[Federal Register Volume 70, Number 228 (Tuesday, November 29, 2005)]
[Rules and Regulations]
[Pages 71394-71401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23401]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 913
[Docket No. IL-103-FOR]
Illinois Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are approving an amendment to the Illinois regulatory program
(Illinois program) under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act). The Illinois Department of Natural
Resources, Office of Mines and Minerals (Department or Illinois) is
revising its regulations regarding revegetation success standards, to
update statutory citations, to correct regulatory citations, and to
clarify language in various provisions. Illinois is revising its
program to clarify ambiguities and to improve operational efficiency.
DATES: Effective November 29, 2005.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field
Division--Indianapolis Area Office. Telephone: (317) 226-6700. E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Illinois Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM'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 State 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 these criteria, the Secretary of the Interior (Secretary)
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 23858). You
can also find later actions concerning the Illinois program and program
amendments at 30 CFR 913.10, 913.15, 913.16, and 913.17.
II. Submission of the Amendment
By letter dated February 1, 2005 (Administrative Record No. IL-
5088), Illinois sent us an amendment to its program under SMCRA (30
U.S.C. 1201 et seq.). Illinois sent the amendment at its own
initiative. Illinois proposed to amend its regulations at 62 Illinois
Administrative Code (IAC) parts 1816 (Surface Mining Operations), 1817
(Underground Mining Operations), and 1823 (Prime Farmland).
We announced receipt of the proposed amendment in the April 4,
2005, Federal Register (70 FR 17014). 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. We did not hold a
public
[[Page 71395]]
hearing or meeting because no one requested one. The public comment
period ended on May 4, 2005. We received comments from one Federal
agency.
During our review of the amendment, we identified concerns about
some editorial-type errors. We notified Illinois of these concerns by
letters dated March 3 and April 6, 2005 (Administrative Record Nos. IL-
5092 and IL-5095).
By e-mail dated August 3, 2005 (Administrative Record No. IL-5099),
Illinois sent us revisions to its proposed program amendment. Because
the revisions merely corrected the editorial-type errors that we
identified in Illinois' amendment, we did not reopen the public comment
period.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment as described below.
A. Minor Revisions to Illinois' Regulations
Illinois proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to the following previously-
approved regulations:
1. 62 IAC 1816.Appendix A, Agricultural Lands Productivity Formula
(ALPF); 62 IAC 1817.42, Hydrologic Balance--Water Quality Standards and
Effluent Limitations; 62 IAC 1817.43, Diversions; and 62 IAC 1817.116,
Revegetation: Standards for Success
Illinois proposed to correct citation references at 62 IAC
1816.Appendix A, 1817.42, 1817.43, and 1817.116.
2. 62 IAC 1816.Appendix A
Illinois proposed minor wording changes in the corn and soybean
sampling technique sections.
3. 62 IAC 1816.Appendix A, 1817.43(b)(3) and (c)(3), and 1823.15(b)(3)
At 62 IAC 1816.Appendix A, 1817.43(b)(3) and (c)(3), and
1823.15(b)(3), Illinois proposed to simplify its use of numbers by
eliminating numbers that are in words and retaining the numbers that
are in figures. For example, Illinois changed a numerical reference
from ``ten (10) year, six (6) hour'' to ``10 year, 6 hour.''
Because these changes are minor, we find that they will not make
Illinois' regulations less effective than the corresponding Federal
regulations at 30 CFR 816.116, 817.42, 817.43, 817.116, and 823.15.
B. 62 IAC 1816.116 (Surface Mining) and 1817.116 (Underground Mining)
Revegetation: Standards for Success
Illinois proposed to amend its regulations at 62 IAC 1816.116 to
(1) Incorporate at new subsection (a)(6), an alternative method for
determining success of revegetation for cropland and pasture land and/
or hayland or grazing land; (2) update requirements pertaining to
adjustment for abnormal, catastrophic, growing conditions when the ALPF
or the new alternative method is used for determining success of
revegetation; (3) remove references to oats as a crop that may be used
to prove success of revegetation; (4) update information in the soil
master file, county average yield file, the agricultural lands
productivity formula sampling method, and Exhibit A in the ALPF; and
(5) delete Tables A through F from the ALPF. Illinois proposed to amend
its regulation at 62 IAC 1817.116 to reference the new alternative
method for determining success of revegetation for cropland and pasture
land and/or hayland or grazing land at 62 IAC 1816.116(a)(6). Illinois
proposed to amend 62 IAC 1816.116 and 1817.116 to update references to
and requirements in existing regulations concerning the new alternative
method.
