[Federal Register Volume 62, Number 204 (Wednesday, October 22, 1997)]
[Rules and Regulations]
[Pages 54765-54769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27982]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-081-FOR]


Illinois Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Illinois 
permanent regulatory program (hereinafter referred to as the ``Illinois 
program'') pursuant to the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). This amendment provides that areas revegetated 
following the removal of temporary structures such as sedimentation 
ponds, roads, and small diversions are not subject to a revegetation 
responsibility period and bond liability period separate from that of 
the permit area or increment thereof served by such facilities. The 
amendment is intended to clarify ambiguities in the State regulations 
and to improve operational efficiency.

EFFECTIVE DATE: October 22, 1997.

FOR FURTHER INFORMATION CONTACT:
Andrew R. Gilmore, Director, Indianapolis Field Office, Office of 
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal 
Building, 575 North Pennsylvania Street, Room 301, Indianapolis, IN 
46204-1521, Telephone: (317) 226-6700.

SUPPLEMENTARY INFORMATION:

I. Background on the Illinois Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Illinois Program

    On June 1, 1982, the Secretary of the Interior conditionally 
approved the Illinois program. Background information on the Illinois 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the June 1, 
1982 Federal Register (47 FR 23883). Subsequent actions concerning the 
conditions of approval and program amendments can be found at 30 CFR 
913.15, 913.16, and 913.17.

II. Submission of the Proposed Amendment

    By letter dated June 22, 1992 (Administrative Record No. IL-1192), 
Illinois submitted a proposed program amendment consisting of revisions 
to a number of its approved regulations. OSM announced receipt of the 
proposed amendment in the August 18, 1992, Federal Register (57 FR 
37127) and, in the same notice, opened the public comment period and 
provided opportunity for a public hearing on the adequacy of the 
proposed amendment. The public comment period ended on September 17, 
1992. Since no one requested an opportunity to testify at a public 
hearing, the hearing scheduled for September 14, 1992, was canceled.
    By letter dated April 27, 1993 (Administrative Record No. IL-1207), 
Illinois submitted revisions to its proposed amendment in response to 
concerns raised by OSM in letters dated September 2, 1992, and October 
2, 1992 (Administrative Record Nos. IL-1204 and IL-1205, respectively), 
and in response to comments received from other governmental agencies 
and individuals. OSM announced receipt of the revised amendment in the 
May 17, 1993, Federal Register (58 FR 28804) and, in the same notice, 
reopened the public comment period and again provided an opportunity 
for a public hearing. The public comment period closed on June 16, 
1993. As with the previous submittal, no one requested an opportunity 
to testify at a public hearing; therefore, the hearing scheduled for 
June 11, 1993, was canceled.
    OSM subsequently announced its decision on most provisions of the 
proposed amendment in the September 3, 1993, Federal Register (58 FR 
46845). However, in the same document, OSM stated at 58 FR 46849-50 
(finding 11(c)) and 30 CFR 913.15(o)(4) that it was deferring a 
decision on the proposed revisions to sections 1816.116(a)(2)(C) and 
1817.116(a)(2)(C) of title 62 of the Illinois Administrative Code (IAC) 
until additional opportunity for public comment was provided in a 
separate Federal Register document. That commitment was fulfilled by 
the notice published on September 15, 1993 (58 FR 48333), which 
reopened the public comment period until October 15, 1993. This notice 
also included similar proposed revisions to the Kentucky and Ohio 
regulations as well as a discussion of OSM's proposed policy concerning 
restart of the revegetation responsibility period every time a small 
portion of the permit area requires reseeding or replanting. 
Subsequently, in the May 29,

[[Page 54766]]

