[Federal Register Volume 63, Number 220 (Monday, November 16, 1998)]
[Proposed Rules]
[Pages 63630-63637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30545]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 913
[SPATS No. IL-093-FOR]
Illinois Abandoned Mine Land Reclamation Plan
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 abandoned mine land reclamation plan (Illinois plan) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA ). Illinois
is proposing revisions and additions to the Illinois plan relating to
agency reorganization, legal opinion, definitions, project priorities,
utilities and other facilities, eligible coal lands and water, eligible
non-coal lands and water, project selection, annual grant process,
liens, rights of entry, public participation, bidding requirements and
conditions, contracts, and contractor responsibility. Illinois intends
to revise the Illinois plan to be consistent with the corresponding
Federal regulations and SMCRA and to improve operational efficiency.
DATES: Written comments must be received by 4:00 p.m., e.s.t., December
16, 1998. If requested, we will hold a public hearing on the amendment
on December 11, 1998. We will accept requests to speak at the hearing
until 4:00 p.m., e.s.t. on December 1, 1998.
ADDRESSES: You should mail or hand deliver written comments and
requests to speak at the hearing to Andrew R. Gilmore, Director,
Indianapolis Field Office, at the address listed below.
You may review copies of the Illinois program, the amendment, a
listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses listed below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the amendment by contacting
OSM's Indianapolis Field Office.
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.
Illinois Department of Natural Resources, 524 South Second Street,
Springfield, Illinois 62701-1787.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,
Indianapolis Field Office. Telephone: (317) 226-6700. Internet:
agilmore@mcrgw.osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on Title IV of SMCRA
Title IV of SMCRA established an Abandoned Mine Land Reclamation
(AMLR) program for the purposes of reclaiming and restoring lands and
water resources adversely affected by past mining. This program is
funded by a reclamation fee imposed upon the production of coal. As
enacted in 1977, lands and waters that were mined or affected by mining
and abandoned or left in an inadequate reclamation status before August
3, 1977, and for which there was no continuing reclamation
responsibility under State or Federal
[[Page 63631]]
law, are eligible for reclamation. The AML Reclamation Act of 1990
(Pub. L. 101-508, Title VI, Subtitle A, Nov. 5, 1990, effective Oct. 1,
1991) amended SMCRA, 30 U.S.C. 1231 et. seq., to provide changes in the
eligibility of project sites for AML expenditures. Title IV of SMCRA
now provides for reclamation of certain mine sites where the mining
occurred after August 3, 1977. These include interim program sites
where bond forfeiture proceeds were insufficient for adequate
reclamation and sites affected any time between August 4, 1977, and
November 5, 1990, for which there were insufficient funds for adequate
reclamation due to the insolvency of the bond surety. Title IV provides
that a State with an approved AML Plan has the responsibility and
primary authority to implement the program.
II. Background on the Illinois Plan
On June 1, 1982, the Secretary of the Interior approved the
Illinois plan. You can find background information on the Illinois
plan, including the Secretary's findings, the disposition of comments,
and the approval of the plan in the June 1, 1982, Federal Register (47
FR 23886). You can find later actions concerning the Illinois plan and
amendments to the plan at 30 CFR 913.25.
III. Description of the Proposed Amendment
By letter dated October 22, 1998 (Administrative Record No. IL-
5022), Illinois sent us an amendment to its plan under SMCRA. Illinois
sent the amendment in response to a letter dated September 26, 1994
(Administrative Record No. IL-700-AML), that we sent to Illinois under
30 CFR 884.15(d). The amendment also includes changes made at Illinois'
own initiative. Illinois proposes to amend the narrative and policy
sections of its plan and its regulations at Title 62 Part 2501 and
Title 44 Part 1150 of the Illinois Administrative Code (IAC). Below is
a summary of the changes proposed by Illinois. The full text of the
amendment is available for your inspection at the locations listed
above under ADDRESSES.
A. Changes in the Narrative of the Illinois Abandoned Mine Reclamation
Plan.
1. Introduction
Illinois revised this section to describe the history of the
Illinois Abandoned Mined Lands Reclamation Program, the creation of the
Department of Natural Resources, and the requirements of Title V of the
Surface Mining Control and Reclamation Act of 1977.
2. State Reclamation Plan.
a. General. Illinois reorganized its State reclamation plan.
Illinois also removed references to the Soil Conservation Service (SCS)
and replaced them with references to the Natural Resource Conservation
Service (NRCS).
b. Eligible Coal Lands and Water. Illinois added this section in
response to 30 CFR 874.12(e). Illinois stated that 62 IAC 2501.10,
Eligible Coal Lands and Water, provides the eligibility guidelines that
correspond to this citation.
c. Exclusion of Certain Non-coal Reclamation Sites. Illinois added
this section in response to 30 CFR 875.16. Illinois states that 62 IAC
2501.11, Eligible Non-coal Lands and Water, provides the eligibility
guidelines that correspond to this citation.
d. Authorization by the Governor. Illinois revised this section by
stating that P.A. 81-1020, the Abandoned Mined Lands and Water
Reclamation Act, as amended, contains the Governor's authorization
required by 30 CFR 884.13(a).
e. Legal Opinion. Illinois revised this section by providing a
letter from the chief legal officer of the Department of Natural
Resources as the legal opinion required by 30 CFR 884.13(h).
f. Project Selection. Illinois revised this section by stating that
Sections 2501.7, 2501.8, 2501.10, 2501.11, 2501.13, 2501.16, and
2501.34 of the rules entitled ``Abandoned Mined Lands Reclamation''
provide the guidelines for project selection required by 30 CFR
884.13(c)(2).
