
in a technical review of the revised Illinois regulation that 62 IAC
1817.61(a) is essentially the same as the Federal counterpart at 30 CFR
817.61(a) except that the State defines the extent of the initial
rounds of slope and shaft development as those ``that are within 50
vertical feet of the original ground surface.'' Neither the Federal
rule nor the associated preambles (43 FR 41780 and 44 FR 15269)
directly include or address the vertical extent of the initial blasting
rounds in slope and shaft development. We clearly intended that section
817.61 through 817.68 apply only to surface blasting activities
incident to underground mining, including construction of initial
rounds of slopes and shafts. It was our ``intent not to regulate
blasting performed underground, because this activity is adequately
controlled by MSHA'' (44 FR 15269). Considering this intent and the
generally small amount of blasting activities associated with slope and
shaft development, the 50-foot vertical extent proposed by the
Department is a reasonable interpretation of ``initial blasting rounds
of slope and shaft development'' and is adequate to protect the public
from the adverse effects of these blasts. Therefore, we find that the
revised Illinois regulation at 62 IAC 1817.61(a) is no less effective
than the Federal counterpart regulation at 30 CFR 817.61(a).
3. 62 IAC 1817.62, Use of Explosives: Pre-Blasting Survey. In the
first sentence of section 1817.62(d), the Department replaced the
language ``published scheduled beginning'' with the language ``planned
initiation.'' The revised sentence reads as follows:
Any surveys requested more than ten calendar days prior to the
planned initiation of blasting shall be completed by the operator
before the start of blasting.
The revised Illinois provision at 62 IAC 1817.62(d) is
substantively the same as the counterpart Federal regulation at 30 CFR
817.62(e). Therefore, we find that 62 IAC 1817.62(d) is no less
effective than the counterpart Federal regulation.
4. 62 IAC 1816.64, Use of Explosives: Public Notice of Blasting
Schedule. a. The Department added the following sentence to the end of
62 IAC 1816.64(b): ``Unscheduled blasting does not include nighttime
blasting, which is prohibited at all times.'' The Department proposed
this language to emphasize its restriction of nighttime blasting and to
clarify that blasting is not allowed after sunset.
The counterpart Federal regulation at 30 CFR 816.64(a)(3) does not
contain this clarification, but 30 CFR 816.64(a)(2) allows
discretionary authority to the regulatory authority relating to
nighttime blasting and time periods for blasting. Therefore, we find
that the revised Illinois regulation at 62 IAC 1816.64(b) is no less
effective than the counterpart Federal regulation.
b. At 62 IAC 1816.64(c)(1), the Department requires publication of
a blasting schedule at least ten days, but
[[Page 6195]]
not more than 30 days, before beginning a blasting program in which
blasts that use more than five pounds of explosive or blasting agent
are detonated. The currently approved language requires that operators
publish the blasting schedule at least 30 days but not more than 60
days before blasting starts.
We find that the revised regulation requirements at 62 IAC
1816.64(c)(1) are consistent with and no less effective than the 10-day
and 30-day requirements at 30 CFR 816.64(b)(1).
c. At 62 IAC 1816.64(c)(3), the Department requires operators to
revise and republish blasting schedules at least 10 days, but not more
than 30 days, before blasting in areas not covered in the current
schedule or if the actual blasting times differ from the time periods
listed in the current schedule for more than 20 percent of the blasts
fired. The currently approved language requires that operators
republish the blasting schedule at least 30 days but not more than 60
days before blasting in the specified areas.
We find that the revised regulation requirements at 62 IAC
1816.64(c)(3) are consistent with and no less effective than the 10-day
and 30-day requirements at 30 CFR 816.64(b)(3).
d. The Department revised 62 IAC 1816.64(d) by changing the
subsection introductory sentence to ``The blasting schedule shall
contain at a minimum''; removing existing paragraphs (1) and (2); and
redesignating paragraphs (2)(A) through (2)(E) as paragraphs (1)
through (5).
We find that the revised Illinois regulation at 62 IAC 1816.64(d)
is consistent with and no less effective than the counterpart Federal
regulation at 30 CFR 816.64(c).
5. 62 IAC 1816.66 and 1817.66, Use of Explosives: Blasting Signs,
Warnings, and Access Control. a. In the second sentence of 62 IAC
1817.66(b), the Department replaced the language ``blasting schedule''
with the language ``blasting notification required in Section
1817.64.'' The Department proposed this revision in order to ensure
consistent terminology and wording throughout its regulations.
