[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Pages 62229-62233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29509]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 913
[SPATS No. IL-089-FOR]
Illinois Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; reopening and extension of public comment period
on proposed amendment.
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SUMMARY: OSM is announcing receipt of revisions and additional
explanatory information pertaining to a previously proposed amendment
to the Illinois
[[Page 62230]]
regulatory program (hereinafter referred to as the ``Illinois
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The revisions and additional explanatory information for
Illinois' proposed regulations pertain to termination of jurisdiction,
permit fees, definitions, 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
recently revised Federal regulations, provide additional safeguards,
clarify ambiguities, and improve operational efficiency.
DATES: Written comments must be received by 4:00 p.m., e.s.t., January
4, 1996. If requested, a public hearing on the proposed amendment will
be held on January 2, 1996. Requests to speak at the hearing must be
received by 4:00 p.m., e.s.t., on December 20, 1995.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Roger W. Calhoun, Director, Indianapolis
Field Office at the address listed below.
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 Indianapolis Field Office.
Roger W. Calhoun, Director Indianapolis Field Office, Office of Surface
Mining Reclamation and Enforcement, Minton-Capehart Federal Building,
575 North Pennsylvania Street, Room 301, Indianapolis, Indiana, 46204,
Telephone: (317) 226-6700.
Illinois Department of Natural Resources, Office of Mines and Minerals,
524 South Second Street, Springfield, Illinois, 62701-1787, Telephone:
(217) 782-4970.
FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director
Indianapolis Field Office, Telephone: (317) 226-6700.
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, 913.17.
II. Discussion of the Proposed Amendment
By letter dated February 3, 1995 (Administrative Record No. IL-
1615), Illinois submitted a proposed amendment to its program pursuant
to SMCRA. Illinois submitted the proposed amendment in response to an
August 5, 1993, letter (Administrative Record No. IL-1400) that OSM
sent to Illinois in accordance with 30 CFR 732.17(c), in response to
the required program amendments at 30 CFR 913.16(s), (t), and (u), and
at its won initiative. The provisions of Title 62 of the Illinois
Administrative Code (IAC) that Illinois proposes to amend are 62 IAC
1700, General; 62 IAC 1701.Appendix A, Definitions; 62 IAC 1761.11,
Areas where mining is prohibited or limited, 62 IAC 1772, Requirements
for coal exploration; 62 IAC 1773, Requirements for permits and permit
processing; 62 IAC 1774.13, Permit revisions; 62 IAC 1778.15, Right of
entry information; 62 IAC 1779, Surface mining permit applications--
minimum requirements for information on environmental resources; 62 IAC
1780.23, Reclamation plan: per-mining and post-mining information; 62
IAC 1783, Underground mining permit applications--minimum requirements
for information on environmental resources; 62 IAC 1784.15, Reclamation
plan: pre-mining and post-mining information; 62 IAC 1785, Requirements
for permits for special categories of mining; 62 IAC 1795, Small
operator assistance; 62 IAC 1800, Bonding and insurance requirements
for surface coal mining and reclamation operations; 62 IAC 1816,
Permanent program performance standards--surface mining activities; 62
IAC 1817, Permanent program performance standards--underground mining
activities; 62 IAC 1825.14, High capability lands: soil replacement; 62
IAC 1840, Department inspections; 62 IAC 1843, State enforcement; 62
IAC 1845.12, When penalty will be assessed; 62 IAC 1847, Administrative
and judicial review; 62 IAC 1845.5, Notice of hearing; and 62 IAC 1850,
Training, examination and certification of blasters.
OSM announced receipt of the proposed amendment in the February 27,
1995, Federal Register (60 FR 10522) and invited public comment on its
adequacy. The public comment period ended March 29, 1995.