g. Coordination of Reclamation Activities. Illinois revised the
existing language in this section by changing the word ``semi-annual''
to ``annual.''
h. Reclamation of Private Land. Illinois revised this section to
include an explanation of language found at 62 IAC 2501.25(b)(2).
i. Public Participation. Illinois revised the public participation
sections for preparation of the original state plan, promulgation of
rules and plan amendments, public participation in the reclamation
program, compliance with Executive Order 12372, and the list of
regional clearinghouses.
j. Administration. Illinois revised the administration section to
reflect the reorganization of the Division of Abandoned Mined Lands
Reclamation, within the Office of Mines and Minerals, Department of
Natural Resources. They also updated the list of other State offices
and agencies.
k. Personnel. Illinois revised the description of its
administrative and management structure and its personnel staffing
policies.
l. Procurement. Illinois removed a paragraph about Section 9.01 of
the Illinois Purchasing Act.
m. Reclamation Activity. Illinois revised the amount of acreage in
need of reclamation and the amount of acreage funded through the
emergency response program. They also added a new paragraph on the
reclamation activity entitled ``Reclamation of Mine Subsidence.''
n. Reports. Illinois added this section as a response to 30 CFR
884.13(f). Illinois states that the Department will submit the OSM-76
Form, or its electronic counterpart, in the Abandoned Mine Land
Inventory System at the time of project completion as 30 CFR 884.13(f)
requires.
o. Priorities. Illinois added this section in response to 20 ILCS
1920/2.03(4). Illinois states that legislative measures will be taken
to ensure compatibility between state statutes and Federal regulations.
B. Changes in 62 IAC 2501
1. Reference Changes
Illinois made the following statutory reference changes throughout
62 IAC 2501: Ill. Rev. Stat. 1991, ch 96\1/2\, pars. 8001.01 et seq.
was changed to 20 ILCS 1920; Ill. Rev. Stat. 1985, ch. 96\1/2\, par.
8001.03(a)(7) was changed to 20 ILCS 1920/1.03(5); Ill. Rev. Stat.
1985, ch. 96\1/2\, par. 8001.01 et seq. was changed to 20 ILCS 1920;
Ill. Rev. Stat. 1991, ch. 127, par. 1001-1 et seq. was changed to 5
ILCS 100; Ill. Rev. Stat. 1989, ch. 96\1/2\, par. 8001.02(a) was
changed to 20 ILCS 1920/1.02; Ill. Rev. Stat. 1989, ch. 96\1/2\, par.
8001.03(a) was changed to 20 ILCS 1920/2.03(a); Ill. Rev. Stat. 1985,
ch. 96\1/2\, par. 8003.05 was changed to 20 ILCS 1920/3.05; Ill. Rev.
Stat. 1989, ch. 96\1/2\, par. 8002.09(b) was changed to 20 ILCS 1920/
2.09; Ill. Rev. Stat. 1983, ch. 96\1/2\, par. 800.04(d) was changed to
20 ILCS 1920/2.04(d); and Ill. Rev. Stat. 1985, ch. 127, pars. 133b1 et
seq. was changed to 30 ILCS 605.
Illinois also made the following title changes throughout 62 IAC
2501: all references to the ``Council'' have been changed to the
``Department''; and all references to ``Soil Conservation Service''
have been changed to ``Natural Resource Conservation Service.''
2. Section 2501.1, Scope
In this section, Illinois removed the existing language and
replaced it with the following:
[[Page 63632]]
This Part implements the Abandoned Mined Lands and Water
Reclamation Act [20 ILCS 1920], which provides that the Department
of Natural Resources shall administer a program for the reclamation
of Abandoned Mined Lands (``AML''). This act is complementary to
Title IV of the federal Surface Mining Control and Reclamation Act
of 1977 (30 U.S.C. 1201 et seq., P.L. 95-87, as amended).
3. Section 2501.4, Definitions
Illinois removed the definition of ``Council,'' added a definition
for ``Department,'' and revised the definition of ``Federal Office.''
4. Section 2501.7, Objectives and Priorities
Illinois removed the language found at section 2501.7(c)(4). They
also added new sections 2501.7(d) and (e) to read as follows:
(d) Generally, projects lower than a priority 2 should not be
undertaken until all known higher priority coal projects either have
been accomplished, are in the process of being reclaimed, or have
been approved for funding by OSM, except in those instances where
such lower priority projects may be undertaken in conjunction with a
priority 1 or 2 site in accordance with OSM's ``Final Guidelines for
Reclamation Programs and Projects'' (61 FR 68777-68785, December 30,
1996).
(e) When the Department finds in writing that the adverse
effects of coal mining practices have an adverse economic impact
upon a community, a project shall be designated as a priority 1 or 2
threat to the general welfare, regardless of the nature of the
problem conditions.
Finally, at Section 2501.7(f), Illinois changed the date by which
the Department may make expenditure obligations on lands mined for
substances other than coal. The date was changed from August 14, 1994,
to August 31, 1999.