We find that the revised regulation language at 62 IAC 1817.66(b)
is consistent with and no less effective than the counterpart Federal
language at 30 CFR 817.66(b).
b. At sections 1816.66(d)(2) and 1817.66(d)(2), concerning blasting
prohibitions, the Department added the language ``unless a waiver is
obtained from the owner of the facility and submitted to the Department
prior to blasting within 100 feet'' at the end of these provisions. The
revised provisions read as follows:
Blasting shall not be conducted within 100 feet of facilities
including, but not limited to, disposal wells, petroleum or gas
storage facilities, municipal water storage facilities, fluid-
transmission pipelines, or water and sewage lines unless a waiver is
obtained from the owner of the facility and submitted to the
Department prior to blasting within 100 feet.
The proposed revisions allow the owner of a utility to waive the
set-back distance of 100 feet. There are no Federal counterparts to the
previously approved blasting prohibitions at 62 IAC 1816.66(d)(2) and
1817.66(d)(2). However, the Federal regulations at 30 CFR 816.64(a) and
817.64(a) allow the regulatory authority to limit the area covered,
timing, and sequence of blasting as listed in the schedule, if such
limitations are necessary and reasonable in order to protect the public
health and safety or welfare. We find that the addition of a waiver
clause to the Illinois regulations at 62 IAC 1816.66(d)(2) and
1817.66(d)(2) will not make them less effective than the Federal
requirements for blasting.
6. 62 IAC 1816.67 and 1817.67, Use of Explosives: Control of
Adverse Effects. a. The Department restructured the provisions of 62
IAC 1816.67(c)(1) and 1817.67(c)(1), concerning air blast monitoring,
by moving the language of paragraphs (1)(A) and (1)(B) to paragraph
(1).
The revised provision at section 1816.67(c)(1) reads as follows:
When the cube root scaled distance, as defined in subsection
(c)(2), to the nearest dwelling, public building, school, church, or
commercial or institutional structure has a value less than 350 and
when the burden to hole depth ratio is greater than 1.0, or the top
stemming height is less than 70% of the burden dimension, the air
blast produced by that blast shall be measured, recorded, analyzed,
and reported pursuant to subsection (g) and section 1816.68(b). This
subsection shall not apply to horizontal blast holes drilled from
the floor of the pit.
The revised provision at section 1817.67(c)(1) reads as follows:
When the cube root scaled distance, as defined in subsection
(c)(2), to the nearest dwelling, public building, school, church, or
commercial or institutional structure has a value less than 350 and
when the burden to hole depth ratio is greater than 1.0, or the top
stemming height is less than 70% of the burden dimension, the air
blast produced by that blast shall be measured, recorded, analyzed,
and reported pursuant to subsection (g) and section 1817.68(b).
We find that the proposed revisions to 62 IAC 1816.67(c)(1) and
1817.67(c)(1) are editorial in nature and do not change the meaning of
the previously approved language.
b. At 62 IAC 1816.67(e) through (h) and 1817.67(e) through (h),
concerning ground vibrations, the Department numbered the existing
provision in subsection (e) as subsection (e)(1); redesignated
subsection (f) as subsection (e)(2); redesignated subsections (f)(1)
and (f)(2) as subsections (e)(2)(A) and (e)(2)(B); and redesignated
existing paragraphs (g) and (h) as paragraphs (f) and (g). Minor
wording changes were made to redesignated subsection (e)(2), and the
revised provision reads as follows:
Blasting shall be conducted to prevent adverse impacts on any
underground mine and changes in the course, channel, or availability
of ground or surface water outside the permit area. Ground vibration
limits, including the maximum peak particle velocity limitation of
subsection (e)(1), shall not apply at the following locations:
We find that the reformatting of 62 IAC 1816.67(e), (f), and (g)
and 1817.67(e), (f), and (g), is editorial in nature. The proposed
language changes to redesignated subsection (e)(2) clarify the intent
of this previously approved provision. Therefore, we find that the
revised provisions at 62 IAC 1816.67(e)(2) and 1817.67(e)(2) are no
less effective than the counterpart Federal provisions at 30 CFR
816.67(a) and (e) and 817.67(a) and (e).
7. 62 IAC 1816.83 and 1817.83, Coal Mine Waste: Refuse Piles. The
Department revised 62 IAC 1816.83(c)(4) and 1817.83(c)(4) by adding the
following new provision at the end of each:
The Department shall require the addition of neutralization
material to be added to the coal mine waste if, based on physical
and chemical analyses, this material is needed to prevent acid mine
drainage. This subsection is also applicable to the reclamation of
fine coal waste (slurry) not meeting the definition of refuse piles.
The new provision was added to clarify that the Department has the
authority to require acid neutralization before the waste is covered
with four feet of the best available material and that coal waste
deposited in slurry ponds is subject to treatment and/or coverage
requirements. The counterpart Federal regulations at 30 CFR
816.83(c)(4) and 817.83(c)(4) do not contain the proposed language.
