[Federal Register Volume 66, Number 225 (Wednesday, November 21, 2001)]
[Rules and Regulations]
[Pages 58371-58375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29028]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 913
[SPATS No. IL-100-FOR]
Illinois Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving an amendment to the Illinois regulatory program (Illinois
program) under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). Illinois proposed revisions to and additions of
statutory provisions concerning lands eligible for remining, the
Illinois Interagency Committee on Surface Mining Control and
[[Page 58372]]
Reclamation, lands unsuitable petitions, and rulemaking procedures.
Illinois intends to revise its program to be consistent with SMCRA and
to clarify ambiguities.
EFFECTIVE DATE: November 21, 2001.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,
Indianapolis Field Office, Office of Surface Mining, Minton-Capehart
Federal Building, 575 North Pennsylvania Street, Room 301,
Indianapolis, Indiana 46204-1521. Telephone: (317) 226-6700. Internet:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Illinois Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Illinois Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its program includes, among other things, ``* * * a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of this criteria, the Secretary of the Interior conditionally
approved the Illinois program on June 1, 1982. You can find background
information on the Illinois program, including the Secretary's
findings, the disposition of comments, and the conditions of approval
in the June 1, 1982, Federal Register (47 FR 23883). You can find later
actions concerning the Illinois program at 30 CFR 913.15, 913.16, and
913.17.
II. Submission of the Amendment
By letter dated June 28, 2001 (Administrative Record No. IL-5068),
the Illinois Department of Natural Resources (Department) sent us an
amendment to its program under SMCRA and the Federal regulations at 30
CFR 732.17(b). The proposed amendment consists of changes made to the
Illinois Surface Coal Mining Land Conservation and Reclamation Act
(State Act) at 225 Illinois Compiled Statutes (ILCS) 720. The statutory
changes were enacted through Public Act 90-0490 and became effective on
August 17, 1997. Illinois sent the amendment at its own initiative.
We announced receipt of the amendment in the August 15, 2001,
Federal Register (66 FR 42813). In the same document, we opened the
public comment period and provided an opportunity for a public hearing
or meeting on the adequacy of the amendment. The public comment period
closed on September 14, 2001. We did not receive any public comments.
Because no one requested a public hearing or meeting, we did not hold
one.
III. Director's Findings
Following, under SMCRA and the Federal regulations at 30 CFR 732.15
and 732.17, are the Director's findings concerning the amendment to the
Illinois program.
Any revisions that we do not discuss below concern minor wording
changes, or revised cross-references and paragraph notations to reflect
organizational changes resulting from this amendment.
A. 225 ILCS 720/1.03 Definitions
Public Act 90-0490 amended subsection (a) by adding the following
definition of ``lands eligible for remining'':
(9-a) ``Lands eligible for remining'' means those lands that would
otherwise be eligible for expenditures under the Abandoned Mined
Lands and Water Reclamation Act.
On October 24, 1992, the Energy Policy Act of 1992 amended SMCRA by
adding a definition for the term ``lands eligible for remining'' at
section 701(34). The Illinois definition of ``lands eligible for
remining'' is the same as the Federal definition at section 701(34) of
SMCRA with one exception. The Federal definition limits lands eligible
for remining to those that would be eligible for expenditures under
section 404 or section 402(g)(4) of SMCRA. Although the Illinois
Abandoned Mined Lands and Water Reclamation Act contains counterparts
to both section 404 and section 402(g)(4) of SMCRA, the proposed
definition does not limit eligibility to those counterparts. But,
Illinois' implementing regulatory definition of ``lands eligible for
remining'' at 62 Illinois Administrative Code (IAC) 1701.5, Appendix A,
does contain the Federal limitation. So, we find that Illinois'
definition at 225 ILCS 720/1.03(a)(9-a), as implemented by its
regulatory definition at 62 IAC 1701.5, Appendix A, is no less
stringent than section 701(34) of SMCRA.
