[Federal Register Volume 62, Number 204 (Wednesday, October 22, 1997)]
[Rules and Regulations]
[Pages 54765-54769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27982]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 913
[SPATS No. IL-081-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 a proposed amendment to the Illinois
permanent regulatory program (hereinafter referred to as the ``Illinois
program'') pursuant to the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). This amendment provides that areas revegetated
following the removal of temporary structures such as sedimentation
ponds, roads, and small diversions are not subject to a revegetation
responsibility period and bond liability period separate from that of
the permit area or increment thereof served by such facilities. The
amendment is intended to clarify ambiguities in the State regulations
and to improve operational efficiency.
EFFECTIVE DATE: October 22, 1997.
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, IN
46204-1521, Telephone: (317) 226-6700.
SUPPLEMENTARY INFORMATION:
I. Background on the Illinois Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Illinois Program
On June 1, 1982, the Secretary of the Interior conditionally
approved the Illinois program. Background information on the Illinois
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the June 1,
1982 Federal Register (47 FR 23883). Subsequent actions concerning the
conditions of approval and program amendments can be found at 30 CFR
913.15, 913.16, and 913.17.
II. Submission of the Proposed Amendment
By letter dated June 22, 1992 (Administrative Record No. IL-1192),
Illinois submitted a proposed program amendment consisting of revisions
to a number of its approved regulations. OSM announced receipt of the
proposed amendment in the August 18, 1992, Federal Register (57 FR
37127) and, in the same notice, opened the public comment period and
provided opportunity for a public hearing on the adequacy of the
proposed amendment. The public comment period ended on September 17,
1992. Since no one requested an opportunity to testify at a public
hearing, the hearing scheduled for September 14, 1992, was canceled.
By letter dated April 27, 1993 (Administrative Record No. IL-1207),
Illinois submitted revisions to its proposed amendment in response to
concerns raised by OSM in letters dated September 2, 1992, and October
2, 1992 (Administrative Record Nos. IL-1204 and IL-1205, respectively),
and in response to comments received from other governmental agencies
and individuals. OSM announced receipt of the revised amendment in the
May 17, 1993, Federal Register (58 FR 28804) and, in the same notice,
reopened the public comment period and again provided an opportunity
for a public hearing. The public comment period closed on June 16,
1993. As with the previous submittal, no one requested an opportunity
to testify at a public hearing; therefore, the hearing scheduled for
June 11, 1993, was canceled.
OSM subsequently announced its decision on most provisions of the
proposed amendment in the September 3, 1993, Federal Register (58 FR
46845). However, in the same document, OSM stated at 58 FR 46849-50
(finding 11(c)) and 30 CFR 913.15(o)(4) that it was deferring a
decision on the proposed revisions to sections 1816.116(a)(2)(C) and
1817.116(a)(2)(C) of title 62 of the Illinois Administrative Code (IAC)
until additional opportunity for public comment was provided in a
separate Federal Register document. That commitment was fulfilled by
the notice published on September 15, 1993 (58 FR 48333), which
reopened the public comment period until October 15, 1993. This notice
also included similar proposed revisions to the Kentucky and Ohio
regulations as well as a discussion of OSM's proposed policy concerning
restart of the revegetation responsibility period every time a small
portion of the permit area requires reseeding or replanting.
Subsequently, in the May 29,
[[Page 54766]]
1996, Federal Register (61 FR 26792), OSM approved similar proposed
revisions to the Colorado regulations, based on the adoption of the
proposed OSM policy published on September 15, 1993 (58 FR 48333).
Only Illinois' proposed revisions are under consideration in this
final rule document. The Kentucky and Ohio proposals will be addressed
in a separate final rule document. Since no one requested an
opportunity to testify at a public hearing, no hearing was held.
The amendment revises two regulations defining normal husbandry
practices and other activities that will not restart the liability
period. It also includes a document explaining how the State intends to
interpret and implement these rules. This policy document specifies
that Illinois will consider the reseeding of areas from which temporary
features such as sedimentation ponds, roads, and diversions have been
removed after vegetation is established on the surrounding area to be
non-augmentative.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
deferred revisions at 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C)
and the accompanying policy document that explains how the State
intends to implement these rules.