1. 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C)
a. At 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C), Illinois
proposed to change its references from the ``Illinois Agronomy Handbook
(1999-2000)'' to the ``Illinois Agronomy Handbook, 23rd Edition
(University of Illinois at Champaign-Urbana, College of Agriculture,
Consumer and Environmental Science, 1917 Wright St., Champaign, IL
61820 (2001-2002; this incorporation includes no later amendment or
editions)).''
b. At 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C), Illinois also
proposed to change its references from the old Federal conservation
plan act, ``Food, Agriculture, Conservation and Trade Act of 1990 (7
U.S.C. 1421 et seq.),'' to the new Federal conservation plan act,
``Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171; 116
Stat. 134).''
c. Finally, at 62 IAC 1816.116(a)(2)(C), Illinois proposed to
remove the following language:
The Illinois Agronomy Handbook is published by the University of
Illinois Cooperative Extension Service, Office of Agricultural
Communications and Education, 69E Mumford Hall, 1301 West Gregory
Drive, Urbana, Illinois 61801.
The removed language was replaced by information in Illinois' new
reference to the Illinois Agronomy Handbook.
Illinois proposed these changes as a result of comments received
from the Natural Resources Conservation Service (NRCS). Because these
editorial and reference changes are minor, we find that they will not
make Illinois' regulations less effective than the corresponding
Federal regulations at 30 CFR 816.116 and 817.116.
2. 62 IAC 1816.116(a)(3)(C) and (E) and 1817.116(a)(3)(C) and (E)
a. At subsection (a)(3)(C) and (E), Illinois proposed to add a
reference to new 62 IAC 1816.116(a)(6). Subsection (a)(3)(C) concerns
areas, in the approved reclamation plan, designated as cropland, except
those prime farmland cropland areas subject to 62 IAC 1823.15.
Subsection (a)(3)(E) concerns areas, in the approved reclamation plan,
designated as pasture and/or hayland or grazing land, except for
erosion control devices and other structures. As revised, subsection
(a)(3)(C) requires that the determination of success of revegetation
for cropland areas be made in accordance with 62 IAC 1816.116(a)(4) or
(a)(6). Also, revegetation will be considered successful if it is 90
percent of the crop production required in 62 IAC 1816.116(a)(4) or
(a)(6) with 90 percent statistical confidence. As revised, subsection
(a)(3)(E) requires that the determination of success of revegetation
(tons of grasses and/or legumes per acre) for pasture and/or hayland or
grazing land be made in accordance with 62 IAC 1816.116(a)(4) or
(a)(6). Also, revegetation will be considered successful if it is 90
percent of the crop production required in 62 IAC 1816.116(a)(4) or
(a)(6) with 90 percent statistical confidence. Currently approved 62
IAC 1816.116(a)(4) references the ALPF, which includes the standards
and sampling techniques to be used to evaluate success of revegetation
for cropland and pasture and/or hayland or grazing land. Proposed new
62 IAC 1816.116(a)(6) is an alternative to using the ALPF and includes
an optional method for determining the standard to be used to evaluate
success of revegetation for cropland and pasture and/or hayland or
grazing land. The currently approved method in the ALPF for calculating
the standard for determining success of revegetation is based on the
current level of yield for a soil type within the county. At proposed
62 IAC 1816.116(a)(6), the alternative method for calculating the
standard for
[[Page 71396]]
determining success of revegetation, is based on an average of the last
five years of yield for a specific crop for a specific soil type in the
county.
The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1)
require that standards for success of revegetation and statistically
valid sampling criteria for measuring success must be selected by the
regulatory authority and included in an approved regulatory program.