B. 225 ILCS 720/1.04 Advisory Council on Reclamation
1. Public Act 90-0490 revised 225 ILCS 720/1.04(a) by adding the
language ``or his or her designee'' at the end of the first sentence.
The revised sentence reads as follows:
(a) There is created the Surface Mining Advisory Council to
consist of 9 members, plus the Director or his or her designee.
This is a nonsubstantive change that allows the Director of the
Department of Natural Resources to designate a person to serve as a
member of the Advisory Council in his or her place. Because this change
to the previously approved statute at 225 ILCS 720/1.04(a) is
nonsubstantive, we find that it will not make the Illinois State Act
less stringent than SMCRA.
2. Public Act 90-0490 revised the first sentence of 225 ILCS 720/
1.04(c) by adding the language ``Office of Mines and Minerals within
the.'' The revised sentence reads as follows:
(c) The Council shall act solely as an advisory body to the
Director and to the Land Reclamation Division of the Office of Mines
and Minerals within the Department.
This revision clarifies that the Land Reclamation Division is a
division of the Office of Mines and Minerals within the Illinois
Department of Natural Resources. Because the change to the previously
approved statute at 225 ILCS 720/1.04(c) is for clarification purposes
only, we find that it will not make the Illinois State Act less
stringent than SMCRA.
C. 225 ILCS 720/1.05 Interagency Committee
Public Act 90-0490 amended 225 ILCS 720/1.05 by adding a provision
that abolished the Interagency Committee on Surface Mining Control and
Reclamation (Interagency Committee). The provision reads as follows:
The Interagency Committee on Surface Mining Control and
Reclamation shall be abolished on June 30, 1997. Beginning July 1,
1997, all programmatic functions formerly performed by the
Interagency Committee on Surface Mining Control and Reclamation
shall be performed by the Office of Mines and Minerals within the
Department of Natural Resources, except as otherwise provided by
Section 9.04 of this Act.
The Interagency Committee was originally created to review permit
applications and provide comments to the Department on protection of
the hydrologic system, water pollution control, the reclamation plan,
soil handling techniques, dams and impoundments, and postmining land
use. These programmatic functions are now performed by the Office of
Mines and Minerals. We find that the abolishment of the Interagency
Committee will not make the Illinois
[[Page 58373]]
program less stringent than SMCRA or less effective than the Federal
regulations because the Office of Mines and Minerals has increased its
technical expertise in all areas needed to perform these programmatic
functions in-house. Also, under 225 ILCS 720/9.04, the Department may
delegate responsibilities, other than final action on permits, to other
State agencies with the authority and technical expertise to carry out
such responsibilities if necessary.
D. 225 ILCS 720/2.08 Standards for Approval of Permits and Revisions
Public Act 90-0490 added 225 ILCS 720/2.08(e) concerning lands
eligible for remining. This new subsection reads as follows:
(e) After the effective date of this amendatory Act of 1997, the
prohibition of subsection (d) shall not apply to a permit
application due to any violation resulting from an unanticipated
event or condition at a surface coal mining operation on lands
eligible for remining under a permit held by the person making such
application. As used in this subsection:
(1) ``unanticipated event or condition'' means an event or
condition encountered in a remining operation that was not
contemplated in the applicable surface coal mining and reclamation
permit; and
(2) ``violation'' has the same meaning as such term has under
subsection (d).
On October 24, 1992, the Energy Policy Act of 1992 amended SMCRA by
adding sections 510(e) and 701(33) that contain substantively the same
requirements for lands eligible for remining with one exception.
Section 510(e) provides that its authority terminates on September 30,
2004, and Illinois' statute at 225 ILCS 720/2.08(e) does not include
this termination clause. However, we are approving 225 ILCS 720/2.08(e)
because Illinois can provide this termination clause in its
implementing regulations. To date, Illinois has not developed
regulations to implement this statute. For any implementing regulations
that are developed in the future, we will require Illinois to include a
clause that terminates their authority on September 30, 2004. We
notified Illinois of this requirement in our letter dated August 22,
2001 (Administrative Record No. IL-5072).