5. Section 2501.8, Utilities and Other Facilities
In this new section, Illinois provides guidance on use of AML funds
for water supplies. Section 2501.8(a) allows the Department to use up
to 30 percent of the annual AML funds for the purpose of protecting,
repairing, replacing, constructing, or enhancing facilities relating to
water supplies, including water distribution facilities and treatment
plants, to replace water supplies adversely affected by coal mining
practices. Section 2501.8(b) provides that adverse effects on water
supplies that occurred both before and after August 3, 1977, are
eligible for AML funds, in spite of the criteria specified in Section
2501.10(b), if the Department finds as part of its eligibility opinion
that the adverse effects are caused predominantly by mining processes
undertaken and abandoned before August 3, 1977. Section 2501.8(c)
provides that adverse effects on water supplies that occurred both
before and after the dates (and under the criteria) set forth in
Section 2501.10(d) are eligible for AML funds, notwithstanding the
criteria specified in Section 2501.10(b), if the Department finds as
part of its eligibility opinion that the adverse effects are caused
predominately by mining processes undertaken and abandoned before those
dates. Finally, section 2501.8(d) provides that enhancement of
facilities or utilities includes upgrading to meet any local, State, or
Federal public health or safety requirement. Enhancement does not
include service area expansion not necessary to address a specific
abandoned mine land problem.
6. Section 2501.10, Eligible Coal Lands and Water
In this section, Illinois removed section 2501.10(b) and
redesignated section 2501.10(a) as Section 2501.10. Sections 2501.10
(a)(1) through (3) were redesignated as sections 2501.10(a) through
(c). Illinois added new sections 2501.10(d) through (h) to read as
follows:
(d) Notwithstanding subsections (a), (b) and (c) of this
section, coal lands and waters damaged and abandoned after August 3,
1997 by coal mining processes are also eligible if the Department,
with the concurrence of OSM, finds in writing that:
(1) They were mined for coal or affected by coal mining
processes; and
(A) The mining occurred and the site was left in either an
unreclaimed or inadequately reclaimed condition between August 4,
1977 and June 1, 1982, and any funds for reclamation or abatement
that are available pursuant to a bond or other form of financial
guarantee or from any other source are not sufficient to provide for
adequate reclamation or abatement at the site, or
(B) The mining occurred between August 4, 1977 and November 5,
1990 and the surety of the mining operator became insolvent during
that period, and as of November 5, 1990, funds immediately available
from proceedings relating to insolvency, or from any financial
guarantee or other source, are not sufficient to provide for
adequate reclamation or abatement at the site; and
(2) The site qualifies as a priority 1 or 2 site under Section
2501.7(c) and (e) of this Part.
(e) The Department may expend funds available under subsections
402(g)(1) and (5) of the Surface Mining Control and Reclamation Act
for reclamation and abatement of any site eligible under Subsection
(d) above, if the Department, with concurrence of OSM, makes the
findings required in subsection (d) above and the Department
determines that the reclamation priority of the site is the same or
more urgent that the reclamation priority for the lands and water
eligible pursuant to subsections (a), (b) or (c) above that quality
as a priority 1 or 2 site under Section 403(a) of the Surface Mining
Control and Reclamation Act (30 U.S.C. 1233(a)).
(f) With respect to lands and waters eligible pursuant to
subsection (d) or (e) above, monies available from sources outside
the Abandoned Mine Reclamation Federal Trust Fund or that are
ultimately recovered from responsible parties shall either be used
to offset the cost of the reclamation or transferred to the
Abandoned Mine Reclamation Federal Trust Fund if not required for
further reclamation activities at the permitted site.
(g) If reclamation of a site covered by an interim or permanent
program permit is carried out under the AML program, the permittee
of the site shall reimburse the AML Fund for the cost of reclamation
that is in excess of any bond forfeited to ensure reclamation. The
Department, when performing reclamation under subsection (d) above
shall not be held liable for any violations of any performance
standards or reclamation requirements specified in Title V of the
Federal Act, or in the Surface Coal Mining Land Conservation and
Reclamation Act [225 ILCS 720], nor shall a reclamation activity
undertaken on such lands or waters be held to any standards set
forth in those Acts.
(h) Surface coal mining operations on lands eligible for
remining shall not affect the eligibility of such lands for
reclamation and restoration after the release of the bonds or
deposits posted by any such operation. If the bond or deposit for a
surface coal mining operation on lands eligible for remining is
forfeited, AML funds may be used if the amount of such bond or
deposit is not sufficient to provide for adequate reclamation or
abatement, except that if emergency conditions warrant, the
Department shall immediately exercise its authority under the
Emergency program.
7. Section 2501.11, Eligible Non-Coal Lands and Water
Illinois added this new section to provide reclamation eligibility
guidelines for non-coal lands and water. Non-coal lands and water are
eligible for reclamation activities if they were mined or affected by
mining processes; they were mined before August 3, 1977, and left or
abandoned in either an unreclaimed or inadequately reclaimed condition;
the operator, permittee, or agent of the permittee has no continuing
responsibility for reclamation under statutes of the State or Federal
Government due to bond forfeiture, and the forfeited bond is
insufficient to pay the total cost of reclamation; the Governor agrees
that reclamation is necessary and submits a letter of request to the
Federal Office; it is necessary for the protection of the public health
and safety, general welfare and property; and the lands and water are
not designated for remedial action under the
[[Page 63633]]
Uranium Mill Tailings Radiation Control Act of 1978 or have been listed
for remedial action under the Comprehensive Response Compensation and
Liability Act of 1980.
8. Section 2501.13, Preliminary Project Selection
Illinois revised the language in section 2501.13(a). Currently,
this section requires the Department to select reclamation projects
from an abandoned mine site database that contains all known abandoned
mine sites in the State affected prior to August 3, 1977 and which
contain problem conditions. Illinois revised section 2501.13(a) to
require the Department to select reclamation projects from a database
that contains all known abandoned mine sites in the State which are
eligible under Sections 2501.10 and 2501.11.