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require that standards for success of revegetation must include
criteria representative of unmined lands in the area being reclaimed to
evaluate the appropriate vegetation parameters of ground cover,
production, or stocking. We find that Illinois' proposed alternative
method at 62 IAC 1816.116(a)(6) for calculating the standard for
determining success of revegetation is no less effective than the
requirements of the Federal regulations at 30 CFR 816.116(a) and
817.116(a). Therefore, we are approving the addition of a reference to
62 IAC 1816.116(a)(6) at 62 IAC 1816.116(a)(3)(C) and (E) and
817.116(a)(3)(C) and (E).
b. Illinois also proposed to add the following requirement at the
end of subsections (a)(3)(C) and (a)(3)(E): ``Once chosen by the
permittee, the productivity alternative in 62 IAC 1816.116(a)(6) may
not be modified without approval from the Department.''
In accordance with the Federal regulation at 30 CFR 774.13(c), no
permit revision can be approved unless the application demonstrates and
the regulatory authority finds that reclamation as required by the Act
and regulatory program can be accomplished. Because, Illinois requires
that the productivity alternative under 62 IAC 1816.116(a)(6), once
chosen by the permittee, may not be modified without approval of the
Department, we find that the proposed requirement is no less effective
than the requirement of the Federal regulation at 30 CFR 774.13(c), and
we are approving it.
3. 62 IAC 1816.116(a)(4) and 62 IAC 1817.116(a)(4)
At 62 IAC 1816.116(a)(4) and 1817.116(a)(4), Illinois proposed to
reference the new alternative method at 62 IAC 1816.116(a)(6) for
determining success of revegetation. At 62 IAC 1816.116(a)(4), Illinois
also proposed to update requirements pertaining to adjustment for
abnormal, catastrophic, growing conditions when the ALPF or the new
alternative method is used for determining success of revegetation and
to remove a reference to oat crops from several provisions.
a. At 62 IAC 1816.116(a)(4) and 1817.116(a)(4), Illinois proposed
to reference the new alternative method at 62 IAC 1816.116(a)(6). As
revised, subsections (a)(4) provide that in order to use the ALPF, 62
IAC 1816.Appendix A, or the alternative method at 62 IAC 1816.116(a)(6)
to determine success of revegetation, the requirements of 62 IAC
1816.116(a)(4) apply.
At 62 IAC 1816.116(a)(4)(A), the permittee is required to submit
annually a scale drawing or aerial photograph delineating field
boundaries, a field numbering scheme, the total acreage for each field,
and the crop that will be grown on each field to demonstrate proof of
productivity for the coming crop year. Once approved by the Department,
the information required by 62 IAC 1816.116(a)(4)(A) cannot be changed
without restarting the responsibility period, unless the submittal is
amended in accordance with Illinois' permit revision regulation at 62
IAC 1774.13(b)(2). Illinois' regulation at 62 IAC 1816.116(a)(4)(B)
requires the permittee to use the sampling methods of the ALPF for
measuring success of revegetation. At 62 IAC 1816.116(a)(4)(C), the
permittee may make adjustments to crop yields due to abnormal growing
conditions by meeting specified requirements. Illinois' regulation at
62 IAC 1816.116(a)(4)(D) specifies the kind of crops that must be grown
to determine success of revegetation.
The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)
require that standards for success of revegetation and statistically
valid sampling criteria for measuring success must be selected by the
regulatory authority and included in an approved regulatory program.
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)
require that standards for success of revegetation must include
criteria representative of unmined lands in the area being reclaimed to
evaluate the appropriate vegetation parameters of ground cover,
production, or stocking. We find that Illinois' proposed alternative
method at 62 IAC 1816.116(a)(6) for calculating the standard for
determining success of revegetation is no less effective than the
requirements of the Federal regulations at 30 CFR 816.116(a) and
817.116(a). Therefore, we are approving the addition of a reference to
new 62 IAC 1816.116(a)(6) at 62 IAC 1816.116(a)(4) and 1817.116(a)(4).