E. 225 ILCS 720/6.07 Forfeiture
Public Act 90-0490 added a new subsection (f) concerning lands
eligible for remining. This new subsection reads as follows:
(f) In the event the bond or deposit for a surface coal mining
operation on lands eligible for remining is forfeited, funds
appropriated for expenditure under the Abandoned Mined Lands and
Water Reclamation Act may be used if the amount of the bond or
deposit is not sufficient to provide for adequate reclamation or
abatement.
On October 24, 1992, the Energy Policy Act of 1992 amended SMCRA by
revising section 404 to add a substantively identical requirement for
lands eligible for remining with one exception. Illinois' statute at
225 ILCS 720/6.07(f) does not contain an exception clause for emergency
restoration, reclamation, abatement, control, or prevention of adverse
effects of coal mining practices. The counterpart provision in section
404 of SMCRA provides that ``except that if conditions warrant the
Secretary shall immediately exercise his authority under section 410.''
However, Illinois' implementing abandoned mine land plan regulation at
62 IAC 2501.10(h) includes a counterpart to the Federal exception
clause. So, we find that Illinois' statute at 225 ILCS 720/6.07(f), as
implemented by its regulation at 62 IAC 2501.10(h), is no less
stringent than the same provision in section 404 of SMCRA.
F. 225 ILCS 720/6.08 Release of Bonds
Public Act 90-0490 added new subsection (i) concerning lands
eligible for remining. This new subsection reads as follows:
(i) Surface coal mining operations on lands eligible for
remining shall not affect the eligibility of those lands for
reclamation and restoration under the Abandoned Mined Lands and
Water Reclamation Act after the release of the bond or deposit for
any such operation under this Section.
On October 24, 1992, the Energy Policy Act of 1992 amended SMCRA by
revising section 404 to add a substantively identical requirement for
lands eligible for remining. Therefore, we find that 225 ILCS 720/
6.08(i) is no less stringent than the same provision in section 404 of
SMCRA.
G. 225 ILCS 720/7.03 Procedure for Designation
Public Act 90-0490 amended subsection (b) by adding the language
``unless the petition is rejected by the Department as incomplete,
frivolous, or submitted by a person lacking an interest which is or may
be adversely affected by surface coal mining operations'' to the end of
the subsection. The revised subsection reads as follows:
(b) Immediately after a petition under this Section is received,
the Department shall prepare a land report in accordance with
Section 7.04, unless the petition is rejected by the Department as
incomplete, frivolous, or submitted by a person lacking an interest
which is or may be adversely affected by surface coal mining
operations.
We find that the language added at 225 ILCS 720/7.03(b) is
consistent with the requirements of Illinois' approved implementing
regulation at 62 IAC 1764.15(a)(3) and the counterpart Federal
regulation at 30 CFR 764.15(a)(3). The State regulation and the Federal
regulation require that a petition be returned to the petitioner if the
regulatory authority determines that the petition is incomplete,
frivolous, or that the petitioner is not a person having an interest
which is or may be adversely affected. We also find that the
requirements of 225 ILCS 720/7.03(b) are no less stringent than the
requirements of section 522 of SMCRA for designating areas as
unsuitable for surface coal mining.
H. 225 ILCS 720/7.04 Land Report
Public Act 90-0490 amended the third sentence of subsection (a) to
clarify that each Land Report must contain a detailed statement on the
potential coal resources of the area by adding the word ``coal''
between the words ``potential'' and ``resources.'' It also amended the
last sentence of subsection (a) by clarifying that petitions to have an
area designated as unsuitable for surface coal mining operations are
filed under 225 ILCS 720/7.03, Procedure for Designation.
The counterpart Federal statute at section 522(d) of SMCRA
requires, among other things, that the regulatory authority prepare a
detailed statement on the potential coal resources of the area prior to
designating any land areas as unsuitable for surface coal mining
operations. Because the changes to 225 ILCS 720/704(a) only clarify
Illinois' previously approved statute, we find that it remains no less
stringent than section 522(d) of SMCRA.
