[Federal Register Volume 59, Number 200 (Tuesday, October 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2569]
[[Page Unknown]]
[Federal Register: October 18, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 913
Illinois Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
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SUMMARY: OSM is announcing receipt of a proposed amendment to the
Illinois regulatory program (hereinafter the ``Illinois program'')
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
The proposed amendment consists of revisions to 23 parts of Title 62 of
the Illinois Administrative Code (IAC) pertaining to permit fees,
definitions, financial interests, coal exploration, permitting,
environmental resources, reclamation plans, special categories of
mining, small operator assistance, bonding, performance standards,
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
the recently revised Federal regulations, provide additional
safeguards, clarify ambiguities, and improve operational efficiency.
DATES: Written comment must be received by 4:00 p.m., [C.S.T.],
November 17, 1994. If requested, a public hearing on the proposed
amendment will be held on November 14, 1994. Requests to speak at the
hearing must be received by 4:00 p.m., [C.S.T.], on November 2, 1994.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Mr. James F. Fulton, Director,
Springfield Field Office, at the address listed below.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
Copies of the Illinois program, the proposed amendment, a listing
of any scheduled public hearings, and all written comments received in
response to this document will be available for public review at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. Each requester may receive one free copy of
the proposed amendment by contacting OSM's Springfield Field Office.
James F. Fulton, Director, Springfield Field Office, Office of
Surface Mining Reclamation and Enforcement, 511 West Capitol, Suite
202, Springfield, Illinois 62704, Telephone: (217) 492-4495.
Illinois Department of Mines and Minerals, 300 West Jefferson
Street, Suite 300, Springfield Illinois 62791, Telephone (217) 782-
4970.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Director, Springfield Field Office, Telephone: (217)
492-4495.
SUPPLEMENTARY INFORMATION:
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. Description of the Proposed Amendment
By letter dated September 23, 1994, (Administrative Record No. IL-
1600) 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), (u), and (v),
and at its own initiative. The provisions of the 23 parts of Title 62
of the Illinois Administrative Code (IAC) that Illinois proposes to
amend are discussed below.
A. 62 IAC 1700.16. Fees and Forfeitures
Illinois is amending subsection (a) by requiring that fees
collected under the provision of the State Act be deposited in the Coal
Mining Regulatory Fund, rather than the general revenue fund. This
proposed amendment reflects recent statutory changes to the Surface
Coal Mining Land Conservation and Reclamation Act (State Act) at 225
ILCS 720/9/07.
B. 62 IAC 1701. Appendix A Definitions
The definition of ``coal exploration'' is revised by adding the
following specific exclusions. Coal exploration does not include
scientific research which is not related to specific plans to locate
and/or describe coal deposits, or activities the Department determines
do not substantially disturb the land involved. Coal exploration also
does not include exploration for minerals other than coal.
The definition of ``historic lands'' is revised by adding a
reference to Illinois' regulations at 62 IAC 1762 and 1764.
The following new definition pertaining to remining is added.
``Land eligible for remining'' means those lands that would otherwise
be eligible for expenditures under Section 402(g)(4) or Section 404 of
the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.
1232(g)(4), 1234).
The definition of ``substantially disturb,'' for purposes of coal
exploration, is revised to exclude impact to air by blasting.
C. 62 IAC 1705. Restriction on Financial Interests of State Employees
Illinois is proposing to revise the following sections of part
1705.
1. Section 1705.2 Objectives
Illinois revised subsection (a) by updating the state statute
citation.
2. Section 1705.15 Where to File
Section 1705.15 is proposed to be amended by requiring employees to
file their financial interest statements with the Department's internal
auditor, instead of the legal counsel.
3. Section 1705.17 What to Report
Subsection (c)(3) is proposed to be amended by giving the
Department's internal auditor the responsibility of determining whether
a direct or indirect financial interest exists, rather than having the
legal counsel make this determination.
D. 62 IAC 1772. Requirements for Coal Exploration
Illinois is proposing to revise the following sections of part
1772.
1. Section 1772.11 Notice of Requirements for Exploration Removing 250
Tons of Coal or Less
Subsection (b)(5) is proposed to be amended in order to clarify
that the referenced forms are required to be submitted with a coal
exploration notice only if such forms are required by the Department's
Oil and Gas Division.
2. Section 1772.12 Permit Requirements for Exploration Removing More
than 250 Tons of Coal
Subsection (d)(2) is proposed to be amended by replacing the word
``operation'' with the word ``permit.''
At subsection (e)(2), the administrative and judicial review
regulation citation is updated.
E. 62 IAC 1773.15. Review of Permit Applications
Illinois revised subsection (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.
F. 62 IAC 1774.13. Permit Revisions
At subsection (b)(2)(E), a significant revision shall be required
for land use changes involving greater than 5% of the ``total permit
acreage'' instead of the ``original total permit acreage.''
Exceptions to the 5% cumulative total limit were added at new
subsections (b)(2)(E) (i) and (ii). The proposed addition of subsection
(b)(2)(E)(i) would allow the accumulation of the 5% 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 (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% limit if the acreage has been
addressed previously in a significant revision.
New subsection (d)(6) provides for public notice of 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.