However, we determined that the requirement to add neutralization
material for the prevention of acid mine drainage is consistent with
the Federal regulation requirements at 30 CFR 816.81(a)(1) and
817.81(a)(1) to minimize adverse effects of leachates on surface and
ground water quality. Therefore, we are approving the new
[[Page 6196]]
provision at 62 IAC 1816.83(c)(4) and 1817.83(c)(4).
8. 62 IAC 1816.116 and 1817.116, Revegetation: Standards for
Success.
a. 62 IAC 1816.116(a)(2)(F) and 1817.116(a)(2)(F), Success of
Revegetation: Augmentation.
In response to the required amendment at 30 CFR 913.16(w), the
Department deleted its provisions at 62 IAC 1816.116(a)(2)(F)(i) and
1817.116(a)(2)(F)(i) that allowed deep tillage without restarting the
five-year period of responsibility on pasture, hayland, and grazing
land areas where the operator had met the revegetation success
standards.
We disapproved these provisions and required the Department to
remove them from the Illinois regulations on May 29, 1996 (61 FR
26801). We find that the removal of these provisions is a satisfactory
response to the required amendment codified at 30 CFR 913.16(w), and we
are removing the required amendment from the Illinois program.
b. 62 IAC 1816.116(a)(2)(G) and 1817.116(a)(2)(G), Success of
Revegetation: Other Management Practices.
The Department added the following new revegetation provisions at
62 IAC 1816.116(a)(2)(G) and 1817.116(a)(2)(G):
(G) Other Management Practices
The Department shall approve the use of deep tillage for prime
farmland and high capability land as a beneficial practice that will
not restart the 5 year period of responsibility, if the following
conditions are met:
(i) The Permittee has submitted a request to use the practice
and has identified the field that will be deep tilled;
(ii) One or more hay crops, or other acceptable row crops, have
been grown or will be grown to dry out the subsoil prior to deep
tilling the field; and
(iii) The Department has determined that the use of deep tillage
will be beneficial to the soil structure and long term crop
production of the field and the benefits will continue well beyond
the responsibility period.
The Department shall notify the permittee in writing of its
decision. Such written notice shall be in the form of an inspection
report or other document issued by the Department.
By letter dated June 15, 1998 (Administrative Record No. IL-5024),
the Department submitted both legal rationale explaining why the
Department believes the amendment is approvable and technical
rationale, with supporting documentation, explaining why the amendment
would promote better reclamation by encouraging a beneficial practice
at optimum timing. The technical rationale will be discussed first.
The technical rationale addresses two aspects, the beneficial
nature of deep tillage with long lasting benefits and the timing of
deep tillage. The Department provided the following explanation of why
it believes that deep tillage is a beneficial practice with long
lasting results.
In Illinois, in areas of a cropland postmining land use, the
normal practice after topsoil replacement is to plant the land into
wheat then hay or directly into hay. This practice is the initial
planting of areas of long-term intensive agriculture which also
includes crop rotations with corn and soybeans, and historically has
been considered the beginning of the responsibility period.
The Department believes that the enclosed technical data
demonstrates that deep tillage is a beneficial practice, its
benefits are increased after one or more hay crops, and its benefits
are long lasting. Deep tillage is universally accepted within the
scientific and mining community as beneficial for soil structure.
Also, these benefits are long lasting beyond any responsibility
period. In the event that an operator has made successful yield(s)
prior to deep tillage, the operator and landowner should not be
penalized for going beyond the performance standards and improving
the soil within the responsibility period. The Department is
submitting a publication ``Deep Tillage Effects on Compacted
Surface-Mined Land,'' Soil Sci., Soc. Am. J. 59:192-199 (1995) and
supplemental information ``Long Term Effects of Deep Tillage''
(Second Annual Report, SIU, U of I Cooperative Reclamation Research
Station, March 1996, used with permission from the author). The data
reveals that the positive effects of deep tillage, reduced soil
strength and improved yields, have persisted up to eight years to
date. The data also revealed no disproportionate increase in yield
the first year after deep tillage compared to the following years. A
tour of the study area this year, indicates this trend will likely
continue. A second report ``Profile Modification of a Fragiudalf to
Increase Production'' Soil Sci. Soc. Am. J. Vol 41, 1997, pp 127-
131, concluded that even after 16 years there was no reformation of
the original soil density or soil strength problems which had been
removed by a form of deep tillage and mixing.