Also, the Federal regulations at 30 CFR 780.18(b)(5)(vi) and
784.13(b)(5)(vi) require the reclamation plan to contain a plan for
revegetation as required in 30 CFR 816.111 through 816.116 and 817.111
through 817.116 including, but not limited to, measures proposed to be
used to determine the success of revegetation as required by 30 CFR
816.116 and 817.116. We find that Illinois' requirement that the
permittee must meet the requirements of 62 IAC 1816.116(a)(4)(A)
through (D) in order to use the ALPF or the alternative method in 62
IAC 1816.116(a)(6) to determine success of revegetation, is no less
effective than the requirements of 30 CFR 780.18(b)(5) and
784.13(b)(5).
b. Illinois proposed to revise the requirements of 62 IAC
1816.116(a)(4)(C) concerning adjustments for abnormal growing
conditions to read as follows: ``Adjustments for abnormal growing
conditions shall be accepted by the Department if such adjustments are
certified by a qualified professional (American Society of Agronomy
certified) or National Association of State Departments of Agriculture
crop enumerators used under this Section, whose ability to perform such
adjustments has been previously approved by the Department.'' Currently
approved 62 IAC 1816.116(a)(4)(C) requires adjustments for abnormal
growing conditions to be certified by a crop adjuster certified to
perform adjustments by the Federal Crop Insurance Corporation (FCIC).
Because FCIC crop adjusters in Illinois are no longer available to
certify adjustments for abnormal growing conditions, Illinois proposed
to allow such adjustments to be certified by a qualified professional
(American Society of Agronomy certified) or National Association of
State Departments of Agriculture crop enumerators. Illinois provided a
letter dated December 17, 2004, from the NRCS State Conservationist,
which stated that the NRCS concurred with the proposed change
(Administrative Record No. IL-5088).
Based on the discussion above, we find that the proposed change to
this previously approved provision will not alter our original approval
of Illinois' regulation at 62 IAC 1816.116(a)(4)(C) to allow
adjustments for abnormal growing conditions, and we are approving the
change.
c. Illinois proposed to make the following changes to 62 IAC
1816.116(a)(4)(D):
(1) Illinois proposed to remove a reference to ``oats'' as a type
of crop commonly grown on surrounding unmined cropland and as a crop
that may be used for one year to demonstrate productivity on prime
farmland and
[[Page 71397]]
other cropland areas. Oats is being removed because it is not grown
enough in Illinois to have agricultural statistics upon which to
establish a standard of yield. With the removal of oats, the types of
crops commonly grown on surrounding unmined cropland in Illinois
include corn, soybeans, hay, sorghum, and wheat. The Federal regulation
at 30 CFR 823.15(a)(6) requires that the reference crop on which
restoration of soil productivity is proven shall be selected from the
crops most commonly produced on the surrounding prime farmland. The
Federal regulation at 30 CFR 816.116(a)(2) requires standards for
success to include criteria representative of unmined lands in the area
being reclaimed to evaluate the appropriate vegetation parameters of
ground cover, production, or stocking. We find that the deletion of
oats as a reference crop meets the requirements of 30 CFR 823.15(a)(6)
and 816.116.(a)(2), and we are approving it.
(2) Illinois proposed to add the following requirement concerning
deep tillage of prime farmland and other cropland areas:
If deep tillage has been completed to a minimum depth of 36
inches prior to bond release, the applicant may use more than one
successful year of hay or wheat as a crop to be used for the
productivity demonstration. The requirement for one successful year
of corn remains unchanged under this provision.
Currently, if the Department approves a hay crop use, subsection
(a)(4)(D) requires operators to grow a minimum of one successful year
of corn and allows operators to grow one year of hay and one year of
wheat to demonstrate revegetation success on prime farmland and other
cropland areas. Illinois' proposed change would allow operators to grow
two years of hay or two years of wheat if deep tillage has been
completed to a minimum depth of 36 inches, while retaining the
requirement for one successful year of corn. The Federal regulation at
30 CFR 816.116(a)(1) requires that standards for success of
revegetation and statistically valid sampling criteria for measuring
success must be selected by the regulatory authority and included in an
approved regulatory program. We find that Illinois' proposal is no less
effective than the requirements of the Federal regulation at 30 CFR
816.116(a)(1), and we are approving this change.