During its review of the amendment, OSM identified concerns
relating to 62 IAC 1701. Appendix A, definition of wetlands; 62 IAC
1773.20, general procedures for improvidently issued permits; 62 IAC
1773.23, review of ownership or control and violation information; 62
IAC 1773.24, procedures for challenging ownership or control shown in
the Applicant Violator System; 62 IAC 1785.17, prime farmlands; 62 IAC
1816/1817.13 and 1816/1817.15, casing and sealing of drilled holes; 62
IAC 1816/1817.116(a)(3)(F) and 62 IAC 1816.116(a)(4)(A)(ii),
revegetation standards for small isolated areas; 62 IAC
1816.116(a)(4)(D), revegetation standards for hay production; 62 IAC
1816/1817.116(a)(5), wetlands revegetation; 62 IAC 1816/1817.116(c),
revegetation reference areas; and 62 IAC 1816.Appendix A, permit
specifics yield standards. OSM notified Illinois of the concerns by
letters dated April 28 and August 3, 1995 (Administrative Record Nos.
IL-1649 and IL-1660, respectively). Illinois responded in a letter
dated November 1, 1995 (Administrative Record No. IL-1663), by
submitting a revised amendment and additional explanatory information.
Throughout the revised amendment, Illinois proposes to change its
references of the ``Illinois Department of Mines and Minerals'' to the
``Illinois Department of Natural Resources, Office of Mines and
Minerals'' in order to reflect a reorganization change which was
effective July 1, 1995, and to change its references of the ``Soil
Conservation Service'' and ``S.C.S.'' to the ``Natural Resources
Conservation Service.'' Illinois, also, corrected typographical errors,
revised cross-references, and revised paragraph notations to reflect
organizational changes within the amended regulations. In addition,
Illinois proposes revisions to and/or additional explanatory
information for the following specific regulations.
A. 62 IAC 1701.Appendix A Definition of Wetlands
In its letter dated April 28, 1995 (Administrative Record No.
1649), OSM requested Illinois to provide a statement which explains the
meaning of the last sentence of the ``wetlands'' definition [Areas
which are restored or created as
[[Page 62231]]
the result of mitigation or planned construction projects and which
function as a wetland are included within this definition even when all
three wetland parameters are not present]. At the May 31, 1995, meeting
(Administrative Record No. 1654), Illinois stated that it was using the
definition of wetlands contained in the Illinois Interagency Wetland
Policy Act of 1989 (20 ILCS 830/1-6). Illinois explained that the
definition applies to created wetlands which are functioning as a
wetland ``* * * even when all three wetland parameters are not
present.'' Illinois further explained that generally the ``hydric''
soil profile may not be fully developed in an artificial wetland.
Illinois submitted a copy of the ``Interagency Wetlands Policy Act
of 1989'' to OSM (Administrative Record No. 1650A).
B. 62 IAC 1773.20 Improvidently Issued Permits: General Procedures
At 62 IAC 1773.20(c)(4), Illinois proposes to change the word
``rescind'' in the sentence ``If the Department decides to rescind the
permit, it shall give at least 30 days written notice to the
permittee'' to the word ``suspend.''
C. 62 IAC 1773.23 Review of Ownership or Control and Violation
Information
At 62 IAC 1773.23(a), Illinois proposes to change its regulation
reference from ``1773.22(b)'' to ``1773.22.''
At 62 IAC 1773.23(b)(2)(B), Illinois proposes to change its
regulation reference from ``1773.15(b)'' to ``1773.15(b)(1).''
D. 62 IAC 1773.24 Procedures for Challenging Ownership or Control
Links Shown in the Applicant Violator System
At 62 IAC 1773.34(a)(1), Illinois proposes to change the regulation
reference from ``subsections (b) through (d) below and Section
1773,25'' to ``30 CFR 773.24(b) through (d) and 30 CFR 773.25.''
At 62 IAC 1773.24(a)(2), Illinois proposes to change the regulation
reference from ``subsections (b) through (d)'' to ``30 CFR 773.24 (b)
through (d).''