A. OSM's policy concerning the term of liability for reclamation of
roads and temporary sediment control structures. As outlined in the May
29, 1996, Federal Register (61 FR 26792), OSM has adopted the policy
published for comment in the September 15, 1993, Federal Register (58
FR 48333). Section 515(b)(20) of SMCRA provides that the revegetation
responsibility period shall commence ``after the last year of augmented
seeding, fertilizing, irrigation, or other work'' needed to assure
revegetation success. In the absence of any indication of Congressional
intent in the legislative history, OSM interprets this requirement as
applying to the increment or permit area as a whole, not individually
to those lands within the permit area upon which revegetation is
delayed solely because of their use in support of the reclamation
effort on the planted area. As implied in the preamble discussion of 30
CFR 816.46(b)(5), which prohibits the removal of ponds or other
siltation structures until two years after the last augmented seeding,
planting of the sites from which such structures are removed need not
itself be considered an augmented seeding necessitating an extended or
separate liability period (48 FR 44038-44039, September 26, 1983).
The purpose of the revegetation responsibility period is to ensure
that the mined area has been reclaimed to a condition capable of
supporting the desired permanent vegetation. Achievement of this
purpose will not be adversely affected by this interpretation of
section 515(b)(20) of SMCRA since (1) the lands involved are relatively
small in size and either widely dispersed or narrowly linear in
distribution and (2) the delay in establishing revegetation on these
sites is due not to reclamation deficiencies or the facilitation of
mining, but rather to the regulatory requirement that ponds and
diversions be retained and maintained to control runoff from the
planted area until the revegetation is sufficiently established to
render such structure unnecessary for the protection of water quality.
In addition, the areas affected likely would be no larger than
those which could be reseeded (without restarting the revegetation
period) in the course of performing normal husbandry practices, as that
term is defined in 30 CFR 816.116(c)(4) and explained in the preamble
to that rule (53 FR 34636, 34641; September 7, 1988; 52 FR 28012,
28016; July 27, 1987). Areas this small would have a negligible impact
on any evaluation of the permit area as a whole. Most importantly, this
interpretation is unlikely to adversely affect the regulatory
authority's ability to make a statistically valid determination as to
whether a diverse, effective permanent vegetative cover has been
successfully established in accordance with the appropriate
revegetation success standards. From a practical standpoint, it is
usually difficult to identify precisely where such areas are located in
the field once revegetation is established in accordance with the
approved reclamation plan.
The above discussion of the rules in 30 CFR Part 816, which applies
to surface mining activities, also pertains to similarly or identically
constructed section in 30 CFR Part 817, which applies to underground
mining activities.
B. Comparison of Illinois' policy with OSM's policy clarification.
Illinois' policy document specifies that the State will consider
limited reseeding and associated fertilization and liming of areas
where features such as sediment ponds, roads, and small diversions have
been removed as non-augmentative on agricultural and non-agricultural
lands where the area is small in relation to the watershed of the area.
The statement also stipulates that any minor reseeded area be
revegetated under approved plans and that vegetation be fully
established at the time of final bond release. Illinois' reference to
roads in its statement is interpreted by OSM to mean those roads
necessary for maintenance of sediment ponds, diversions, and
reclamation areas. Ancillary roads used for maintenance do not include
haul roads or other primary roads which should either have been removed
upon completion of mining or approved to be retained for an approved
postmining land use. On April 11, 1997 (Administrative Record No. IL-
1243). OSM discussed the above interpretation of roads with Illinois.
Illinois agreed with OSM's interpretation of the meaning of the term
``roads'' as used in its policy document.
Because Illinois' policy document stipulates that these small
reclaimed areas must be revegetated under approved plans, the policy
ensures that the vegetation of these areas would be subject to
Illinois' counterparts to the Federal regulations at 30 CFR 816.111 and
those portion of Illinois' counterparts to the Federal regulations at
30 CFR 816.116 related to the attainment of the postmining land use.
Illinois' policy requirement that vegetation on these small areas be
fully established at the time of final bond release would tend to
discourage the removal of ponds, roads, or diversions toward the end of
the liability period for the surrounding area. If removal of the
structures occurs toward the end of the liability period for the larger
reclaimed area, the areas where the ponds or diversions existed would
not qualify for final bond release until diverse, effective, and
permanent vegetative cover is established that meets the standards of
Illinois' counterpart to 30 CFR 816.111.