4. 62 IAC 1816.116(a)(6)
Illinois proposed a new productivity alternative at new subsection
(a)(6). It reads as follows:
(6) In order to use the alternative to the Agricultural Lands
Productivity Formula, Appendix A, to determine success of
revegetation, the following shall apply: use of this alternative is
contingent that the permittee can demonstrate for the entire field
that the soil strength of the entire soil profile will average <=
200 psi or has been deep tilled to a minimum depth of 36 inches
prior to bond release, and soil fertility will average Optimum
Management for pH, P and K values as defined under the current
Illinois Agronomy Handbook, and intensive land leveling is
implemented, as needed, for the entire field. Areas to be tested are
allowed under the provisions of subsections (a)(3)(C) or (E ).
(A) The following substitution of Column F--Appendix A--County
Average Yield File shall read:
Column F is a derived optimum management production (Figure)
obtained by multiplying the figures in Column D times the figures in
Column E. This production figure will normally exceed actual
production because the optimum level management yield is used. The
purpose of using the optimum management production is to derive a
weighted average optimum management yield which is the total optimum
management production (Column F) divided by the total grain acres in
the county (Column D). The weighted optimum management yield figure
will be used to derive a ``factor'' as described below:
Factor = Average of Official County Crop Yield for the Five Previous
Years / Average of Weighted Optimum Management Yield for the Five
Years
(B) When the above ``factor'' and hand sampling is used, the
harvest loss will be calculated by averaging the harvest loss of the
five previous years for the crop being tested.
The Federal regulation at 30 CFR 816.116(a)(1) requires that
standards for success and statistically valid sampling criteria for
measuring success be selected by the regulatory authority and included
in an approved regulatory program. The Federal regulation at 30 CFR
816.116(a)(2) requires that standards for success include criteria
representative of unmined lands in the area being reclaimed to evaluate
the appropriate vegetation parameters of ground cover, production, or
stocking. The previously approved regulation at 62 IAC 1816.116(a)(4)
that references the Agricultural Lands Productivity Formula at Appendix
A includes both the standards and sampling techniques to be used to
evaluate revegetation success for cropland. The proposed regulation to
allow the use of 62 IAC 1816.116(a)(6) would allow the operator the
option of an alternative method for determining the cropland standard
when the field has been determined to have a maximum soil strength and
a minimum fertility. The current approved program calculates the
standard on the current level of yield for a soil type within the
county. The alternative method would allow the use of a standard based
on an average of the last five years of yield for a specific crop for a
specific soil type in the county. We find that the optional method at
62 IAC 1816.116(a)(6) reduces the annual variability of the
productivity standard while maintaining the representative character of
the standard. Therefore, the revised regulation is no less effective
than the Federal regulation at 30 CFR 816.116(a), and we are approving
it.
5. 62 IAC 1816.Appendix A--ALPF
Illinois proposed to update information in the soil master file,
county cropped acreage file, county average yield file, the
agricultural lands productivity formula sampling method, and Exhibit A
in the ALPF. Illinois also proposed to delete Tables A through F from
the ALPF.
a. Illinois proposed to remove its reference to ``oats'' as a grain
crop used for evaluation of success of revegetation from the Soil
Master File; the County Average Yield File; the Agricultural Lands
Productivity Formula Sampling Method; and Exhibit A, County Crop Yields
by Soil Mapping Unit. Illinois also proposed to remove the sections
``Oats Sampling Technique (Rows >8'')'' and ``Oats Sampling Technique
(Discernible Rows)'' from the Agricultural Lands Productivity Formula
Sampling Method.
For the reasons discussed in finding III.B.3.c.(1), we find that
the proposed revisions to remove a reference to a grain crop that is no
longer commonly grown in Illinois is no less effective than the Federal
regulations at 30 CFR 823.15(a)(6) and 816.116(a)(2), and we are
approving them. We also find that the proposed revision to remove the
sampling techniques for a crop that is no longer commonly grown in
Illinois is no less effective than the Federal regulations, and we are
approving it.
b. Soil Master File. Illinois proposed to revise the introductory
paragraph by changing the word ``high'' to the word ``optimum'' in its
reference to the ``high level of management yields'' and to add a
reference to Bulletin 811, ``Optimum Crop Productivity Ratings for
Illinois Soil,'' University of Illinois, College of Agricultural,
Consumer and Environmental Sciences, Office of Research, August 2000.