The technical documents that the Department submitted successfully
demonstrate that a one-time application of deep tillage is beneficial
to reconstructed mined soils by increasing water movement and aeration
and eliminating high soil strength, with a resulting increase in crop
yields. We agree with the Department's assessment that the publication
``Deep Tillage Effects on Compacted Surface-Mined Land,'' Soil Sci.,
Soc. Am. J. 59:192-199 (1995) and supplemental information ``Long Term
Effects of Deep Tillage'' (Second Annual Report, SIU, U of I
Cooperative Reclamation Research Station, March 1996) prove that the
positive effects of deep tillage, reduced soil strength and improved
yields, persisted through the first eight years of the study. We also
find that the data show no unusual increase in yield the first year
after deep tillage compared to the following years. This study showed
that deep tillage significantly affected crop yield, soil strength, and
net water extracted by growing crops. It showed that average soil
strength decreased with increasing tillage depth and that corn and
soybean yields increased with increasing tillage depth within and
across years. The 1995 publication documented that crop yields
comparable to the undisturbed site were achieved on the deepest tilled
sites in 5 out of 6 years for corn and 4 out of 4 years for soybeans
for the years 1988 through 1993.
The Department provided further explanation of why the benefits are
maximized if soils are deep tilled after one or more hay crops, or
other acceptable row crops, are grown.
The practice of hay cropping the cropland in advance of deep
tillage is a typical management practice on most mined ground. This
practice is promoted in ``Deep Tillage Effects on Mine Soils and Row
Crop Yields,'' Proc. 1987, Lexington, Dec. 7-11, 1987, p. 181. An
additional citation on this issue includes ``Compaction Related to
Prime Farmland Reclamation,'' AMC conference April 29-May 3, 1984,
by D.S. Ralston. The initial hay cropping helps to dry the subsoil
down in order to increase the effectiveness of the shattering effect
of the deep tillage. In addition, this concept was promoted at the
1998 Prime Farmland Interactive Forum, in Evansville, Indiana.
The referenced technical publications document that planting and
managing hay crops, or other acceptable row crops, after reclamation to
allow some initial settling and to obtain a drier subsoil should be
done before deep tilling the soils. One publication considered it
essential that the reclaimed soil be dry for good shattering action of
the rooting media. On the study areas referenced in the 1995
publication, alfalfa was seeded and managed during 1986 and 1987 before
tilling the various test plots in the late summer of 1987.
The Department provided the following legal rationale to support
its belief that the proposed provision is approvable under SMCRA:
Section 515(b)(20) outlines the initiation of the responsibility
period as ``after the last year of augmented seeding, fertilizing,
irrigation, or other work: Provided, that when the regulatory
authority approves a long-term intensive agricultural postmining
land use, the applicable five- or ten-year period of responsibility
for revegetation shall commence at the date of initial planting for
[[Page 6197]]
such long-term intensive agricultural postmining land use.''
A reading of the above wording leads us to conclude that under a
cropland postmining land use, the responsibility period starts at
the time of initial planting and is independent of any augmentative
seeding, irrigation, etc., use to facilitate the establishment of
the permanent vegetative cover required under section 515(b)(19).
This interpretation is further clarified by a reading of the
Illinois statute, Surface Coal Mining Land Conservation and
Reclamation Act, which was approved by the Secretary as no less
stringent than the Federal statute, SMCRA. In the Illinois statute,
Section 3.15(b) identifies the start of the responsibility period as
after the last year of augmented seeding, fertilizing, irrigation,
or other work. A separate Section 3.15(c) clarifies the
responsibility period for long-term intensive agricultural areas
starts at the date of initial planting for the agricultural use.
Historically, deep tillage has been considered an augmentative
practice. Under 30 CFR 816.116(c) and counterpart state regulations,
augmentative practices restart the liability period for cropland. With
the above explanation, the Department is taking the position that the
question of whether or not deep tillage is augmentative is irrelevant
because the limitation on augmentative practices in SMCRA and State law
does not apply to lands with a long-term intensive agricultural
postmining land use. In its letter, the Department did state that it
``will ensure that all other management, e.g., seeding, fertilizing,
etc., are at comparable levels as the surrounding agricultural lands.''
This statement is consistent with the Illinois regulations at 62 IAC
1823.15(b)(3), 62 IAC 1816.116(a)(3)(C), and 1817.116(a)(3)(C).
The criteria for judging proposed state regulations is that they be
no less effective than the Federal regulations and no less stringent
that SMCRA. Based on the Department's technical rationale discussed
above, we find that the proposed rule is no less effective than the
Federal regulations and no less stringent than SMCRA. The Department
has provided clear rationale for why deep tillage is a beneficial
practice and why it is best to delay deep tillage until after one or
more crops have been harvested. Therefore, we agree that the issue of
augmentation is not relevant to the deep tillage provision proposed in
this rulemaking. The Department has provided sufficient technical
documentation to support the practice of deep tillage when implemented
under the conditions imposed in the proposed regulations at 62 IAC
1816.116(a)(2)(G) and 1817.116(a)(2)(G).