Although Illinois' policy document is primarily concerned with the
definition of normal husbandry practices, the term ``non-augmentative''
is used in reference to the removal of sediment ponds, roads, and small
diversions that were used in support of reclamation. OSM interprets
this to mean Illinois considers removal of these structures as non-
augmentative, but not as a normal husbandry practice. OSM agrees that
removal of such structures, while being non-augmentative, in not a
normal husbandry practice.
Based on the above discussion, the Director finds that Illinois'
policy is consistent with and no less effective than the Federal
regulations at 30 CFR 816.46(b) (5) and (6), 816.150(f)(6), and
sections 515(b) (19) and (20) of SMCRA,
[[Page 54767]]
as clarified by OSM in the September 15, 1993, Federal Register (58 FR
48333).
C. Removal of Required Regulatory Program Amendment 30 CFR
913.16(o). In the December 13, 1991, Federal Register (56 FR 64986),
OSM placed required regulatory program amendment 30 CFR 913.16(o) on
the Illinois program. It required Illinois to either submit revisions
to 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C) to require OSM
approval of all normal husbandry practices other than those
specifically listed in its approved program or delete the provisions
providing Illinois with the authority to approve unspecified husbandry
practices. By letter dated June 22, 1992 (Administrative Record No. IL-
1192), Illinois submitted proposed changes to its program. As part of
these revisions, at 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C),
Illinois proposed to revise its revegetation standards by specifying
normal husbandry practices for the State. These included approved
agricultural practices described in the Illinois Agronomy Handbook and
those practices which are part of an approved conservation plan subject
to the Food, Agriculture, Conservation and Trade Act of 1990 (7 U.S.C.
1421 et seq.). The Illinois Agronomy Handbook is published by the
University of Illinois--Cooperative Extension Service, Office of
Agricultural Communications and Education. It includes recommended
fertility management practices for row crops and hayland, which are
tailored for site specific soil conditions; crop rotation practices;
tillage practices; and application practices on unmined land in
Illinois.
Subsequently, by letter dated April 27, 1993 (Administrative Record
No. IL-1207), Illinois submitted revisions to its proposed amendment in
response to issue letters prepared by OSM on September 2, and October
2, 1992 (Administrative Record Nos. IL-1204 and IL-1205, respectively),
and in response to comments received from other agencies and
individuals. Included in these revisions was the policy document in
which Illinois explained how it would determine what are normal
husbandry practices and how it would judge management practices on
mined land against the recommended agricultural management practices
and soil conservation practices of the referenced documents.
These proposed revisions, which were approved in the September 3,
1993, Federal Register (58 FR 46849), and the policy document satisfy
required regulatory program amendment 30 CFR 913.16(o). Therefore, the
Director is taking this opportunity to remove it from the Illinois
program.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on Illinois' policy document and OSM's proposed
policy.
Comments were received from the Illinois Department of Mines and
Minerals (now the Illinois Department of Natural Resources--Office of
Mines and Minerals), the Kentucky Coal Association, the Kentucky
Resources Council, the Lignite Energy Council, the National Coal
Association, and the North Dakota Public Service Commission. Except for
the Kentucky Resources Council, all of the commenters were in favor of
the policy.