G. 62 IAC 1778.15. Right of Entry Information
At subsection (a), Illinois is proposing to eliminate the
requirement for underground coal mine operators to document their legal
right to enter and mine in the shadow area, including the right to
subside within the shadow area.
At subsection (e), Illinois is adding the phrase ``including
planned subsidence operations.
Illinois added new subsection (f) to require applications for
additions to the shadow area to contain a notarized statement by a
responsible office of the applicant attesting that all necessary mining
rights, including the right to subside, will be obtained prior to
mining.
H. 62 IAC 1779. Surface Mining Permit Applications--Minimum
Requirements for Information on Environmental Resources
Illinois is proposing to revise the following sections of part
1779.
1. Section 1779.22 Land Use Information
Section 1779.22 pertains to surface mining permit application
requirements for pre-mining land use information. Illinois is proposing
to delete section 1779.22 and to reorganize and repealed provisions at
subsection (a) into 62 IAC 1780.23(a).
2. Section 1779.25 Cross Sections, Maps and Plans
Subsections (a)(11) (A), (B) and (C) are proposed to be deleted.
Subsection (a)(11)(D) is proposed to be deleted from this section and
relocated to 62 IAC 1780.23(a)(3).
Statutory citations in subsections (b) are updated.
I. 62 IAC 1780.23. Reclamation Plan: Pre-Mining and Post-Mining
Information
The section title is changed from ``Reclamation Plan: Post-mining
Land Uses'' to ``Reclamation Plan: Pre-Mining and Post-Mining
Information.'' New subsections (a), (a)(1), and (a)(2) contain the pre-
mining land use information provisions of existing 62 IAC 1779.22(a)
with one addition. At new subsection (a)(1), one new provisions was
added which requires that in the case of previously mined land, the use
of the land prior to any mining shall also be described to the extent
such information is available. New subsection (a)(3) contains the soil
map provision of existing 62 IAC 1779.25(a)(11)(D). The substantive
provisions of existing subsections (a), (a)(1), (a)(3), and (a)(4) are
redesignated new subsections (b), (b)(1), (b)(2) and (b)(3). Existing
subsection (a)(2) pertaining to detailed management plans for a post-
mining use of grazing is deleted.
Existing subsection (b) is redesignated new subsection (c).
J. 62 IAC 1783. Underground Mining Permit Applications--Minimum
Requirements for Information on Environmental Resources
Illinois is proposing to revise the following sections of part
1783.
1. Section 1783.22 Land Use Information.
Section 1783.22 pertains to underground mining permit application
requirements for pre-mining land use information. Illinois is proposing
to delete Section 1783.22 and to reorganize the repealed provisions at
subsection (a) into 62 IAC 1784.15(a).
2. Section 1783.25 Cross Sections, Maps and Plans
Subsections (a)(11)(A), (B), and (C) are proposed to be deleted.
Subsection (a)(11)(D) is proposed to be deleted from this section and
relocated to 62 IAC 1784.15(a)(3).
Statutory citations in subsection (b) are updated.
K. 62 IAC 1784.15. Reclamation Plan: Pre-Mining and Post-Mining
Information
The section title is changed from ``Reclamation Plan: Post-mining
Land Uses'' to ``Reclamation Plan: Pre-Mining and Post Mining
Information.'' New subsections (a), (a)(1), and (a)(2) contain the
substantive pre-mining land use information provisions of existing 62
IAC 1783.22(a) with one addition. At new subsection (a)(1), one new
provision was added which requires that in the case of previously mined
land, the use of the land prior to any mining shall also be described
to the extent such information is available. New subsection (a)(3)
contains the soil map provisions of existing 62 IAC 1783.25(a)(11)(D).
The substantive provisions of existing subsections (a), (a)(1), (a)(2),
and (a)(3) are redesignated new subsections (b), (b)(1), (b)(2), and
(b)(3).
Existing subsection (b) is redesignated new subsection (c).
L. 62 IAC 1785. Requirements for Permits for Special Categories of
Mining
Illinois is proposing to revise the following sections of part
1785.
1. Section 1785.17 Prime Farmlands
At subsection (a), Illinois is proposing to delete the following
language: Nothing in this Section shall apply to any permit issued
prior 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.
Existing subsections (a)(5) and (6) pertaining to an acreage
limitation on the amount of exempted prime farmland are deleted.
Existing subsection (a)(7)(A) was redesignated subsection (a)(5).
Existing subsection (a)(7)(B) pertaining to a preliminary exemption
review is deleted.
At subsection (d)(1), the sentence ``The State recognizes that the
permit cannot be issued without the required consultation with USDA''
is deleted.
2. Section 1785.23 Minor Underground Mine Facilities Not at or
Adjacent to the Processing or Preparation Facility or Area
Illinois proposes to revise subsection (d)(3) by requiring written
comments be filed within the public comment period.
The 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 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
regulations dealing with approval and denial of application, and to
delete the requirement that it publish a public notice of its final
action. The regulatory citation in subsection (g)(2) is corrected.
M. 62 IAC 1795. Small Operator Assistance
Illinois is proposing to revise the following sections of part
1795.