The Department's expressed purpose for the proposed provision is
``the allowance for the use of productivity data which was obtained
prior to deep tillage on cropland.'' The Department explained why it
believes that operators should be allowed to use productivity data that
was obtained before deep tillage on cropland:
The existing concept of deep tillage restarting the
responsibility period is a significant deterrent to this universally
beneficial reclamation practice in that it discourages operators
from implementing it at the most efficient time, or from
implementing it at all, if they are successful in achieving
productivity on one or more crops and don't want to start over.
The Department believes the above proposal provides the maximum
benefit toward reclaiming the land as soon as practical, and is in
fact more effective than the Federal regulations and no less
stringent than the Federal statute because it will encourage rather
than impede a beneficial practice. The above also meets the intent
that long-term probability of productivity on cropland is being
achieved and that land is reclaimed as contemporaneously as
possible.
We have historically recognized that deep tillage alleviates
compaction (30 CFR 823.14(d); 48 FR 21452, 21457, May 12, 1983). The
Department has now demonstrated and we agree that deep tillage of the
reclaimed soils of Illinois, under the conditions discussed above, is a
beneficial practice that should not restart the responsibility period.
Because it will not restart the responsibility period, deep tillage
will not affect the collection of crop production data. Therefore,
successful yields of hay crops or other acceptable row crops that are
obtained during the responsibility period, even when they are obtained
before deep tillage, may be counted toward achieving productivity on
prime farmland and high capability land.
OSM has always maintained that the primary responsibility for
regulating surface coal mining and reclamation operations should rest
with the States. The Federal regulations for revegetation were
specifically written to allow States to account for regional diversity
in terrain, climate, soils, and other conditions where mining occurs.
Based on the above discussions, we find that the proposed
revegetation requirements at 62 IAC 1816.116(a)(3)(G) and
1817.116(a)(3)(G) will not make the Illinois regulations less stringent
than the requirements of section 515 of SMCRA or less effective than
the requirements of 30 CFR Parts 823, 816, and 817 of the Federal
regulations for revegetation of mined lands. Therefore, we are
approving the Department's proposed regulations.
c. 62 IAC 1817.116(a)(3)(E), Success of Revegetation: Pasture and/
or Hayland or Grazing Land.
At 62 IAC 1817.116(a)(3)(E), the Department removed the language
``Production for proof of productivity purposes shall also be
determined in accordance with Section 1817.117(a)(2).''
Section 1817.116(a)(3)(E) concerns standards for revegetation
success for areas designated as pasture and/or hayland or grazing land.
Section 1817.117(a)(2) concerns the use of trees and shrubs populations
in determining the success of revegetation for areas to be developed
for fish and wildlife habitat, recreation, or forest products land
uses. Therefore, we find that the removal of this reference to the
Department's tree and shrub vegetation standards for fish and wildlife
habit, recreation, or forest products land uses will not make the
Illinois regulation less effective than the counterpart Federal
regulation at 30 CFR 817.116(b)(1) concerning standards for
revegetation success for grazing land or pasture land.
d. 62 IAC 1816.116(a)(4)(ii), Success of Revegetation: Use of the
Agricultural Lands Productivity Formula.
In response to the required amendment at 30 CFR 913.16(y), the
Department deleted the following language from 62 IAC
1816.116(a)(4)(ii):
The Department may approve a field to represent non-contiguous
areas less than or equal to four acres of the same capability if it
determines that the field is representative of reclamation of such
areas. These areas shall be managed and vegetated in the same manner
as the representative field.
We disapproved this provision and required the Department to remove
it from the Illinois regulations on May 29, 1996 (61 FR 26801). We find
that the removal of this provision is a satisfactory response to the
required amendment codified at 30 CFR 913.16(y), and we are removing
the required amendment from the Illinois program.
G. 62 IAC 1823.12, Prime Farmland: Soil Removal
The Department added a new provision at 62 IAC 1823.12(c) that
allows the B and/or C horizons to be left in place for surface
disturbance areas if the Department determines the soil capability can
be retained.
By letter dated June 17, 1997 (Administrative Record No. IL-2000),
we notified the Department of changes made to the Federal regulation at
30 CFR 823.12(c)(2). The Federal regulation allows the regulatory
authority to approve exceptions from the requirement to remove B and C
soil
[[Page 6198]]
horizons where they would not otherwise be removed by mining activities
and where soil capabilities can be retained. We find that the proposed
Illinois regulation is no less effective than the counterpart Federal
regulation.
H. 62 IAC 1825.11, High Capability Lands: Special Requirements
The Department added the following requirement at section
1825.11(c): ``Measurement of success of revegetation shall be initiated
within ten (10) years after completion of backfilling and final grading
on high capability land.'' The Department proposed this revision to
require operators to initiate crop testing on high capability land
under the same time frame requirements as prime farmland because to
their similarities.
There are no direct Federal counterparts to the Illinois high
capability land provisions. However, we find that this proposal is not
inconsistent with the Federal requirements for revegetation and
restoration of soil productivity on prime farmland at 30 CFR
823.15(b)(1) or the Federal requirements for revegetation at 30 CFR
816.116 and 817.116.