Bulletin 811 is the reference document for information contained in the
soil master file. Illinois also proposed to remove the information
regarding additional components of the soil master file.
The level of management applied for the productivity standard needs
to be
[[Page 71398]]
representative of the unmined lands in the area. Bulletin 811 applies a
recognized standard of crop productivity as determined by the
University of Illinois, College of Agriculture. Because of the change
to new Bulletin 811, the deleted additional components of the soil
master file are no longer necessary. The Federal regulation at 30 CFR
816.116(a)(2) requires that the standards for success must include
criteria representative of unmined lands in the area being reclaimed to
evaluate the appropriate vegetation parameters of ground cover,
production, or stocking. We find that Illinois' proposal to eliminate
outdated information and to use a contemporary University agricultural
publication to support its standard is consistent with the Federal
regulation at 30 CFR 816.116(a)(2), and we are approving it.
c. County Average Yield File. Illinois proposed to change the word
``high'' to the word ``optimum'' in the phrase ``high management
yield.'' Illinois also proposed to add the following new provision:
If official county crop yields are unavailable for a specific
crop in a given year, the Department, in consultation with the
permittee, and with the concurrence of the Illinois Department of
Agriculture, will substitute a county crop yield from an adjacent
county with similar soils, if it can be determined that similar
weather conditions occurred in that year.
For the reasons discussed above in finding III.B.5.b, we find that
Illinois' proposal to change the word ``high'' to ``optimum'' is
consistent with the Federal regulations at 30 CFR 823.15(a)(6) and
816.116(a)(2), and we are approving the word change. Illinois provided
a letter dated December 17, 2004, from the NRCS State Conservationist
that concurs with the new provision proposed by Illinois regarding the
substitution of a county crop yield from an adjacent county if official
county crop yields are unavailable for a specific crop in a given year
under specified conditions (Administrative Record No. IL-5088).
Illinois has determined that hay and wheat are grown so little in some
counties that data from adjacent counties must be used as the standard.
For prime farmland, the Federal regulation at 30 CFR
823.15(b)(7)(i) requires that reference crop yields for a given crop
season are to be determined from the current yield records of
representative local farms in the surrounding area, with the
concurrence by the NRCS. For other cropland, the Federal regulation at
30 CFR 816.116(a)(2) requires that the standards for success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. We find that Illinois has provided the
necessary concurrence of the NRCS for prime farmland and the proposed
revision is no less effective than the Federal regulation at 30 CFR
823.15(b)(7)(i). We also find that because the soils and weather
conditions must be similar in the adjacent county and the concurrence
of the Illinois Department of Agriculture is required, the proposed
revision for other cropland is no less effective than the Federal
regulations at 30 CFR 816.116(a)(2). Therefore, we are approving the
new provision.
d. Agricultural Lands Productivity Formula Sampling Method.
Corn Sampling Technique. Illinois proposed to delete the current
row factor information under step 10 of its corn sampling technique and
replace it with ``average row width in feet x 15 feet of row / 43560
square feet/acre and .845 = the standard moisture content conversion
factor of corn per bushel (1.0-(15.5%/100).'' The existing table
provides a row factor for four row spacing widths of 30, 36, 38, and 40
inches. The table is being replaced by a formula for calculating a row
factor for any row width. The Federal regulation at 30 CFR
816.116(a)(1) requires that standards for success and statistically
valid sampling criteria for measuring success shall be selected by the
regulatory authority and included in an approved regulatory program. We
find that Illinois' revision meets the requirements of the Federal
regulation, and we are approving it.
e. Exhibit A County Crop Yields by Soil Mapping Unit. Illinois
proposed to change the word ``high'' to the word ``optimum'' in columns
E and F.