1. Section 1795.1 Scope and Purpose
Illinois proposes to amend the purpose statement at subsection (b)
to read as follows. The purpose of the program is to provide for
eligible operators a determination of probable hydrologic consequences
including the engineering analysis and designs necessary for the
determination; cross-sections, maps and plans; geologic drilling and
statement of results of test borings and samplings; archaeological and
historical information collection and relevant plan preparation; pre-
blast surveys and pre-blast survey reports; and site specific resource
information collection and relevant plan preparation which are required
components of the permit application under 62 Ill. Adm. Code 1772
through 1785.
2. Section 1795.4 Definitions
At subsection (b) the definition of qualified laboratory is revised
by deleting the language ``statement of results of test borings or core
samples'' and adding the language ``or other studies and/or reports or
plans.'' The regulatory section citation was corrected to 1795.1.
3. Section 1779.6 Eligibility for Assistance
At subsection (a), the statute citation is updated.
At subsection (b), the criteria for eligibility for assistance is
revised to read as follows. Establishes that his or her probable total
actual and attributed production from all locations during the twelve
(12) months immediately following the date on which the operator is
issued the surface coal mining and reclamation permit will not exceed
300,000 tons.
At subsection (b)(1) and (b)(2), Illinois proposes changing the
percentage of ownership of applicant from five percent to ten percent
with respect to the baseline above which ownership will play a role in
determining attributed coal production.
4. Section 1795.7 Filing for Assistance
Illinois proposes to amend subsection (c)(4) by requiring that an
application for assistance contain a schedule of estimated coal
production and attributed production during the 12 months immediately
following the date of permit issuance.
5. Section 1795.9 Program Services and Data Requirements
Illinois proposes to revise subsection (a) by adding ``studies,
reports, and plans'' to the types of services referenced in subsection
(b) that are available to eligible operators.
Subsection (b) lists the specific technical services authorized for
the SOAP. At subsection (b)(2), Illinois proposes to add drilling as an
authorized SOAP service. Illinois proposes to add new subsection (b)(3)
which provides for cross-sections, maps and plans required by 62 IAC
1779.25 and 1783.25. New subsection (b)(4) provides for collection of
archaeological and historical information and related plans required by
62 IAC 1779.12(b), 1780.31, 1783.12(b) and 1784.17, and any other
archaeological and historical information required by the Department.
New subsection (b)(5) provides for pre-blast survey and reports
pursuant to the provisions of 62 IAC 1816.62. New subsection (b)(6)
provides for site specific resource information and protection and
enhancement plans for fish and wildlife habitats and other
environmental values required by the Department under 62 IAC 1779.19,
1780.16, 1783.19, and 1784.21, and information and plans for any other
environmental values required by the Department under the State Act.
6. Section 1795.12 Applicant Liability
At subsection (a)(1), the word ``report'' is replaced by the word
``reports.'' At subsection (a)(2), the applicant shall reimburse the
Department if the program administrator finds that the applicant's
actual and attributed production of coal for all locations exceeds
300,000 tons during the 12 months immediately following the date on
which the operator is issued the surface coal mining and reclamation
permit. At subsection (a)(3), the applicant and its successor shall
reimburse the Department if the permit is sold, transferred, or
assigned to another person and the transferee's total actual and
attributed production exceeds 300,000 tons during the twelve (12)
months immediately following the date on which the permit was issued.
If the permit is transferred during the 12 months period immediately
following the permit issuance date, the determination of adherence to
the 12 month-300,000 tons limit shall be performed by combining the
actual and attributed production of both parties for the 12 month
period.
N. 62 IAC 1800. Bonding and Insurance Requirements for Surface Coal
Mining and Reclamation Operations
The State Act at 225 ILCS 720/6.01 was amended to allow Illinois to
accept an applicant's bond, without separate surety, when the applicant
has a history of solvency and designates a suitable agent for service
of process. The proposed amendments to Secs. 1800.4, 1800.5, 1800.11,
1800.12, and proposed new Secs. 1800.23 implement the statutory self-
bonding provision.
1. Section 1800.4 Department Responsibilities
New subsection (c) allows the Department to accept a self-bond if
the permittee meets the requirements of Sec. 1800.23. Existing
subsections (c), (d), and (e) are redesignated as subsections (d), (e),
and (f), respectively.
2. Section 1800.5 Definitions
Subsection (b)(1) is revised to allow Illinois to accept letters of
credit from banks organized or authorized in other states that are not
authorized to operate in Illinois and from banks organized or
authorized in the United States by national charter provided that if
the bank does not have an office for collection in Illinois, there
shall be a confirming bank designated with an office in Illinois that
is authorized to accept, negotiate, and pay the letter upon presentment
in Illinois.
Ne subsection (c) defines ``self-bonding'' as an indemnity
agreement in a sum certain executed by the applicant or by the
applicant and any corporate guarantor and made payable to the
Department with or without separate surety.
3. Section 1800.11 Requirement to File a Bond
New subsection (e) requires the Department to administer self-
bonding for eligible permittees consistent with all applicable
provisions of Secs. 1800.1 through 1800.50.
4. Section 1800.12 Form of the Performance Bond
New subsection (c) allows for a self-bond. Existing subsection (c)
is redesignated as subsection (d)
5. Section 1800.20 Surety Bonds
Subsections (b)(2) through (b)(5), which contained surety bond
conditions, are deleted.