In section 2501.13(b), Illinois revised the list of problem
conditions the Department is to use to determine which sites are in the
most need of reclamation. New section 2501.13(b)(9) provides that
flooding of roads or improved property caused by sedimentation from AML
sites is a problem condition. New section 2501.13(b)(10) provides that
hazardous recreational water bodies is a problem condition. Existing
sections 2501.13(b)(9) and (10) were redesignated as sections
2501.13(b)(11) and (12). Finally, Illinois added new section
2501.13(b)(13) to provide that coal refuse material or spoilbanks
adversely affecting lands or water resources is a problem condition.
Illinois made minor wording changes in section 2501.13(c)(3).
9. Section 2501.16, Final Selection and Project Deferment
Illinois revised section 2501.16(a) to require the Department to
select from those abandoned mine sites identified under section 2501.13
projects for reclamation. The Department must base its selection upon
the following criteria and consideration: satisfactory funding levels
to complete reclamation; a complete application from the owner(s) of
property that contains the significant portion of problem conditions on
a site; and evidence that a timely Consent for Entry can be obtained
from the owner(s) of the project site. Finally, Illinois removed
section 2501.16(c).
10. Section 2501.19, Annual Grant Process
Illinois removed the language found in this section and replaced it
with language requiring the Department to submit an annual grant
application to OSM in accordance with the requirements of 30 CFR 886 to
cover allowable costs of the AML program. These allowable costs include
the actual costs of construction, operation and maintenance, planning
and engineering, construction inspection, other necessary
administrative costs, and up to 90 percent of the costs of acquisition
of land. This section also requires the Department to provide copies of
the annual AML grant application to the public upon written request to
the Department. Finally, the Department must circulate notices of
annual AML grant applications through the Illinois State Library System
and the Illinois State Clearinghouse.
11. Section 2501.22, Reclamation Activities
Illinois revised this section to allow the Department to enter into
cooperative agreements, as necessary and appropriate, with any person
or governmental entity to reclaim abandoned land. The cooperative
agreements may concern the furnishing of services, plans, layouts,
materials, or any incidental services needed to reclaim the land. All
parties that enter into a cooperative agreement must agree to comply
with all applicable requirements of State and Federal law.
12. Section 2501.25, Reclamation on Private Lands
Illinois added new language at 2501.25(b)(3) to allow the
Department to waive a lien if it finds, before construction, that the
reclamation work is being undertaken solely to seal, fill, or mark an
open or settled mine shaft, drift or slope entry, adit or other mine
opening or a subsidence pit. In section 2501.25(b)(5), Illinois revised
the existing language to allow landowners to file petitions for a
hearing to determine the increase in market value of reclaimed land.
The landowners are to file the petitions with the Department through
the Director of the Office of Mines and Minerals. At section
2501.25(c)(2), Illinois added language to provide that a reclamation
lien created under Section 2.09 of the State Act will continue to exist
until satisfied, subject only to the 40-year limitation period and the
requirements of Sections 13-118 through 13-121 of the Code of Civil
Procedure [735 ILCS 5/13-118 et seq.]. Finally, Illinois added new
section 2501.25(c)(3) to allow the Department to request appropriate
foreclosure action by the Attorney General to satisfy the lien if the
reclaimed property is transferred for an actual consideration in excess
of the fair market value of the property after reclamation, and the
lien is not satisfied at the time of transfer.
13. Section 2501.28, Rights of Entry
Illinois made minor word changes in section 2501.28(a).
14. Section 2501.40, Public Participation
Illinois added this new section to provide for public participation
in the AML program and projects. Section 2501.40(a) provides that any
interested party may submit information and comments to the Director of
the Department, the Director of the Office of Mines and Minerals, or
the Manager of the AML Division at any time. Section 2501.40(b)
requires that the Department handle verbal and written requests for
information as quickly as possible, and that requests made under the
Freedom of Information Act (5 ILCS 140) be made and handled in
accordance with the generally applicable procedures of the Department
of Natural Resources. Section 2501.40(c) requires the Department to
have available, upon request, copies of the Illinois State Reclamation
Plan for Abandoned Mined Lands, Office of Mines and Minerals Annual and
Bi-Annual Reports, specific project reports, and brochures and program
materials. However, the availability of such reports, brochures and
program materials can not be deemed a waiver of the Department's right
to charge fees for its actual cost of reproducing and certifying public
records requests under the Freedom of Information Act. Further, the
Department may charge fees for its actual cost for providing multiple
copies of free publications. Finally, section 2501.40(d) was added to
read as follows:
(d) The Department shall hold such public meetings as it
determines necessary and appropriate to advise the public of planned
or ongoing AML projects, and to solicit input and participation in
the AML program. Any interested person may request, in writing, that
the Department hold a public meeting in connection with any AML
project or program activity. Upon receipt of a written request to
hold a public meeting, the Department shall contact the landowners
directly involved in the project, as well as the local government
bodies that may be interested. The Department shall schedule a
public meeting if it determines that sufficient public interest
exists to warrant the public meeting.
C. Changes in 44 IAC 1150
1. Reference Changes
Illinois made the following statutory reference changes throughout
44 IAC 1150: Ill. Rev. Stat. 1985, ch. 96\1/2\, pars. 8001.01 et seq.
and Ill. Rev. Stat. 1991, ch.127, par. 1005-75 were changed to
[[Page 63634]]
20 ILCS 1920 and 5 ILCS 100/5-75, respectively.
Illinois made the following title changes throughout 44 IAC 1150:
all references to the ``Abandoned Mined Lands Reclamation Council'' and
``Council'' have been changed to the ``Illinois Department of Natural
Resources'' or ``Department'; all references to ``him'' have been
revised to ``him/her'' or some other gender neutral reference; and all
references to the ``Executive Director'' have been changed to the
``Director of the Office of Mines and Mineral,'' ``Director of the
Department,'' or ``Director,'' as appropriate.