At 62 IAC 1773.24(a)(3), Illinois proposes to replace the language
``the State program for the State that issued the violation notice''
with subsections (b) through (d) below and Section 1 773.25.''
At 62 IAC 1773.24 (b) through (d), Illinois proposes to replace the
originally proposed procedures for those persons eligible under
subsections (a)(1) or (a)(2) to challenge the status of an ownership or
control link shown in the AVS or the status of federal violations with
procedures for those persons eligible under subsection (a)(3) to
challenge the status of state violations. The revised regulations read
as follows:
(b) Any applicant or other person who wishes to challenge an
ownership or control link shown in AVS or the status of a state
violation, and who is eligible to do so under the provisions of
subsection (a)(3) above, shall submit a written explanation of the
basis for the challenge, along with any relevant evidentiary materials
and supporting documents.
(c) The Department shall review any information submitted under
subsection (b) above and shall make a written decision whether or not
the ownership or control link has been shown to be erroneous or has
been rebutted and/or whether the violation covered by the notice
remains outstanding, has been corrected, is in the process of being
corrected, or is the subject of a good faith appeal within the meaning
of Section 1773.15(b)(1).
(d) Notice to applicant.
(1) If, as a result of the decision reached under subsection (c)
above, the Department determines that the ownership or control link has
been shown to be erroneous or has been rebutted and/or that the
violation covered by the notice has been corrected, is in the process
of being corrected, or is the subject of a good faith appeal, the
Department shall so notify the applicant or other person and, if an
application is pending, OSM, and shall correct the information in AVS.
(2) If, as a result of the decision reached under subsection (c)
above, the Department determines that the ownership or control link has
not been shown to be erroneous and has not been rebutted and that the
violation covered by the notice remains outstanding, the Department
shall so notify the applicant or other person and, if an application is
pending, OSM, and shall update the information is AVS, if necessary.
(3) The Department shall serve a copy of the decision on the
applicant or other person by certified mail, or by any means consistent
with the rules governing service of a summons and complaint under Rule
4 of the Federal Rules of Civil Procedure. Service shall be complete
upon tender of the notice or of the mail and shall not be deemed
incomplete because of a refusal to accept.
(4) The applicant or other person may appeal the Department's
decision within 30 days of service of the decision in accordance with
62 Ill. Adm. Code 1847.3. The Department's decision shall remain in
effect during the pendency of the appeal, unless temporary relief is
granted in accordance with 62 Ill. Adm. Code 1847.3(k).
E. 62 IAC 1785.17 Prime Farmlands
At 62 IAC 1785.17(d)(1), Illinois proposes to reinstate the
sentence ``The State recognizes that the permit cannot be issued
without the required consultation with USDA.''
F. 62 IAC 1816 (Surface Mining Activities) and 1817 (Underground
Mining Activities) Permanent Program Performance Standards
Since most of the surface mining and underground mining regulations
in these parts are identical, the revisions are being combined for
discussion purposes, unless otherwise noted.
1. 62 IAC 1816.13 and 1816.15 Casing and Sealing of Drilled Holes and
62 IAC 1817.13 and 1817.15 Casing and Sealing or Exposed Underground
Openings
Illinois proposes to withdraw its originally proposed requirements
that exposed underground openings be backfilled.
2. IAC 1816.116(a)(2)(F)/1817.116(a)(2)(F) Revegetation Standards for
Success: Augmentation
a. At 62 IAC 1816/1817.116(a)(2)(F)(i), Illinois proposes to
reinstate the existing language from 62 IAC 1816/1817.116(a)(2)(F)(ii)
and add some clarification language. This revised provision reads as
follows:
The five (5) year period of responsibility shall not recommence
after deep tillage on areas where the operator has met the
revegetation success standards of subsection (a)(3)(E) below.
b. Originally proposed 62 IAC 1816/1817.116(a)(2)(F) is
redesignated 62 IAC 1816/1817.116(a)(2)(F)(ii), and Illinois proposes
to add the follow exception to its provision that considers the
application of chemical treatments or fertilizers to wetland areas as
augmentation.