The Federal regulation at 30 CFR 816.116(a)(2) requires that the
standards for success shall include criteria representative of unmined
lands in the area being reclaimed to evaluate the appropriate
vegetation parameters of ground cover, production, or stocking. The
Illinois proposal is the result of replacing the obsolete soil master
file with Bulletin 811 that references optimum rather than high levels
of production for the State of Illinois. Bulletin 811 applies a
recognized standard of crop productivity as determined by the
University of Illinois, College of Agriculture and is consistent with
the Federal regulations. We find that the proposal to eliminate
outdated information and use a contemporary University agricultural
publication to support its standard is consistent with the Federal
regulations, and we are approving it.
f. Illinois proposed to delete Tables A through F from the ALPF.
The information in Tables A, B, and D is redundant of other information
found in the ALPF and the information in Tables C, E, and F are no
longer needed.
The Federal regulation at 30 CFR 816.116(a)(1) requires that
standards for success and statistically valid sampling criteria for
measuring success shall be selected by the regulatory authority and
included in an approved regulatory program. Because these tables are
redundant or no longer needed, we find that the proposed deletions are
not inconsistent with the Federal regulations.
C. 62 IAC 1817.121 Subsidence Control
At subsection (c) entitled ``Repair of damage,'' Illinois proposed
to remove the last sentence from paragraph (2) and to make it the new
introductory paragraph to subsection (c). Illinois also proposed to add
a new exception clause to the end of the relocated sentence. The new
introductory paragraph reads as follows:
The requirements of this subsection apply only to subsidence-
related damage caused by underground coal extraction conducted after
February 1, 1983, except as noted in Section 1817.41(j).
Illinois removed the last sentence from paragraph (2) and made it
the introductory paragraph to subsection (c) in order to clarify that
all parts of subsection (c) are subject to the February 1, 1983, date.
Illinois added the exception clause because the replacement of water
supplies was effective January 19, 1996, the date that 62 IAC
1817.41(j) was promulgated, rather than the February 1, 1983, date. We
find that Illinois' proposed revisions are appropriate and will not
make the Illinois regulation at 62 IAC 1817.121(c) less effective than
the counterpart Federal regulation at 30 CFR 817.121(c), and we are
approving the revisions.
D. 62 IAC 1823.15 Prime Farmland: Revegetation
1. At subsections (b)(2) and (b)(3), Illinois proposed to add a
reference to new 62 IAC 1816.116(a)(6). As revised, subsection (b)(2)
requires that success of revegetation be measured in accordance with 62
IAC 1816.116(a)(4) or (a)(6). As revised, subsection (b)(3) now
requires that revegetation be considered a success when crop production
is equivalent to or exceeds the production standards of 62 IAC
1816.116(a)(4) or (a)(6) with 90 percent statistical confidence.
Currently approved 62 IAC
[[Page 71399]]
1816.116(a)(4) references the ALPF, which includes the yield standards
and sampling techniques to be used to evaluate success of revegetation
for cropland, including prime farmland, and pasture and/or hayland or
grazing land. As revised, 62 IAC 1816.116(a)(4) will also reference the
alternative method at 62 IAC 1816.116(a)(6). Proposed new 62 IAC
1816.116(a)(6) is an alternative to using the ALPF and includes an
optional method for determining the standard to be used to evaluate
success of revegetation for cropland and pasture and/or hayland or
grazing land. The currently approved method in the ALPF for calculating
the standard for determining success of revegetation is based on the
current level of yield for a soil type within the county. The
alternative method at proposed 62 IAC 1816.116(a)(6) for calculating
the standard for determining success of revegetation is based on an
average of the last five years of yield for a specific crop for a
specific soil type in the county.
The Federal regulation at 30 CFR 823.15(b)(2) requires that soil
productivity be measured on a representative sample or on all of the
mined and reclaimed prime farmland area using the reference crop
determined under 30 CFR 823.15(b)(6). A statistically valid sampling
technique at a 90 percent or greater statistical confidence that has
been approved by the regulatory authority in consultation with the NRCS
must be used. The Federal regulation at 30 CFR 823.15(b)(6) requires
that the reference crop that will be used to prove soil productivity
must be selected from the crops most commonly produced on the
surrounding prime farmland. Illinois provided documentation of the NRCS
consultation process. In a letter dated December 17, 2004, the NRCS
stated that it concurs with the proposed rule changes and the revised
reference crop yield determinations and procedures will make for a
better rule (Administrative Record No. IL-5088). Therefore, we find
that Illinois' revised regulations at 62 IAC 1823.15(b)(2) and (b)(3)
are no less effective than the Federal regulations at 30 CFR
823.15(b)(2) and (b)(3), and we are approving them.