2. Section 1150.10, Purpose
Illinois revised the language in this section to read as follows:
The Abandoned Mined Lands and Water Reclamation Act (``Act'')
[20 ILCS 1920] provides that the Illinois Department of Natural
Resources shall administer a program for the reclamation of
abandoned lands and waters in accordance with the Act. This Part
describes standard procedures for the Department's Office of Mines
and Minerals, Division of Abandoned Mined Lands Reclamation, for
advertising, bidding and awarding contracts for construction on
abandoned mined lands (``AML'') reclamation projects. This Part also
prescribes standard procedures for obtaining the necessary outside
professional services as needed in the administration of the AML
program. The purpose is to prescribe procedures which will implement
the AML program in a way which satisfies the requirements of the
various State of Illinois purchasing laws, as well as federal grant
requirements for funding pursuant to the Surface Mining Control and
Reclamation Act of 1977, as amended (30 USC 1201 et seq.).
3. Section 1150.20, Scope
Illinois removed the first sentence in this section and made minor
word changes.
4. Section 1150.30, Applicability
Illinois removed the existing language in this section, and
replaced it with applicability guidelines for this part and its
subparts. Section 1150.30(a) states that this part applies to all
contracts by the Division of Abandoned Mined Lands Reclamation for
reclamation construction and professional services contracts. Section
1150.30(b) states that subpart B applies to the advertising, bidding
and awarding of contracts for construction on planned reclamation
projects that have been designed in the normal course of the AML
program. Section 1150.30(c) states that subpart C applies to
construction contracts that are needed to minimize emergency conditions
which involve public health and safety danger and cannot wait for
normal program abatement procedures. Finally, section 1150.30(d) states
that subpart D applies to the selection of Consultants to provide
professional services covered by the Architectural, Engineering, and
Land Surveying Qualifications Based Selections Act [30 ILCS 535].
5. Section 1150.100, Definition of Terms
Illinois removed the following definitions: ``Council'' and
``Executive Director.''
Illinois added the following definitions: ``AML''; ``AVS'';
``bid''; ``Department''; ``OSM''; ``subconsultant''; and
``subcontractor.''
Illinois revised the following definitions: ``advertisement'';
``award''; ``Contract''; ``contract bond''; ``Department of
Transportation''; ``equipment''; ``plans''; ``specifications''; and
``proposal.''
6. Section 1150.200, Bidding Requirements and Conditions
Illinois revised section 1150.200(a)(1) to require the Department
of Transportation to prequalify each bidder as provided in 44 Ill. Adm.
Code 650. In section 1150.200(a)(4), Illinois revised the language to
require the Department to send a written Notice of its action to the
Contractor. Minor word changes were made at sections 1150.200(a)(4)(B),
1150.200(a)(4)(H), and 1150.200(a)(4)(K). At section 1150.200(a)(4)(M),
a recommendation from OSM that the contractor is not eligible for an
AML contract under 30 CFR 874.16 is added to the list of grounds for
contractor suspension.
Illinois revised section 1150.200(a)(5) to read as follows:
In all actions suspending a contractor's eligibility to bid on
reclamation project contracts, the Contractor may protest the
Department's action by submitting to the Director of the Department
a written statement of objection setting forth the facts and
circumstances of the action which are alleged to be legally or
otherwise objectionable. The written statement of objection must be
received by the Director within 14 calendar days of the
objectionable action. The Director shall provide the Contractor with
a hearing in accordance with procedures set forth in 17 Ill. Adm.
Code 2530. Notwithstanding the provisions of Sections 2530.320--
2530.350 concerning initiation of proceedings by the Department, the
Contractor shall initiate the proceedings.
In section 1150.200(b)(1), Illinois revised the language to require
the Department to publish notice to bidders and advertisement for bids
in the Illinois Procurement Bulletin once, no less than 14 days before
the bid opening. Section 1150.200(b)(2) was revised to provide that the
Department of Transportation will publish the Illinois Procurement
Bulletin. Finally, at section 1150.200(b)(3), Illinois made minor
wording changes.
In section 1150.200(c)(1), Illinois removed the existing language
and replaced it with language requiring the Department of
Transportation to furnish a proposal form to prequalified, prospective
bidders, stating the location and description of the contemplated
construction, showing the estimate of the various quantities and kinds
of work to be performed and/or materials to be furnished, and having a
schedule of items for which unit bid prices are invited. The proposal
form also will state the time in which the work must be completed, the
amount of the proposal guaranty, labor requirements, and the date, time
and place of the opening of proposals. Finally, the form will include
Special Provisions and requirements that adapt the Standard
Specifications to AML projects and provide for project specific
conditions and requirements.
Illinois revised section 1150.200(g)(1) to read as follows:
The prospective bidder shall, before submitting a bid, carefully
examine the provisions of the contract. The bidder shall inspect in
detail the site of the proposed work, investigate and become
familiar with all the local conditions affecting the contract and
fully acquaint itself with the detailed requirements of
construction. Submissions of a bid shall be a conclusive assurance
and warranty that the bidder has made these examinations and that
the bidder understands all requirements for the performance of the
work. If his/her bid is accepted, the bidder will be responsible for
all errors in the proposal resulting from his/her failure or neglect
to comply with this subsection (g)(1). The Department will, in no
case, be responsible for any costs, expenses, losses, or change in
anticipated profits resulting from such failure or neglect of the
bidder to make these examinations.