I. 62 IAC 1840.11, Inspections by the Department
The Department clarified its inspection requirements by proposing
revisions to subsections (a) and (b). Subsection (a) was revised to
require the Department to conduct an average of a least one partial
inspection per month at each active surface coal mining and reclamation
operation. Subsection (b) was revised to require the Department to
conduct an average of at least one complete inspection per calendar
quarter at each active or inactive surface coal mining and reclamation
operation.
The counterpart Federal regulation at 30 CFR 840.11(a) requires the
State regulatory authority to conduct an average of a least one partial
inspection per month at each active surface coal mining and reclamation
operation under its jurisdiction. The counterpart Federal regulation at
30 CFR 840.11(b) requires the State regulatory authority to conduct an
average of at least one complete inspection per calendar quarter at
each active or inactive surface coal mining and reclamation operation
under its jurisdiction. Therefore, we find that the revised Illinois
requirements at 62 IAC 1840.11 (a) and (b) are consistent with the
Federal requirements for inspections by State regulatory authorities at
30 CFR 840.11 (a) and (b).
J. 62 IAC 1847, Administravie and Judicial Review
1. 62 IAC 1847.3, Hearings. Section 1847.3 provides procedures for
hearings on exploration applications, new permits, permit revisions,
permit renewals, permit rescissions or transfers, assignments, or sales
of permit rights. The procedures also apply to conflict of interest
hearings, valid existing right determinations, exemption
determinations, formal reviews of decisions not to inspect or enforce,
hearings for permits for special categories of mining, and challenges
of ownership or control links. At subsection (g), the Department
replaced its existing burden of proof provision with the following
provisions:
(1) In a proceeding to review a decision on an application for a
new permit:
(A) If the permit applicant is seeking review, the Department
shall have the burden of going forward to establish a prima facie
case as to the failure to comply with the applicable requirements of
the State Act or regulations or as to the appropriateness of the
permit terms and conditions, and the permit applicant shall have the
ultimate burden of persuasion as to entitlement to the permit or as
to the inappropriateness of the permit terms and conditions.
(B) If any other person is seeking review, that person shall
have the burden of going forward to establish a prima facie case and
the ultimate burden of persuasion by a preponderance of the evidence
that the permit application fails in some manner to comply with the
applicable requirements of the State Act or regualtions.
(2) In all other proceedings held under this Section, the party
seeking to reverse the Department's decision shall have the burden
of proving by a preponderance of evidence that the Department's
decision is in error.
The proposed Illinois provision at 62 IAC 1847.3(g)(1) is
consistent with and no less effective than the Federal burden of proof
provision for new permits at 43 CFR 4.1366(a). The proposed Illinois
provision at 63 IAC 1847.3(g)(2) for all otehr proceedings covered by
this section is consistent with the Federal burden of proof provisions
at 43 CFR 4.1366, 4.1374, 4.1384, and 4.1394 for permit actions,
ownership and control determiniations, and valid existing right
determinations. All of these expressly or in other language provide for
a preponderance of the evidence standard. Therefore, we are approving
62 IAC 1847.3(g).
2. 62 IAC 1847.9, Bond Release hearings: Burden of Proof. At
subsection (g), the Department revised its burden of proof provision by
requiring that ``the party seeking to reverse the Department's proposed
release of bond shall have the burden of providing by a preponderance
of evidence that the Department's decision is in error.''
The traditional Federal burden of proof for civil or administrative
proceedings is proof by a preponderance of the evidence. As discussed
in the above finding, administrative hearings under 43 CFR Part 4
expressly or in other language provide for a preponderance of the
evidence standard. Therefore, we are approving the revision to 62 IAC
1847.9(g).
3. 63 IAC 1847.9(j) and (k), Bond Release Hearings: Written
Exceptions. The Department revised 62 IAC 1847.9(j) and (k) to clarify
that the final decision of the Department in administrative review
hearings for bond release is made by the hearing officer and not the
Director of the Department of Natural Resources. The Department also
proposed to change the time limits for filing and responding to written
exceptions from 15 to 10 days and the time limits for issuance of a
final administrative decision by the hearing officer from 15 to 10 days
if no written exceptions are filed. Specifically, the Department
proposed the following changes:
At section 1847.9(j), the Department is allowing each party to the
hearing to file written exceptions with the hearing officer within ten
days after service of the hearing officer's proposed decision. All
parties shall then have ten days after service of written exceptions to
file a response with the hearing officer.
At section 1847.9(k), the Department revised the existing provision
to read as follows:
If no written exceptions are filed, the hearing officer's
proposed decision shall become final ten days after service of such
decision. If written exceptions are filed, the hearing officer shall
within 15 days following the time for filing a response thereto,
either issue his final administrative decision affirming or
modifying his proposed decision, or shall vacate the decision and
remand the proceeding for rehearing.