6. Section 1800.21 Collateral Bonds
Subsection (b)(1) is revised to allow Illinois to accept letters of
credit from banks organized or authorized in other states that are not
authorized to operate in Illinois and from banks organized or
authorized in the United States by national charter provided that if
the bank does not have an office for collection in Illinois, there
shall be a confirming bank designated with an office in Illinois.
7. Section 1800.23 Self-Bonding
Subsection (a) contains the following definitions. ``Current
assets'' means cash or other assets or resources which are reasonably
expected to be converted to cash or sold or consumed within one (1)
year or within the normal operating cycle of the business. ``Current
liabilities'' means obligations which are reasonably expected to be
paid or liquidated within one (1) year or within the normal operating
cycle of the business. ``Existing self-bonding liabilities'' means the
cumulative total dollar amount of self-bonding for which the applicant
or parent corporation guarantor is already liable in connection with
coal mining regulatory program permits in the United States, as of the
date of relevant financial statement. ``Fixed assets'' means plants and
equipment, but does not include land or coal in place. ``Liabilities''
means obligations to transfer assets or provide services to other
entities in the future as a result of past transactions. ``Net worth''
means total assets minus total liabilities and is equivalent to owners'
equity. Parent corporation means a corporation which owns or controls
the applicant. ``Tangible net worth'' means net worth minus intangible
such as goodwill and rights to patents or royalties.
Subsection (b) specifies that the Department may accept a self-bond
from an applicant for a permit if all of the conditions at subsections
(b)(1) through (b)(4) are met by the applicant or its parent
corporation guarantor.
At subsection (b)(1), if the applicant designates a suitable agent
to receive service of process in the State of Illinois.
At subsection (b)(2), if the applicant has been in continuous
operation as a business entity for a period of not less than five (5)
years. Continuous operation shall mean that business was conducted over
a period of five (5) years immediately preceding the time of
application. At paragraph (A), the Department may allow a joint venture
or syndicate with less than five (5) years of continuous operation to
qualify under subsection (2) above, if each member of the joint venture
or syndicate has been in continuous operation for at least five (5)
years immediately preceding the time of application. At paragraph (B),
when calculating the period of continuous operation, the Department may
exclude past periods of interruption to the operation of the business
entity that were beyond the applicant's control and that do not affect
the applicant's likelihood of remaining in business during the proposed
surface coal mining and reclamation operations.
At subsection (b)(3), if the applicant submits financial
information in sufficient detail to show that the applicant meets one
of the criteria in paragraphs (A) through (C). At paragraph (A), if the
applicant has a current rating for its most recent bond issuance of
``A'' or higher as issued by either Moody's Investor Service or
Standard and Poor's Corporation. At paragraph (B), if the applicant has
a tangible net worth of at least $10 million, a ratio of total
liabilities to net worth of 2.5 times or less, and a ration of current
assets to current liabilities of 1.2 times or greater. At paragraph
(C), if the applicant's fixed assets in the United States total at
least $20 million, and the applicant has a ratio of total liabilities
to net worth of 2.5 times or less, and ratio of current assets to
current liabilities of 1.2 times or greater.
At subsection (b)(4) if the applicant submits the information
required by paragraphs (A) through (C). Paragraph (A) requires
financial statements for the most recently completed fiscal year
accompanied by a report prepared by an independent certified public
account in conformity with generally accepted accounting principles and
containing the accountant's audit opinion or review opinion of the
financial statements with no adverse opinion. Paragraph (B) requires
unaudited financial statements for completed quarters in the current
fiscal year. Paragraph (C) requires additional unaudited information as
requested by the Department.
At subsection (c) a written guarantee is required. At subsection
(c)(1), the Department may accept a written guarantee for an
applicant's self-bond from a parent corporation guarantor, if the
guarantor meets the conditions of subsections (b) (1) through (4),
above, as if it were the applicant. Such a written guarantee shall be
referred to as a ``corporate guarantee.'' The terms of the corporate
guarantee shall provide for the criteria in paragraphs (A) through (C).
At paragraph (A), if the applicant fails to complete the reclamation
plan, the guarantor shall do so or the guarantor shall be liable under
the indemnity agreement to provide funds to the Department sufficient
to complete the reclamation plan, but not to exceed the bond amount. At
paragraph (B), the corporate guarantee shall remain in force unless the
guarantor sends notice of cancellation by certified mail to the
applicant and to the Department at least 90 days in advance of the
cancellation date, and the Department accepts the cancellation. At
paragraph (C), the cancellation may be accepted by the Department if
the applicant obtains suitable replacement bond before the cancellation
date or if the lands for which the self-bond, or portion thereof, was
accepted have not been disturbed.
At subsection (c)(2), the Department may accept a written guarantee
for an applicant's self-bond from any corporate guarantor, whenever the
applicant meets the conditions of subsection (b) (1), (2) and (4)
above, and the guarantor meets the conditions of subsections (b) (1)
through (4) above. Such a written guarantee shall be referred to as a
``non-parent corporate guarantee.'' The terms of this guarantee shall
provide for compliance with the conditions of subsections (c)(1) (A)
through (C) above. The Department may require the applicant to submit
any information specified in paragraph (b)(3) above in order to
determine the financial capabilities of the applicant.