Illinois added a new section 1150.200(g)(2) which prohibits bidders
from taking advantage of any error or omission in the proposal and
advertised contract. If bidders want an explanation or interpretation
of the plans, specifications or any contract documents, they may submit
requests in writing to the Supervisor of Project Management. The
requests must allow sufficient time for the Department to respond in
writing to all prospective bidders before submission of their bids. All
responses to bidder requests will be supplied to all prospective
bidders in the form determined by the Department if the Department
determines that the information would aid competition. Oral
explanations, interpretations, or instructions given before the
submission
[[Page 63635]]
of bids unless at a pre-bid conference will not be binding on the
Department.
Illinois made minor word changes in section 1150.200(h) and
1150.200(i)(1). New section 1150.200(i)(2) was added to require bidders
to submit separate proposals on each individual contract if a
combination bid is submitted on two or more proposals. If separate bids
are not submitted, the Department will not consider the combination
bid. If the bidder wants to submit a combination bid, the bidder must
state the amount of the combination bid for the entire combination in
the place provided in the proposal form. Illinois added new section
1150.200(i)(3) to read as follows:
(3) If a combination bid is submitted on any stipulated
combination, and errors are found to exist in computing the gross
sum bid on any one or more of the individual proposals, corrections
shall be made, by the Department and the amount of the combination
bid shall be corrected so that it will be in the same proportion to
the sum of the corrected gross sum bid as the combination bid
submitted was to the sum bid submitted.
The following provisions shall govern combination bidding:
(A) A combination bid which is submitted for 2 or more proposal
and awarded on that basis shall have the bid prorated against each
proposal in proportion to the bid submitted for each proposal.
(B) Separate contracts shall be executed for each individual
proposal included in the combination.
(C) The completion date for all contracts awarded on a
combination bid shall be the latest completion date designated in
any one or more of the contracts included in the combination, unless
otherwise provided in the contracts. The working days for all
contracts awarded on a combination bid shall be the largest number
of working days designated in any one or more of the contracts
included in the combination, unless otherwise provided in the
contracts.
(D) An extension of time for any one or more contracts awarded
on a combination bid shall automatically extend all contracts
awarded on the combination.
(E) In the event the Contractor fails to complete any one or all
of the contracts on the combination bid by the contract completion
date plus any authorized extension, or the contract working days
plus any authorized extension, the liquidated damages shall be
determined from the schedule of deductions for each day of overrun
in contract time as provided in the contract, based on the
combination bid total, and shall be computed on the combination and
prorated against the 2 or more individual contracts based on the
dollar value of each.
(F) The plans and Special Provisions for each separate contract
shall be construed separately for all requirements, except as
described in subsections (a) through (e) above.
Finally, at section 1150.200(m), Illinois removed language
prohibiting a bidder from resubmitting a withdrawn proposal at the same
letting.
7. Section 1150.300, Award and Execution of Contract
At section 1150.300(a)(2), Illinois revised the language to allow
the Department to reject any or all proposals, to waive technicalities,
or to advertise for new proposals if the Department believes that it
will serve the best interests of the Department.
Illinois revised section 1150.300(b)(1) to require the Department
to award the contract within 45 days after the opening of proposals to
the lowest responsible and qualified bidder. The Department must notify
the successful bidder that his/her bid has been accepted and, subject
to sections 1150.300(b) (2) and (3), he/she will be the Contractor. New
section 1150.300(b)(2) states that the State is not bound by a contract
until the Department executes it. The Department may cancel the award
any time before execution in order to protect the public interest and
integrity of the bidding process or for any reason if, in the judgement
of the Department, the best interest of the Department will be served.
Finally, section 1150.300(b)(3) was revised to allow a bidder to
withdraw his/her bid 45 days after the opening of proposals, or the
time specified on the Notice to Bidders.
Illinois added a new section 1150.300(c), entitled ``Notice of
Contract Award,'' to require the Department to publish each and every
contract that is let or awarded in the next available Illinois
Procurement Bulletin.
Illinois revised section 1150.300(d)(1) require the Department to
return the guaranty checks promptly. Section 1150.300(d)(2) was revised
to allow the two lowest bidders to substitute bid bonds for their
guaranty checks after a period of three working days after the date of
opening proposals has elapsed.
Illinois added new section 1150.300(e), entitled ``Applicant
Violator System'' to read as follows:
(1) Under 30 CFR 874.16, every successful bidder for a federally
funded AML contract must be eligible under 30 CFR 773.15(b)(1) at
the time of contract award to receive a permit or conditional permit
to conduct surface coal mining operations. Bidder eligibility must
be confirmed by the federal Office of Surface Mining, Reclamation
and Enforcement's automated Applicant/Violator System (AVS) for each
contract to be awarded.
(2) At the time the successful bidder is notified by letter of
intent that his/her bid will be accepted, the Department will
provide to the bidder an Ownership/Control (``O/C'') information
package. The bidder shall completely fill out the forms and return
the completed forms to the Department. The Department will forward
the completed forms to OSM at the Lexington, Kentucky AVS office for
data entry and compliance check.
(3) All subcontractors who will receive 10% or more of the total
contract funding will also be required to submit an O/C information
package and be subject to the OSM/AVS compliance check, prior to
receiving the Department's approval of subcontractor.
(4) Any contract inspector, selected through a bidding process,
regardless of the percentage of contract funding, will also be
required to submit an O/C information package and be subject to the
OSM/AVS compliance check.
