[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.

* * * * *

------------------------------------------------------------------------
 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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