Subsection (d) specifies that in order for the Department to accept
an applicant's self-bond, the total amount of the outstanding and
proposed self-bonds of the applicant for surface coal mining and
reclamation operations shall not exceed 25 percent of the applicant's
tangible net worth in the United States. In order for the Department to
accept a corporate guarantee, the total amount of the parent
corporation guarantor's present and proposed self-bonds and guaranteed
self-bonds for surface coal mining and reclamation operations shall not
exceed 25 percent of the guarantor's tangible net worth in the United
States. In order for the Department to accept a non-parent corporate
guarantee, the total amount of the non-parent corporate guarantor's
present and proposed self-bonds and guaranteed self-bonds shall not
exceed 25 percent of the guarantor's tangible net worth in the United
States.
Subsection (e) specifies that if the Department accepts an
applicant's self-bond, an indemnity agreement shall be submitted
subject to the requirements in subsections (e)(1) through (e)(4).
Subsection (e)(1) requires that the indemnity agreement shall be
executed by all persons and parties who are to be bound by it,
including the parent corporation guarantor, and shall bind each jointly
and severally. Subsection (e)(2) requires that corporations applying
for a self-bond, and parent and non-parent corporations guaranteeing an
applicant's self-bond shall submit an indemnity agreement signed by two
corporate officers who are authorized to bind their corporations. A
copy of such authorization shall be provided to the Department along
with an affidavit certifying that such an agreement is valid under all
applicable federal and state laws. In addition, the guarantor shall
provide a copy of the corporate authorization demonstrating that the
corporation may guarantee the self-bond and execute the indemnity
agreement. Subsection (e)(3) requires that if the applicant is a
partnership, joint venture or syndicate, the agreement shall bind each
partner or party who has a beneficial interest, directly or indirectly,
in the applicant. Subsection (e)(4) requires that pursuant to
Sec. 1800.50, the applicant, parent or non-parent corporate guarantor
shall be required to complete the approved reclamation plan for the
lands in default or to pay to the Department an amount necessary to
complete the approved reclamation plan, not to exceed the bond amount.
Under Illinois law, the indemnity agreement when under forfeiture shall
operate as a judgment against those parties liable under the indemnity
agreement.
At subsection (f), the Department shall require self-bonded
applicants and parent and non-parent corporate guarantors to submit an
update of the information required under subsections (b) (3) and (4)
above within 90 days after the close of fiscal year following the
issuance of the self-bond or corporate guarantee.
At subsection (g), if at any time during the period when a self-
bond is posted, the financial conditions of the applicant, parent or
non-parent corporate guarantor change so that the criteria of
subsections (b)(3) and (d) above are not satisfied, the permittee shall
notify the Department immediately and shall within 90 days post an
alternate form of bond in the same amount as the self-bond. Should the
pemittee fail to post an adequate substitute bond, the provisions of
Sec. 1800.16(e)(2) shall apply.
O. 62 IAC 1816. Permanent Program Performance Standards--Surface Mining
Activities
Proposed revisions to the performance standards which 62 IAC 1816
and 1817 have in common are discussed in ``Q.''
Proposed revisions of the surface mining performance standards
unique to the following sections of part 1816 are discussed below.
1. Section 1816.79 Protection of Underground Mining
Section 1816.79 is reorganized. The word ``coal'' is proposed to be
removed from existing subsection (a), and the subsection reference is
removed. Existing subsection (a)(1) is redesignated subsection (b), and
existing subsection (a)(2) is redesignated subsection (a).
2. Section 1816.116 Revegetation: Standards for Success
Subsection (a)(4)(A)(ii) is proposed to be amended to allow the
Department to approve a field to represent small isolated areas of the
same capability if it determines that the field is representative of
reclamation of such areas. The small isolated areas shall maintain a
successful ground cover as determined by subsection (a)(3)(E).
Productivity results on the field shall be applicable to the small
isolated areas.
3. Section 1816 Appendix A--Agricultural Lands Productivity Formula
(ALPF)
Illinois proposed several changes for the ``Permit Specifics Yield
Standard'' section. The two existing paragraphs are amended and
reorganized into subsections (a) and (b), respectively, and new
provisions were added at subsections (c) through (f).
Language is added at subsection (a) to clarify that ALPF target
calculation procedures are applicable to limited capability lands and
that targets are to be based on the soils which are disturbed within
the permit area.
The existing provisions in subsection (b) are now subject to the
provisions of subsection (c) through (f). New subsection (c) specifies
that the Department shall provide for establishment of specific yield
standards for the individual capability groups to be weighted for an
individual pit, (geographically distinct mining area), if multiple
permits are adjacent and confined to a single continuous pit; or
multiple pits are not adjacent but are within an individual permit.
New subsection (d) specifies that if an individual mining pit is
present in more than one county, annual target yield adjustments shall
be based on the county with the greater permit acreage.
New subsection (e) specifies that after mining operations have
ceased and at the request of the permittee, the Department shall
recalculate the yield standards for the permit (pit) based solely on
the soils which were disturbed. Recalculated targets shall be
applicable to all areas tested for productivity, including past results
on areas under bond at the time of the request. Approved significant
revisions which alter the soils to be disturbed shall cause the targets
to be recalculated.