(5) The Department shall deny a contract and cancel the award
upon OSM's recommendation that the successful bidder is not eligible
for an AML contract. The Department shall deny approval of a
subcontractor upon OSM's recommendation that the subcontractor is
not eligible for an AML contract. The Department shall deny an
inspection contract upon OSM's recommendation that the contract
inspector is not eligible for an AML contract.
(6) Any person denied an AML contract or participation in an AML
funded project, shall appeal the decision and recommendation of OSM
directly to OSM. Appeal should be made to establish eligibility for
future AML projects. The Department will not delay a project pending
appeal. The Department's role in the AVS compliance check process is
ministerial and does not involve exercise of independent judgement
or review of OSM's decision and recommendation. The Department shall
not be responsible for any damages sustained by any person by reason
of OSM's determination as to eligibility for AML contracts.
(7) After a Contractor, subcontractor, or contract inspector has
once submitted an O/C information package and has been entered into
the AVS in connection with an AML project, the Department may, in
connection with subsequent projects, provide dated AVS printouts
reflecting the information submitted and the current AVS
recommendation, along with an AML Contractor O/C Data Certification
form. The Contractor, subcontractor, or contract inspector shall
complete and submit the certification in place of the O/C
information package, in the same manner as provided above.
(8) Any potential AML Contractor, subcontractor or contract
inspector may submit O/C information directly to OSM and the
Lexington AVS Office, to predetermine eligibility for AML contracts.
Illinois removed the existing language at section 1150.300(f) and
replaced it with language requiring the Contractor to furnish a
performance and payment bond with good and sufficient sureties in the
full amount of the contract as the penal sum to the Department. The
surety shall be acceptable to the Department, shall waive notice of any
changes and extensions of time, and shall submit its bond on the form
furnished by the Department.
[[Page 63636]]
8. Section 1150.400, Contracts Involving Expenditures of $30,000.00 or
Less
Illinois revised this section to allow the Department to waive the
prequalification and bidding requirements of Section 1150.300 when the
reclamation project expenditures are $30,000.00 or less.
9. Section 1150.500, Emergency Contracting
In section 1150.500(b)(1), Illinois made minor word changes. This
section requires the Department to maintain a list of prequalified
contractors for the type of construction work encountered in AML
Emergency reclamation projects. Illinois proposes to add language
requiring the Department to include on this list those contractors who
have demonstrated responsibility and competence through past
performance on AML Emergency reclamation projects. Finally, Illinois
removed the word ``prequalified'' from the remaining text in this
section and replaced it with the word ``listed.''
10. Section 1150.700, Applicability
Illinois revised this section to state that this subpart applies to
all architectural, engineering, or land surveying professional services
provided to the Department under a contract. This section does not
apply to those services covered by the Architectural, Engineering, and
Land Surveying Qualifications Based Selections Act [30 ILCS 535] and
related services that may be performed by persons not required to be
licensed under the Illinois Architecture Practice Act of 1989 [225 ILCS
305]; the Professional Engineering Practice Act of 1989 [225 ILCS 325];
the Structural Engineering Licensing Act of 1989 [225 ILCS 340]; or the
Illinois Professional Land Surveyor Act of 1989 [225 ILCS 330].
11. Section 1150.800, Prequalification
Illinois removed the existing language in this section and replaced
it with language requiring the Department of Transportation to
prequalify all architectural, engineering, or land surveying
consultants wanting to provide services to the Department of Natural
Resources relating to the AML program.
12. Section 1150.900, Subcontracting
Illinois removed the existing language in this section and replaced
it with the following:
(a) Professional Services Consultants may subcontract no more
than 50 percent of the project work.
(b) The Professional Services contract shall include the names
and addresses of all subconsultants and the anticipated amount of
money which they will receive pursuant to the contract [30 ILCS 505/
9.04].
(c) If at any time a Professional Services Consultant who had
not intended to utilize the services of a subconsultant, decides to
utilize a subconsultant, the Department and the Consultant shall
file an amendment to the original contract with the Comptroller
stating the names and addresses of all subconsultants and the
anticipated amount of money which they will receive pursuant to the
original contract [30 ILCS 505/9.04].
13. Section 1150.1000, Requests for Proposals
In this section, Illinois removed the existing language and
replaced it with language requiring a selection committee, consisting
of the Director of the Office of Mines and Mineral, the Manager of the
AML Reclamation Division, and the Supervisor of the Project Management
Section, or their designees, to select firms to provide architectural,
engineering, and land surveying services on AML reclamation projects.
When evaluating the proposals, the committee must take into
consideration the following qualification factors: the ability of
professional personnel; the past record and experience on AML projects
and projects with similar professional disciplinary requirements; the
firm's performance data on file; the willingness of the firm to meet
time requirements; the location of the Consultant's office in relation
to the project site and the Department's AML office that will be
managing the project; the workload of the consultant; and any other
qualifications based on factors that the Department may determine in
writing are applicable on a project specific basis. The committee must
also assign knowledgeable technical staff to provide preliminary
technical review, as necessary and appropriate, to assure that all
project considerations are taken into account. Formal and informal
submissions of verbal and written estimates of costs or proposals in
terms of dollars, hours required, percentage of construction cost, or
any other measure of compensation may not be solicited before the
committee selects a firm for negotiation. Finally, the committee can
conduct discussions and require public presentations by the
Consultants, deemed to be the most qualified, regarding their
qualifications, approach to the project, and ability to furnish the
required services.