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, we find that the
designation of a hearing officer to make final administrative hearing
decisions does not make 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
[[Page 6199]]
decision, time limits for filing written exceptions and responses to
exceptions, and time limits for issuance of a final administrative
decision. However, we find that the proposed regulations at 62 IAC
1847.9(j) and (k) add clarity and specificity to the State program and
are not inconsistent with SMCRA or the Federal regulations.
K. 62 IAC Part 1850, Training, Examination and Certification of
Blasters
1. At section 1850.13(a), the Department may also provide the
necessary training required for blaster certification. This change
allows the Department or the operator or his representative to conduct
blasters training.
The counterpart Federal regulation at 30 CFR 850.13(a) requires the
regulatory authority to provide training for persons seeking to become
certified as blasters. The Federal regulation allows the regulatory
authority to establish the procedures to implement this requirement.
Therefore, we find that the revised Illinois regulation at 62 IAC
1850.13(a) is no less effective than the Federal regulation at 30 CFR
850.13(a).
2. At 62 IAC 1850.14(a) and (b), the Department is revising its
provisions for scheduling examinations and reexaminations for
certification. Specifically, sections 1850.14(a) and (b) were revised
to read as follows:
(a) Written examinations for blaster certification shall be
administered on dates, times, and at locations announced by the
Department via direct communication with operators and individuals
who request in writing to be so notified. All persons scheduled for
a regular examination session will be so notified at least one week
prior to the scheduled exam date.
(b) Reexaminations shall be scheduled, if needed, for those
persons who do not pass the regularly scheduled examination. The
Department shall also allow for examination at this time of those
persons who have newly applied for certification. All persons
scheduled for examination or reexamination during the reexamination
session will be so notified at least one week prior to the scheduled
reexamination session.
The Federal regulations at 30 CFR 850.14 require the regulatory
authority to ensure that candidates for blaster certification are
examined. The Federal regulations at 30 CFR 850.13 require the
regulatory authority to establish the procedures to implement this
requirement. We find that the Department's proposed procedures will
ensure candidates for blaster certification are examined as required by
the Federal regulations. Therefore, we are approving the revisions at
62 IAC 1850.14(a) and (b).
3. The Department revised section 1850.15(a), concerning
application and certification, to read as follows:
Each applicant shall submit a completed application for
certification on forms supplied by the Department. Any applicant
whose completed application has been received, reviewed and accepted
by the Department prior to a regularly scheduled examination session
shall be scheduled for that session. The following documents shall
be included with the completed application form:
The Federal regulations at 30 CFR 850.15 require the regulatory
authority to certify candidates for blaster certification. The Federal
regulations at 30 CFR 850.13 require the regulatory authority to
establish the procedures to implement this requirement. We find that
the Department's procedures at 30 CFR 850.15 will ensure candidates for
blaster certification are certified as required by the Federal
regulations. Therefore, we are approving the revisions to 62 IAC
1850.15(a).
IV. Summary and Disposition of Comments
Public Comments
In Federal Register notices dated April 6 and November 16, 1998, we
requested public comments on the proposed amendment and revisions to
the amendment (63 FR 16719 and 63 FR 63628, respectively).
By letter dated April 10, 1998, we received comments regarding the
Illinois regulation at 62 IAC 1778.14 (Administrative Record No. IL-
5013). Then, by letters dated April 30 and May 6, 1998, we received
comments concerning the Illinois regulations at 62 IAC Part 1847 for
administrative hearings (Administrative Record Nos. IL-5016 and IL-
5017, respectively).
The first commenter objected to the proposed revisions to 62 IAC
1778.14(c), concerning violation information, that were included in the
February 26, 1998, proposed amendment. The commenter objected because
the revised regulation did not limit the violation information
requirements to operations owned or controlled by the applicant. The
commenter stated that the language proposed is identical to the
language of the Federal rules struck down by the United States Court of
Appeals for the District of Columbia Circuit in National Mining
Association v. U.S. Dept. of Interior, 105 F 3d 691 (D.C. Cir. 1997).
The commenter also noted that the proposed language appeared to be
missing pertinent punctuation and language. In its November 5, 1998,
revised amendment, the Department changed its proposed regulation at 62
IAC 1778.14(c) to limit the violation information requirements to
operations owned or controlled by the applicant and added applicable
missing punctuation and language. As noted in finding III.B., the
revised Illinois regulation is substantively identical to the
counterpart Federal regulation at 30 CFR 778.14(c).