Except that wetlands managed as wildlife food plot areas using
agricultural techniques shall not be considered augmented when
normal husbandry practices, such as routine liming and
fertilization, are used.
3. 62 IAC 1816.116(a)(3)(F)/1817.116(a)(3)(F) Revegetation Standards
for Success: Non-contiguous Areas
If response to issues raised in OSM's letters dated April 28 and
August 3, 1995 (Administrative Record Nos. IL-1649 and IL-1660,
respectively), Illinois proposes to revise 62 IAC 1816/
1817.116(a)(3)(F) to read as follows.
[[Page 62232]]
Non-contiguous areas less than or equal to four acres which were
disturbed from activities such as, but not limited to, signs,
boreholes, power poles, stockpiles and substations shall be
considered successfully revegetated if the operator can demonstrate
that the soil disturbance was minor, i.e., the majority of the
subsoil remains in place, the soil has been returned to its original
capability and the area is supporting its approved post-mining land
use at the end of the responsibility period.
Also, Illinois' amendment transmittal letter dated November 1,
1995, contains a justification statement with an attached map
(Administrative Record No. IL-1663). The map, which is marked as
Exhibit #4, shows an example of several small substations which served
an underground mine and which had minor disturbances and which were
returned to cropland use. In its statement, Illinois references In Re:
Permanent Surface Mining Regulation Litigation (Civil Action No. 79-
1144, May 16, 1980) as justification for the proposed regulation.
Illinois also attached a memorandum dated September 1, 1995, from the
Illinois Department of Agriculture which concurred with the four acre
threshold relative to the testing of small isolated areas for
revegetation success.
4. 26 IAC 1816.116(a)(4)(A)(ii) Revegetation Standards for Success:
Proof of Productivity for Non-Contiguous Areas
Illinois proposes to revise its proposed provision at 62 IAC
1816.116(a)(4)(A)(ii) which would allow the productivity results of a
larger field to represent small isolated areas to read as follows.
The Department may approve a field to represent non-contiguous
areas less than or equal to four acres of the same capability if it
determines that the field is representative of reclamation of such
areas. These areas shall be managed and vegetated in the same manner
as the representative field.
In its letter dated November 1, 1995 (Administrative Record No. IL-
1663), Illinois stated that ``* * * These areas will be vegetated and
managed in the same manner as their associated larger field under
approved and proper management practices.''
5. 62 IAC 1816.116(a)(4)(D) Revegetation Standards for Hay Production
At 62 IAC 1816.116(a)(4)(D), Illinois proposes to withdraw the
following previously proposed language.
Prior successful hay production shall not be affected by deep
tillage for crop production.
6. 62 IAC 1816.116(a)(5)/1817.116(a)(5) Wetland Revegetation
In its letter dated April 28, 1995 (Administrative Record No.
1649), OSM requested Illinois to provide a statement and technical
support for 62 IAC 1816/1817.116(a)(5) which justifies why a minimum
areal coverage of 30 percent for wetlands will be consistent with the
revegetation standards for ground cover for areas to be developed for
fish and wildlife habitat at 30 CFR 816/817.116(a)(3)(iii).
At the May 31, 1995, meeting (Administrative Record No. 1654),
Illinois described a U.S. Fish and Wildlife Service, Biological
Services Program, publication on the qualitative values of wetlands
with various degrees of emergent vegetation at the 20 to 70 percent
levels. The study ranked 70 percent cover as having the lowest value,
50 percent as having the highest value, and 30 percent as having a
middle value. Illinois stated its belief that attainment of the 30
percent level of areal vegetation cover is adequate to establish a
valuable wetland which is likely to improve with time, justifying its
use as a revegetation success standard.