New subsection (f) specifies that at the request of the permittee,
the Department shall consolidate prime farmland and high capability
targets, provided the Department determines that the soil
reconstruction of the high capability land is equal to or better than
the prime farmland.
P. 62 IAC 1817. Permanent Program Performance Standards--Underground
Mining Activities
Proposed revisions to the performance standards which 62 IAC 1816
and 1817 have in common are discussed in ``Q.''
Proposed revisions to the underground mining performance standards
unique to the following sections of part 1817 are discussed below.
1. Section 1817.101 Backfilling and Grading: General Requirements
Illinois is proposing to amend subsection (a) by removing the
existing provision and adding the requirement that all surface areas
disturbed incident to underground mining activities shall be
backfilled, graded and revegetated, in accordance with the approved
reclamation plan, not later than 36 calendar months after cessation of
active use, as determined by the Department.
2. Section 1817.121 Subsidence Control
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.
3. Section 1817.131 Cessation of Operations: Temporary
At subsection (b), two typographical errors were corrected by
adding the words ``affected'' and ``area'' and deleting the word
``are.''
4. Section 1817.182 Minor Underground Mine Facilities Not at or
Adjacent to the Processing or Preparation Facility or Area
At subsection (a), Illinois corrected a typographical error by
replacing the work ``is'' with the word ``if.''
At subsection (d)(4), Illinois corrected a typographical error by
replacing the word ``existing'' with the word ``restore.''
At subsection (l), Illinois corrected the regulatory citation by
replacing ``1817.103'' with ``1817.102.''
Q. 62 IAC 1816. Permanent Program Performance Standards--
Surface Mining Activities and 62 IAC 1817 Permanent Program Performance
Standards--Underground Mining Activities
Proposed revisions to the performance standards which 62 IAC 1816
and 1817 have in common are discussed below.
1. Sections 1816.22/1817.22 Topsoil and Subsoil
Illinois proposes to add the phrase ``except on prime farmland'' to
existing subsection (b)(1). Illinois is also proposing to delete
subsection (b)(2) in order to eliminate the acreage restriction on
topsoil substitutes. Therefore, existing subsection (b)(1) is
redesignated subsection (b).
2. Sections 1816.41/1817.41 Hydrologic Balance Protection
Illinois proposes to revise subsection (c)(2) by specifying that
ground water monitoring reports shall be submitted by the first day of
the second month following the reporting period, unless the Department
specifies an alternative reporting schedule.
Illinois proposes to revise subsection (e)(2) by removing the
requirement to send NPDES reports to the Department concurrently with
those sent into 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.
3. Sections 1816.46/1817.46 Hydrologic Balance: Siltation Structures
At subsection (a)(1), the definition for siltation structure is
proposed to be amended by adding a reference to sediment control
measures as described at Sec. 1816.45.
New subsection (e) is proposed to provide an alternative to
sedimentation ponds. Subsection (e)(1) specifies that sediment control
measures as described in section 1816.45(b) may be used in lieu of
sedimentation ponds if the disturbed drainage area within the total
disturbed area is ten (10) acres or less. Subsection (e)(2) requires
the permittee to demonstrate that a sedimentation pond is not necessary
for drainage from the disturbed area to meet the effluent limitations
and water quality standards for the receiving waters set forth in
Sec. 1816.42.
Existing subsection (e) was redesignated (f). The reference to
alternative sediment control measures is proposed to be deleted from
redesignated subsection (f)(2).
4. Sections 1816.97/1817.97 Protection of Fish, Wildlife, and Related
Environmental Values
Illinois is proposing to delete the reference to the Illinois
Endangered Species Protection Act at subsection (b).
5. Sections 1816.116/1817.116 Revegetation: Standards for Success
The State Act was amended at 225 ILCS 720/3.15 to change the
responsibility period from five years to two years for areas eligible
for remining. Subsection (a)(2)(B) is proposed to be amended to
implement this statute by adding the phrase ``except that on lands
eligible for remining, the period of responsibility (until September
30, 2004) shall be two (2) full years.''
Existing subsection (a)(2)(F), concerning augmentation requirements
for high capability cropland areas, is proposed to be deleted and
replaced with new provisions pertaining to wetlands augmentation. New
subsection (a)(2)(F) specifies that wetlands shall be considered
augmented when significant alterations are made to the size or
character of the watershed, pumping is used to maintain water levels,
or neutralizing agents, chemical treatments or fertilizers are applied
to the wetland area. Water level management using permanent water
control structures is considered a normal husbandry practice.
Subsection (a)(3)(E) is proposed to be amended to clarify that
pasture and/or hayland or grazing land on non-previously 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 one year attempt limit for substituting corn
productivity for one year of hay productivity is proposed to be removed
from subsection (a)(3)(E). Subsection (a)(3)(E) is also being revised
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.
New subsection (a)(3)(F) specifies that small isolated areas which
were disturbed from activities such as, but not limited to, signs,
boreholes and power poles, shall be considered successfully revegetated
if the operator can demonstrate that the soil disturbance was minor,
the soil has been returned to its original capability and the area is
supporting its approved post-mining land use at the end of the
responsibility period.
New subsection (a)(5)(A) specifies that wetland revegetation
criteria shall be deemed successful when the wetland vegetation
criteria in the Corps of Engineers Wetlands Delineation Manual have
been achieved following sampling procedures specified in that manual.