One commenter objected to the Department's proposed burden of proof
provision at 62 IAC 1847.3(g)(1) that provides different burdens for
the permit applicant and the non-permit applicant for administrative
review of new permits. As discussed in finding III.J.1., the proposed
provision is no less effective than the counterpart Federal regulation
provision at 43 CFR 4.1366(a), which also provides different burdens
for the permit applicant and the non-permit applicant for
administrative review of new permits.
Two commenters objected to the Department's burden of proof
provisions at 62 IAC 1847.3(g)(2) and 1847.9(g) that provided for a
``clearly erroneous'' standard for administrative review of a variety
of hearing actions and bond release actions, respectively. In its
November 5, 1998, revised amendment, the Department changed the burden
of proof to a ``preponderance of evidence'' standard in both of these
provisions (Administrative Record No. IL-5025). As discussed in
findings III.J. 1. and 2., both provisions are now consistent with the
Federal burden of proof standards at 43 CFR Part 4 for administrative
hearings.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendments from various Federal agencies with an actual or potential
interest in the Illinois program (Administrative Record Nos. IL-5010
and IL-5026).
On April 2, 1998, the U.S. Natural Resources Conservation Service
commented that the reference to the ``U.S. Natural Resources
Conservation Service Practice Standard 378, `Pond,' April 1987'' in 62
IAC 1816.49(a)(3)(B) and 1817.49(a)(3)(B) should be changed to
``Practice Standard IL 378 `Ponds,' June 1992'' (Administrative Record
No. IL-5011).
As discussed in finding III.F.1., the Department made this change
in its November 5, 1998, revised amendment.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), we are required to get the written
consent of the EPA for those provisions of the program amendment that
relate to air or water quality standards published under
[[Page 6200]]
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 the Department proposed to make in this
amendment pertain to air or water quality standards. Therefore, we did
not request the EPA's consent.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendments from the EPA (Administrative Record Nos. IL-5010 and IL-
5026). The EPA did not respond to either request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On March 27 and November 6, 1998, we requested comments
from the SHPO and ACHP on the Illinois amendments (Administrative
Records Nos. IL-5010 and IL-5026, respectively), but neither respondend
to our requests.
V. Director's Decision
Based on the above findings, we approve the amendments submitted by
the Department on March 28, 1996, and February 26, 1998, and as revised
on November 5, 1998.
We approve the regulations and statutes that the Department
proposed with the provision that they be placed in force in identical
form to the regulations and statutes submitted to and reviewed by OSM
and the public.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 913, which codify decisions concerning the Illinois
program. We are making this final rule effective immediately to
expedite the State program amendment process and to encourage Illinois
to bring its program into conformity with the Federal standards. SMCRA
requires consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12866
The Office of Management and Budget (OMB) exempts this rule from
review under Executive Order 12866 (Regulatory Planning and Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each program is
drafted and promulgated by a specific State, not by OSM. Under sections
503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on State regulatory programs and
program amendments submitted by the States must be based solely on a
determination of whether the submittal is consistent with SMCRA and its
implementing Federal regulations and whether the other requirements of
30 CFR Parts 730, 731, and 732 have been met.
National Environmental Policy Act
This rule does not require an environmental impact statement since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on State regulatory program provisions do not constitute
major Federal actions within the meaning of section 102(2)(C) of the
National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
Paperwork Reduction Act
This rules does not contain information collection requirements
that require approval by OMB under the Paperwork Reduction Act (44
U.S.C. 3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Therefore, this rule will ensure that existing requirements
previously published by OSM will be implemented by the State. In making
the determination as to whether this rule would have a significant
economic impact, the Department relied upon the data and assumptions
for the corresponding Federal regulations.
Unfunded Mandates
OSM has determined and certifies under the Unfunded Mandates Reform
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of
$100 million or more in any given year on local, state, or tribal
governments or private entities.
List of Subjects in 30 CFR Part 913
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 25, 1999.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 913 is amended
as set forth below:
PART 913--ILLINOIS
1. The authority citation for Part 913 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 913.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 913.15 Approval of Illinois regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Date of final
Original amendment submission date publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
March 28, 1996 and February 26, 1998. February 9, 1999....... 225 ILCS 720/1.03, 7.03, and 7.04; 62 IAC 1701.
Appendix A; 1761.12; 1764.13 and .15; 1773.11
and .15; 1774.11 and .13; 1778.14; 1785.17;
1800.40; 1816.46, .49, .64, .66, .67, .83,
.116, and .117; 1817.46, .49, .61, .62, .66,
.67, .83, .116, and .117; 1823.1, .11, .12, and
.14; 1825.11; 1840.1 and .11; 1847.3 and .9;
1850.13, .14, .15, and .16.
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[[Page 6201]]
Sec. 913.16 [Removed and reserved]
3. Section 913.16 is removed and reserved.
[FR Doc. 99-3129 Filed 2-8-99; 8:45 am]
BILLING CODE 4310-05-M