14. Section 1150.1200, Selection Procedure
Illinois removed the existing language in this section, and
replaced it with guidelines for selecting a consultant to provide
architectural, engineering, and land surveying services on AML
reclamation projects. Section 1150.1200(a) requires the committee to
select, on the basis of evaluations, discussions and any presentations,
at least three qualified Consultants to provide services for the
project. The Consultants must be ranked in order of qualifications, and
the committee must contact the Consultant ranked most preferred to
negotiate a contract for fair and reasonable compensation. Section
1150.1200(b) provides that if less than three Consultants submit
letters of interest and are determined to be qualified, the Department
may proceed to contract negotiation as described in section
1150.1200(a). Section 1150.1200(c) states that the decision of the
Department shall be final and binding. Finally, section 1150.1200(d)
requires the Department to publish each and every contract awarded by
the Department in the next available Illinois Procurement Bulletin.
15. Section 1150.1300, Contract Negotiations
The existing language in this section was removed and replaced with
the following:
(a) The Department shall prepare a written description of the
scope of the proposed services, entitled ``Scope of Work,'' to be
used as a basis for negotiations and shall negotiate a contract with
the highest ranked qualified Consultant at a compensation that the
Department determines in writing to be fair and reasonable. In
making this decision, the Department shall take into account the
estimated value, scope, complexity, and professional nature of the
services to be rendered.
(b) If the Department is unable to negotiate a satisfactory
contract with the Consultant that is most preferred, negotiations
with that Consultant will be terminated. The Department shall then
begin negotiations with the next ranked Consultant. If the
Department is unable to negotiate a satisfactory contract with that
Consultant, negotiations with that Consultant shall be terminated.
The Department shall then begin negotiations with the next ranked
Consultant.
(c) If the Department is unable to negotiate a satisfactory
contract with any of the selected Consultants, the Department shall
re-evaluate the architectural, engineering, or land surveying
services requested, including the estimated value, scope,
complexity, and fee requirements. The Department shall then compile
a second list of not less than three qualified Consultants and
proceed in accordance with the provisions of the Subpart.
[[Page 63637]]
(d) A Consultant negotiating a contract with the Department
shall negotiate any approved subcontracts for architectural,
engineering, and land surveying services at compensation that the
Consultant determines in writing to be fair and reasonable based
upon a written description of the proposed services of the
subconsultant.
16. Section 1150.1325, Exemptions
Illinois added this new section to provide that the provisions of
Sections 1150.1000, 1150.1100, and 1150.1200 of this Part do not apply
to architectural, engineering, and land surveying contracts of less
than $25,000. The provisions also do not apply to the procurement of
these services by the Department when the Department determines in
writing that it is in the best interests of the State to proceed with
the immediate selection of a firm, or in emergencies when immediate
services are necessary to protect the public health, safety and general
welfare from the adverse effects of mining.
17. Section 1150.1350, Firm Performance Evaluations
Illinois added this new section to require the Department to
evaluate the performance of each consultant upon completion of a
contract. The evaluation must be made available to the Consultant when
he/she requests it. The Consultant may respond in writing to the
evaluation, and the evaluation and response must be retained solely by
the State. The evaluation and response cannot be made available to any
other person or firm and is exempt from disclosure under the Freedom of
Information Act [54 ILCS 140].
IV. Public Comment Procedures
Under the provisions of 30 CFR 884.15(a), we are requesting
comments on whether the amendment satisfies the applicable State
reclamation plan approval criteria of 30 CFR 884.14. If we approve the
amendment, it will become part of the Illinois plan.
Written Comments
Your written comments should be specific and pertain only to the
issues proposed in this rulemaking. You should explain the reason for
any recommended change. In the final rulemaking, we will not
necessarily consider or include in the Administrative Record any
comments received after the time indicated under DATES or at locations
other than the Indianapolis Field Office.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on
December 1, 1998. We will arrange the location and time of the hearing
with those persons requesting the hearing. If you are disabled and need
special accommodation to attend a public hearing, contact the
individual listed under FOR FURTHER INFORMATION CONTACT. The hearing
will not be held if no one requests an opportunity to speak at the
public hearing.
You should file a written statement at the time you request the
hearing. This will allow us 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. If
you are in the audience and have not been scheduled to speak and wish
to do so, you will be allowed to speak after those who have been
scheduled. We will end the hearing after all persons scheduled to speak
and persons present in the audience who wish to speak have spoken.
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. If you wish
to meet with us to discuss the amendment, request a meeting by
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All
such meetings are open to the public and, if possible, we will post
notices of meetings at the locations listed under ADDRESSES. We also
make a written summary of each meeting a part of the Administrative
Record.
V. 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 and Tribal abandoned mine land reclamation plans and revisions
since each plan is drafted and promulgated by a specific State or
Tribe, not by OSM. Decisions on proposed abandoned mine land
reclamation plans and revisions submitted by a State or Tribe are based
on a determination of whether the submittal meets the requirements of
Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Part 884.
National Environmental Policy Act
This rule does not require an environmental impact statement since
agency decisions on proposed State and Tribal abandoned mine land
reclamation plans and revisions are categorically excluded from
compliance with the National Environmental Policy Act (42 U.S.C. 4332)
by the Manual of the Department of the Interior (516 DM 6, appendix 8,
paragraph 8.4B(29)).
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 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. In making the
determination as to whether this rule would have a significant economic
impact, the Department relied upon the data and assumptions in the
analyses for the corresponding Federal regulations.
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: November 6, 1998.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 98-30545 Filed 11-13-98; 8:45 am]
BILLING CODE 4310-05-P