In response to the Director's proposed clarification of OSM policy,
the Kentucky Resources Council initiates its comments with the premise
that OSM has proposed to treat the initial seeding and restoration of
areas disturbed by diversions, roads and sedimentation ponds as
``normal husbandry practices.'' It then argues that the initial seeding
of such areas is not normal husbandry practice, and any revegetation
other than ``husbandry practices'' as defined by 30 CFR 816.116(c)(4)
constitutes ``augmented seeding'' and would therefore require extension
of the full liability period for the establishment of permanent
vegetation. First, the Director did not base not restarting the
liability period on the contention that revegetation of such areas is a
normal husbandry practice. Second, the Director does not agree that any
revegetation other than ``normal husbandry practices'' constitutes
``augmented seeding.'' The legislative history of the Act reveals no
specific Congressional intent in the use of the term ``augmented
seeding.'' Accordingly, OSM's interpretation of augmented seeding is
given deference so long as it has a rational basis. OSM would not
consider the seeding of small areas, such as ponds and their associated
diversions and roads, as augmented seeding. For further discussion of
such rationale, see the Director's Finding A. Under the proposed
Illinois, Kentucky, and Ohio amendments, areas reclaimed following
removal of temporary structures such as sedimentation ponds and
associated structures and roads would not be subject to a separate or
extended bond liability period apart form the applicable permit area
served by such structures. The seeding of sedimentation ponds and their
associated diversions and roads is not the result of reclamation
failure, but because 30 CFR 816.46(b)(5) prohibits the removal of
temporary sedimentation ponds until two years after the last augmented
seeding.
The Kentucky Resources Council overlooks the fact that for the vast
majority of the reclaimed area the revegetation responsibility period
will be at least five years. Neither Congressional history nor the
language of the statute distinguishes between initial overall
reclamation of a mined area and the subsequent restoration of temporary
structures like sedimentation ponds and maintenance roads. In the
absence of such distinction, the Secretary is delegated discretion to
determine whether a proposed state amendment is no less effective than
the Act and consistent with the counterpart Federal regulation. The
Director's stated interpretation of Section 515(b)(20) is that it
applies ``to the increment or permit area as a whole, not individually
to those lands within that area upon which revegetation is delayed
solely because of their use in support of the reclamation effort of the
planted area.'' See 58 FR 48333, September 15, 1993.
OSM has taken a consistent position in approving an amendment to
the Colorado surface mining program which provided that reclaimed
temporary drainage control facilities shall not be subject to the
extended liability period for revegetative success or the related bond
release criteria (61 FR 26792, May 29, 1996). The Director, therefore,
does not agree with the commenter's interpretation of Section
515(b)(20) of SMCRA.
Because no one requested an opportunity to speak at a public
hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Illinois program. Comments were
received from the U.S. Forest Service and the U.S. Bureau of Mines. The
U.S. Forest Service commented that it had reviewed OSM's proposed rule
to clarify its policy towards revegetation and agreed with the proposed
rule.
The U.S. Bureau of Mines suggested that OSM consider the
significant differences in the reclamation of sediment structures and
roads, since sediment structures generally possess characteristics
necessary for successful reclamation, while roads generally require
significant initial work to
[[Page 54768]]
develop a necessary growth environment. OSM agrees with the commenter.
OSM's policy and Illinois' regulations and policy document require that
when such structures are removed, the land on which they were located
must be regraded and revegetated in accordance with approved plans and
the requirements of 30 CFR 816.111 through 816.116, or state
counterparts. Because the Illinois policy will be limited to small
areas, roads posing significant potential for reclamation problems will
be excluded.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). The
deferred provision from Illinois proposed amendment did not pertain to
air or water quality standards. Therefore, OSM did not request the
EPA's concurrence.
Pursuant to 732.17(h)(11)(I), OSM solicited comments on the
proposed amendment from the EPA (Administrative Record No. IL-1225). It
responded on October 18, 1993 (Administrative Record No. IL-1231), that
it concurred without comment.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record Nos.
IL-1226 and IL-1228). Neither the SHPO and ACHP responded to OSM's
request.
V. Director's Decision
Based on the above finding, the Director approves Illinois'
regulations at 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C) and its
policy document as submitted on June 22, 1992, and as revised on April
27, 1993.
The Federal regulations at 30 CFR Part 913, codifying decisions
concerning the Illinois program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the corresponding Federal regulations.
Unfunded Mandates
OSM has determined and certifies pursuant to 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: October 3, 1997.
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.
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Citation/
Original amendment submission date Date of final publication description
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June 22, 1992................................ October 22, 1997............................ 62 IAC
1816.116(a)(2)(C);
1817.116(a)(2)(C);
Non-augmentation
Policy Statement.
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Sec. 913.16 [Amended]
3. Section 913.16 is amended by removing and reserving paragraph
(o).
[FR Doc. 97-27982 Filed 10-21-97; 8:45 am]
BILLING CODE 4310-05-M