I. 225 ILCS 720/9.01 Rules
Public Act 90-0490 amended Section 9.01 by deleting existing
subsections (c) through (g) and the first sentence of subsection (h).
The balance of subsection (h) was redesignated as subsection (c) and
subsection (i) was redesignated as subsection (d). Existing subsections
(c) and (d) contain procedures for public notice of and comment on a
rule-making proceeding. Existing subsections (e) through (g) contain
agency procedures for adoption of rules. The first sentence of existing
subsection (h) contains information on when an adopted rule is
effective.
We find that the deletion of 225 ILCS 720/9.01(c) through (g) and
the first sentence of subsection (h) is appropriate because the
provisions were either
[[Page 58374]]
inconsistent with or duplicative of the rulemaking procedures in the
Illinois Administrative Act at 5 ILCS 100/5-40. Existing subsection
(i), which was redesignated as subsection (d), provides that the
provisions of the Illinois Administrative Procedure Act apply to the
adoption of rules under the State Act. All Illinois State agencies must
comply with the provisions of the Illinois Administrative Act at 5 ILCS
100/5 when adopting, amending, or repealing administrative rules. While
there is no direct Federal counterpart to the removed provisions,
section 102(i) of SMCRA and the Federal regulation at 30 CFR
732.15(b)(10) require State programs to provide for public
participation in the development and revision of State regulations. The
Illinois Administrative Act at 5 ILCS 100/5 provides for the
publication in the Illinois Register of proposed rulemaking and
provides for public participation in the rulemaking process. So, we
find that the deletion of the existing provisions at 225 ILCS 720/
9.01(c) through (g) and the first sentence of subsection (h) does not
make the Illinois program less stringent than SMCRA or less effective
than the Federal regulations.
IV. Summary and Disposition of Comments
Federal Agency Comments
On July 13, 2001, under section 503(b) of SMCRA and 30 CFR
732.17(h)(11)(i) of the Federal regulations, we requested comments on
the amendment from various Federal agencies with an actual or potential
interest in the Illinois program (Administrative Record No. IL-5069).
We did not receive any comments.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the
written concurrence of the EPA for those provisions of the program
amendment that relate to air or water quality standards issued 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.). None of the revisions that
Illinois proposed to make in this amendment pertain to air or water
quality standards. Therefore, we did not ask the EPA for its
concurrence.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from the EPA (Administrative Record No. IL-5069). The EPA
responded on July 24, 2001 (Administrative Record No. IL-5070), that it
had reviewed the program amendment and had no comments to offer.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On July 13, 2001, we requested comments on Illinois'
amendment (Administrative Record No. IL-5069), but neither responded to
our request.
Public Comments
We asked for public comments on the amendment, but did not receive
any.
V. Director's Decision
Based on the above findings, we approve the amendment as submitted
by Illinois on June 28, 2001.
However, as discussed in finding No. III.D, if Illinois ever
proposes regulations to implement 225 ILCS 720/2.08(e), we will require
Illinois to add a provision that terminates the authority of the
regulations on September 30, 2004.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 913, which codify decisions concerning the Illinois
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrates that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this rule effective immediately will expedite that
process.
VI. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary under SMCRA.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 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 because each program is drafted and promulgated by a
specific State, not by OSM. Under sections 503 and 505 of SMCRA (30
U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on 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.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866 and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed State regulatory program provision does not
constitute a major Federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
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Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget 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.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, federal, state, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 913
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 27, 2001.
Charles E. Sandberg,
Acting 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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Original amendment submission Date of final Citation/
date publication description
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* * * *
* * *
June 28, 2001.................. November 21, 2001. 225 ILCS 720/
1.03(a)(9-a),
1.04(a) and (c),
105, 2.08(e),
6.07(f), 6.08(i),
7.03(b), 7.04(a),
9.01.
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[FR Doc. 01-29028 Filed 11-20-01; 8:45 am]
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