New subsection (a)(5)(B) further specifies that areas designated to
support vegetation in the approved plan shall have a minimum aerial
coverage of 30 percent. The testing procedure in Sec. 1816.117(d)(1)
through (3) shall be used to evaluate the extent of cover. Aerial cover
shall be determined to be present if any approved wetland species is
measured at the increment. The percentage of aerial cover shall be
established for the area tested by taking the total number of
measurements where aerial cover was determined to be present.
New subsection (c) is proposed to be added to provide for the use
of reference areas to establish target yields in lieu of the ALPF.
Other requirements and procedures of 62 IAC 1816.116(a)(4) shall be
applicable. Reference areas used to establish success standards must
meet the requirements in paragraphs (1) through (8). Paragraph (1)
requires that if the fields to be represented contain in total 800
acres or more, the reference area shall contain at least 40 acres. If
the field(s) to be represented is smaller than 800 acres, the reference
area shall be the greater of five percent of the field(s) to be
represented or one acre. Paragraph (2) requires that each reference
area be representative of the soils of the field(s) to be represented.
The permittee shall provide adequate documentation of the soils and
soil quality present in the reference area. Paragraph (3) requires the
permittee each year provide a certification by a qualified agronomist
that the management of the reference area is equivalent to the field(s)
to be represented. The permittee shall describe the proposed management
of the reference area in a proposal. Paragraph (4) requires that
reference areas be located within six miles of the field(s) to be
represented. Paragraph (5) requires right-of-entry on the reference
area for authorized representatives of the Department be secured by
written agreement or consent for the entire time period in which the
reference area will be used. Paragraph (6) requires that proposed
reference areas be submitted for Department approval no later than
January 1 of the year in which they are proposed to be used. Paragraph
(7) requires that the reference areas have yields established by whole
field harvest. Paragraph (8) requires that yields determined for the
reference area be those used for determination of success of
revegetation unless the Department determines that management practices
have not been equivalent during the course of the year or the
Department determines that growing conditions have not been
representative of the fields to be tested.
6. Sections 1816.117/1817.117 Revegetation: Tree and Shrub Vegetation
The State Act was amended at 225 ILCS 720/3.15 to change the
responsibility period from five years to two years for areas eligible
for remining. Sections 1816.117(a)(1) and 1817.117(a)(1) are proposed
to be amended to implement this statute by requiring that on lands
eligible for remining, the period of responsibility (until September
30, 2004) shall be two full years for trees an shrubs. Also, until
September 30, 2004, on lands eligible for remining, trees and shrubs
need not have been in place for three years; however, such trees an
shrubs shall not be counted in determining success during the same
calendar year in which they were planted.
Subsection (a)(3) is proposed to be amended to clarify that erosion
control structures, including pond embankments, shall not require the
planting of trees and shrubs.
Subsection (b) is proposed to be amended to clarify that planting
arrangements such as hedgerows, border plantings, clump plantings,
shelterbelts, and open herbaceous area 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.
Subsection (c)(1) is proposed to be revised by replacing the word
``area'' with the word ``field.'' Subsection (c)(1) 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 62 IAC 1774.13.
7. Sections 1816.133/1817.133 Post-Mining Land Capability
At subsection (a)(2)(C) a typographical error was corrected by
replacing the word ``bound'' by the word ``found.''
8. Sections 1816.151/1817.151 Primary Roads
At subsection (a), Illinois proposes to specify that the
certification shall be submitted within 30 days after completion of
construction. Illinois also defines completion of construction to mean
that the road is being used for its intended purpose as determined by
the Department.
9. Sections 1816.190/1817.190 Affected Acreage Map
At subsection (a), Illinois is proposing to delete the phrase ``and
to the county clerk.''
At subsection (b), Illinois is requiring the permittee to submit an
additional copy of the affected acreage report, which the Department
will then forward to the county clerk. Illinois is also requiring that
one of the copies contain the original signature of a company official.
Also, statutory citations are being updated in subsection (b).
R. 62 IAC 1825.14. High Capability Lands: Soil Replacement
At subsection (e), Illinois proposes adding the title of
``Compaction.''
Subsection (e)(1) is revised by adding the word `'above'' after the
regulatory citation ``Section 2825.14(a). Illinois added new subsection
(e)(1)(E) to specify that excessive compaction is also indicated by
other diagnostic methods approved by the Department.
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.
S. 62 IAC 1840.17. Review of Decision Not to Inspect or Enforce
Subsection (a) is proposed to be revised by establishing a 30 day
time period within which to request review of the Department's decision
not to inspect or enforce. Failure to file a request for informal
review within this time period shall result in a waiver of the right to
such review.
Subsection (c) is proposed to be amended to reference 62 IAC 1847.3
of the regulations for formal review of the Department's decision not
to inspect or enforce, rather than Section 8.07 of the State Act.
T. 62 IAC 1843. State Enforcement
Illinois proposed revisions to the following sections of part 1843.
1. Section 1843.13 Suspension or Revocation of Permits
At subsection (a)(1), the phrase ``Except as provided in subsection
(b) below'' is deleted.