2. Illinois also proposed to add the following requirement at the
end of subsection (b)(3): ``Once chosen by the permittee, the
productivity alternative in 62 IAC 1816.116(a)(6) may not be modified
without approval from the Department.''
In accordance with the Federal regulation at 30 CFR 774.13(c), no
permit revision can be approved unless the application demonstrates and
the regulatory authority finds that reclamation as required by the Act
and regulatory program can be accomplished. Because, Illinois requires
that the productivity alternative under 62 IAC 1816.116(a)(6), once
chosen by the permittee, may not be modified without approval of the
Department, we find that the proposed requirement is no less effective
than the requirement of the Federal regulation at 30 CFR 774.13(c), and
we are approving it.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment, but did not receive
any.
Federal Agency Comments
On February 8, 2005, under 30 CFR 732.17(h)(11)(i) and section
503(b) of SMCRA, we requested comments on the amendment from various
Federal agencies with an actual or potential interest in the Illinois
program (Administrative Record No. IL-5090). We received comments from
the NRCS. The NRCS responded on February 28, 2005 (Administrative
Record No. IL-5091), that it recommended that Illinois' reference to
the ``1999-2000 Illinois Agronomy Handbook'' be changed to ``current
Illinois Agronomy Handbook'' and questioned whether the reference to
``the Food, Agriculture, Conservation, and Trade Act of 1990'' needs to
be updated to the ``Farm Security and Rural Investment Act of 2002.''
These references that the NRCS wanted to change are found in
Illinois' regulations at 62 IAC 1816.116(a)(2)(C) and
1817.116(a)(2)(C). As discussed in findings III.B.1, Illinois revised
these regulations in accordance with the NRCS comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from 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 those air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment.
On February 8, 2005, under 30 CFR 732.17(h)(11)(i), we requested
comments on the amendment from EPA (Administrative Record No. IL-5090).
EPA did not respond to our request.
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 February 8, 2005, we requested comments on Illinois'
amendment (Administrative Record No. IL-5090), but neither responded to
our request.
V. OSM's Decision
Based on the above findings, we approve the amendment Illinois sent
us on February 1, 2005, and as revised on August 3, 2005.
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 demonstrate 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 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
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 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
the Federal regulations at 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
[[Page 71400]]
and whether the other requirements of 30 CFR parts 730, 731, and 732
have been met.
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 pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
This determination is based on the fact that the Illinois program does
not regulate coal exploration and surface coal mining and reclamation
operations on Indian lands. Therefore, the Illinois program has no
effect on Federally-recognized Indian tribes.
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
This rule does not require an environmental impact statement
because 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 certifies 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. 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; and (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 an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. 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 regulations did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 913
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 21, 2005.
Charles E. Sandberg,
Regional Director, Mid-Continent Region.
0
For the reasons set out in the preamble, 30 CFR part 913 is amended as
set forth below:
PART 913--ILLINOIS
0
1. The authority citation for part 913 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
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
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
February 1, 2005.............. November 29, 2005 62 IAC
1816.116(a)(2)(C),
(a)(3)(C) and
(a)(3)(E), (a)(4),
(a)(4)(C) and (D),
(a)(6); 1816.
Appendix A; 1817.42;
1817.43(a)(2)(D),
(b)(3), (c)(3);
1817.116(a)(2)(C),
(a)(3)(C) and
(a)(3)(E), (a)(4),
(b)(2); 1817.121(c),
(c)(2);
1823.15(b)(2) and
(b)(3).
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[FR Doc. 05-23401 Filed 11-28-05; 8:45 am]
BILLING CODE 4310-05-P