Illinois submitted the publication, which was entitled
``Classification of Wetlands and Deepwater Habitats of the United
States,'' U.S. Department of the Interior, Fish and Wildlife Service,
Biological Services Program, FWS/OBS-79/31, December 1979, to OSM on
June 8, 1995 (Administrative Record No. 1653). Illinois, also,
submitted two additional reference documents in support of its wetlands
revegetation standards: (1) Vol. II of ``Wetland Creation and
Restoration--The Status of the Science,'' U.S. Environmental Protection
Agency, Environmental Research Laboratory, EPA 600/3-89/038b, October
1989, (Administrative Record No. IL-1650) and (2) Journal of Wildlife
Management, 1981, University of Michigan Study, Dabbling Duck and
Aquatic Macroinvertebrate Responses to Manipulated Wetland Habitat, J.
Wildl. Manage.45(1):1981 (Administrative Record No. IL-1650B).
7. 62 IAC 1816.116(c) and 1817.116(c) Use of Reference Areas for
Determining Revegetation
Illinois proposes to withdraw its proposed regulations at 62 IAC
1816.116(c) and 1817.116(c) concerning the use of a reference area in
lieu of the Agricultural Lands Productivity Formula Target Yields to
determine the success of revegetation for cropland and hayland.
8. 62 IAC 1816.Appendix A Agricultural Land Productivity Formula
a. Under the heading ``Permit Specifics--Yield Standard'', Illinois
proposes to modify sections (a) and (b) to clarify that target yields
are calculated by ``pit'' rather than ``permit.'' Therefore, Illinois
proposes to change the words ``permit,'' ``mine permit area,'' and
``permit area'' to ``pit.''
Illinois, also, submitted examples for the justification of
consolidating yield targets by pit rather than permit in its November
1, 1995, submittal (Administrative Record No. IL-1663). Exhibit #1 is a
composite map identifying 18 pits which are included in ten permits
whose reclamation plans are developed on a pit basis to balance prime
farmland, and high capability land liability. Exhibit #2 is a printout
of the base yield targets from a mine with a pit which was originally
contained under three separate contiguous permits. Later, all three
permits were repermitted under one large permit. As a result, the yield
targets were consolidated due to the repermitting. The yield
differences between permits and the mean varied approximately 5
percent. Exhibit #3 is a printout of the base yield targets from a mine
with a pit which was originally contained under two separate contiguous
permits. These permits were not consolidated under one permit; however,
as the small acreage permit represented just the last few years of
mining and included the final cut impoundment, some of the cropland
liability was located into the older permit. In other words, the actual
soils and liability accrued were moving across permit lines. A
composite yield target based on a pit concept reflects the actual way
the soil was handled.
b. Illinois proposes to change previously proposed section (e) to
(c) and proposes to revise the language as follows:
After mining operations have ceased, the Department shall
recalculate the yield standards for the pit based solely on the
soils which were disturbed. Recalculated targets shall be applicable
to all areas tested for productivity subsequent to the
recalculation. Approved significant revisions after permanent
cessation of mining shall cause the targets to be recalculated and
applied to productivity fields tested after the recalculation.
c. Illinois proposes to withdraw previously proposed sections (c),
(d), and (f).
G. 62 IAC 1848.5 Notice of Hearing
At 62 IAC 1848.5(f), Illinois proposes to withdraw the following
previously proposed sentence.
[[Page 62233]]
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.
III. Public Comment Procedures
OSM is reopening the comment period on the proposed Illinois
program amendment to provide the public an opportunity to reconsider
the adequacy of the proposed amendment in light of the additional
materials submitted. 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 Indianapolis 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 4:00 p.m.,
e.s.t., on December 20, 1995. 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.
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.
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 proposed 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: November 20, 1995.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 95-29509 Filed 12-4-95; 8:45 am]
BILLING CODE 4310-05-M