At subsection (a)(3), the existing provisions are deleted. New
provisions were added which specify that the Department shall promptly
review the history of violations of any permittee who has been cited
for violations of the same or related requirements of the Federal Act,
the State Act, 62 IAC 1700 through 1850 or the permit during three or
more State inspections of the permit area within any twelve month
period. If after such review, the Department determines that a pattern
of violations exists or has existed, an order to show cause as provided
in subsection (a)(1) shall be issued.
Existing subsection (b) was deleted, and existing subsections (c),
(d), (e), and (f) were redesignated as (b), (c), (d), and (e),
respectively.
2. Section 1843.19 Decision Not to Pursue Enforcement Action
Illinois is proposing a new section which would allow termination
of enforcement action on a mine site if specific criteria are met.
Subsection (a) specifies that the Department may elect not to
proceed with state enforcement action on a mine site when the
Department has revoked the permit(s) pursuant to Section 1843.13; when
the Department has forfeited the performance bond pursuant to
Sec. 1800.50, or is diligently pursuing forfeiture; when the Department
has reason to believe the permittee is financially unable to complete
abatement work; when the Department is diligently pursuing collection
of all unpaid civil penalties; when the Department has established, or
assisted OSM in establishing, an ownership and control link for the
entity in question under the violations review criteria of the
regulatory program for purposes of blocking issuance of future mining
permits; and when the Department determines there is no likelihood of
improving existing environmental site conditions if state enforcement
action is taken.
Subsection (b) specifies that the Department shall document in
writing its decision not to pursue enforcement action based upon the
criteria in subsection (a). A copy of the Department's written decision
shall be forwarded to the local OSM office.
U. 62 IAC 1845.12. When Penalty Will Be Assessed
Illinois is proposing to amend subsection (d) by adding a
requirement that the Department take into account the factors set forth
in Sec. 1845.13 when determining the actual amount of the assessment.
V. 62 IAC 1847.3. Hearings
The section heading is changed from ``Permit Hearings'' to
``Hearings.''
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 and permit decisions issued pursuant to 62
IAC 1785.23.
At subsection (1)(2), Illinois is adding the provision that
judicial review may be requested if the Department failed to act within
specified time limits.
W. 62 IAC 1848.5. Notice of Hearing
Proposed new subsection (f) implements 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 the information set forth in subsections (a) and (b)
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 shall appear no more than 14 days nor less than 7
days prior to the date of the hearing. The notice shall be no less than
one eighth page in size, and the smallest type used shall be twelve
point and shall be enclosed in a black border no less than \1/4\ inch
wide. The notice shall not be placed in that portion of the newspaper
where legal notices and classified advertisements appear. Any
deviations from the requirements of this subsection attributable to the
publishing newspaper shall not be grounds for postponement or
continuance of the hearing, nor will such errors necessitate that the
notice be republished.
X. 62 IAC 1850. Training, Examination and Certification of Blasters
Illinois proposed revisions to the following sections of part 1850.
1. Section 1850.13 Training
At subsection (a), a typographical error was corrected by replacing
the word ``person'' with the word ``persons.''
At subsection (b)(14), various regulation and statute citations
were corrected.
2. Section 1850.14 Examination
Illinois proposed to amend subsection (a) by removing the
requirement that notification of a scheduled examination be made in
writing.
Illinois proposed to amend subsection (b) by removing the
requirement that notification of a scheduled reexamination be made by
letter.
3. Section 1850.15 Application and Certification
Subsection (a) is proposed to be amended by shortening the deadline
for receipt of applications from 45 days to 30 days and by shortening
the deadline for review of applications from 30 to 15 days.
4. Section 1850.16 Denial, Issuance of Notice of Infraction,
Suspension, Revocation, and Other Administrative Actions
Subsection (b) is proposed to be entitled ``Notice of Infraction.''
At subsections (b)(1)(A) and (b)(1)(D), various regulatory and statute
citations are corrected. Subsection (b)(3) is revised by requiring the
blaster to file a request for review with the Department and removing
the existing forwarding provision. The requirement to include specified
information in the request was removed. The hearing regulation
reference was corrected. The hearing is proposed to be held at one of
the Department's offices, and the existing location provision is
removed.
Subsection (c) is proposed to be entitled ``Notice of Show Cause.''
At subsection (c)(2),the word ``public'' was deleted, and the hearing
regulation citation was corrected. At subsection (c)(3), the hearing
regulation citation was corrected.
5. Section 1850.17 Judicial Review
This section is proposed to be repealed as the provision for
judicial review is contained elsewhere in Illinois' regulations.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the Illinois program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under dates or at locations other than the Springfield Field Office
will not necessarily be considered in the final rulemaking or included
in the Administrative Record.
Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under for further information contact by 4 p.m., [C.S.T.]
on November 2, 1994. The location and time of the hearing will be
arranged with those persons requesting the hearing. If no one requests
an opportunity to speak at the public hearing, the hearing will not be
held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing will end after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
for further information contact. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under addresses. A written summary of each meeting
will be made a part of the Administrative Record.
IV. 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 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (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
counterpart 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 counterpart Federal regulations.
List of Subjects in 30 CFR Part 913
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 11, 1994.
Ronald C. Recker,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 94-2569 Filed 10-17-94; 8:45 am]
BILLING CODE 4310-05-M