1996, Federal Register (61 FR 26792), OSM approved similar proposed 
revisions to the Colorado regulations, based on the adoption of the 
proposed OSM policy published on September 15, 1993 (58 FR 48333).
    Only Illinois' proposed revisions are under consideration in this 
final rule document. The Kentucky and Ohio proposals will be addressed 
in a separate final rule document. Since no one requested an 
opportunity to testify at a public hearing, no hearing was held.
    The amendment revises two regulations defining normal husbandry 
practices and other activities that will not restart the liability 
period. It also includes a document explaining how the State intends to 
interpret and implement these rules. This policy document specifies 
that Illinois will consider the reseeding of areas from which temporary 
features such as sedimentation ponds, roads, and diversions have been 
removed after vegetation is established on the surrounding area to be 
non-augmentative.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
deferred revisions at 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C) 
and the accompanying policy document that explains how the State 
intends to implement these rules.
    A. OSM's policy concerning the term of liability for reclamation of 
roads and temporary sediment control structures. As outlined in the May 
29, 1996, Federal Register (61 FR 26792), OSM has adopted the policy 
published for comment in the September 15, 1993, Federal Register (58 
FR 48333). Section 515(b)(20) of SMCRA provides that the revegetation 
responsibility period shall commence ``after the last year of augmented 
seeding, fertilizing, irrigation, or other work'' needed to assure 
revegetation success. In the absence of any indication of Congressional 
intent in the legislative history, OSM interprets this requirement as 
applying to the increment or permit area as a whole, not individually 
to those lands within the permit area upon which revegetation is 
delayed solely because of their use in support of the reclamation 
effort on the planted area. As implied in the preamble discussion of 30 
CFR 816.46(b)(5), which prohibits the removal of ponds or other 
siltation structures until two years after the last augmented seeding, 
planting of the sites from which such structures are removed need not 
itself be considered an augmented seeding necessitating an extended or 
separate liability period (48 FR 44038-44039, September 26, 1983).
    The purpose of the revegetation responsibility period is to ensure 
that the mined area has been reclaimed to a condition capable of 
supporting the desired permanent vegetation. Achievement of this 
purpose will not be adversely affected by this interpretation of 
section 515(b)(20) of SMCRA since (1) the lands involved are relatively 
small in size and either widely dispersed or narrowly linear in 
distribution and (2) the delay in establishing revegetation on these 
sites is due not to reclamation deficiencies or the facilitation of 
mining, but rather to the regulatory requirement that ponds and 
diversions be retained and maintained to control runoff from the 
planted area until the revegetation is sufficiently established to 
render such structure unnecessary for the protection of water quality.
    In addition, the areas affected likely would be no larger than 
those which could be reseeded (without restarting the revegetation 
period) in the course of performing normal husbandry practices, as that 
term is defined in 30 CFR 816.116(c)(4) and explained in the preamble 
to that rule (53 FR 34636, 34641; September 7, 1988; 52 FR 28012, 
28016; July 27, 1987). Areas this small would have a negligible impact 
on any evaluation of the permit area as a whole. Most importantly, this 
interpretation is unlikely to adversely affect the regulatory 
authority's ability to make a statistically valid determination as to 
whether a diverse, effective permanent vegetative cover has been 
successfully established in accordance with the appropriate 
revegetation success standards. From a practical standpoint, it is 
usually difficult to identify precisely where such areas are located in 
the field once revegetation is established in accordance with the 
approved reclamation plan.
    The above discussion of the rules in 30 CFR Part 816, which applies 
to surface mining activities, also pertains to similarly or identically 
constructed section in 30 CFR Part 817, which applies to underground 
mining activities.
    B. Comparison of Illinois' policy with OSM's policy clarification. 
Illinois' policy document specifies that the State will consider 
limited reseeding and associated fertilization and liming of areas 
where features such as sediment ponds, roads, and small diversions have 
been removed as non-augmentative on agricultural and non-agricultural 
lands where the area is small in relation to the watershed of the area. 
The statement also stipulates that any minor reseeded area be 
revegetated under approved plans and that vegetation be fully 
established at the time of final bond release. Illinois' reference to 
roads in its statement is interpreted by OSM to mean those roads 
necessary for maintenance of sediment ponds, diversions, and 
reclamation areas. Ancillary roads used for maintenance do not include 
haul roads or other primary roads which should either have been removed 
upon completion of mining or approved to be retained for an approved 
postmining land use. On April 11, 1997 (Administrative Record No. IL-
1243). OSM discussed the above interpretation of roads with Illinois. 
Illinois agreed with OSM's interpretation of the meaning of the term 
``roads'' as used in its policy document.
    Because Illinois' policy document stipulates that these small 
reclaimed areas must be revegetated under approved plans, the policy 
ensures that the vegetation of these areas would be subject to 
Illinois' counterparts to the Federal regulations at 30 CFR 816.111 and 
those portion of Illinois' counterparts to the Federal regulations at 
30 CFR 816.116 related to the attainment of the postmining land use. 
Illinois' policy requirement that vegetation on these small areas be 
fully established at the time of final bond release would tend to 
discourage the removal of ponds, roads, or diversions toward the end of 
the liability period for the surrounding area. If removal of the 
structures occurs toward the end of the liability period for the larger 
reclaimed area, the areas where the ponds or diversions existed would 
not qualify for final bond release until diverse, effective, and 
permanent vegetative cover is established that meets the standards of 
Illinois' counterpart to 30 CFR 816.111.
    Although Illinois' policy document is primarily concerned with the 
definition of normal husbandry practices, the term ``non-augmentative'' 
is used in reference to the removal of sediment ponds, roads, and small 
diversions that were used in support of reclamation. OSM interprets 
this to mean Illinois considers removal of these structures as non-
augmentative, but not as a normal husbandry practice. OSM agrees that 
removal of such structures, while being non-augmentative, in not a 
normal husbandry practice.
    Based on the above discussion, the Director finds that Illinois' 
policy is consistent with and no less effective than the Federal 
regulations at 30 CFR 816.46(b) (5) and (6), 816.150(f)(6), and 
sections 515(b) (19) and (20) of SMCRA,

[[Page 54767]]

as clarified by OSM in the September 15, 1993, Federal Register (58 FR 
48333).
    C. Removal of Required Regulatory Program Amendment 30 CFR 
913.16(o). In the December 13, 1991, Federal Register (56 FR 64986), 
OSM placed required regulatory program amendment 30 CFR 913.16(o) on 
the Illinois program. It required Illinois to either submit revisions 
to 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C) to require OSM 
approval of all normal husbandry practices other than those 
specifically listed in its approved program or delete the provisions 
providing Illinois with the authority to approve unspecified husbandry 
practices. By letter dated June 22, 1992 (Administrative Record No. IL-
1192), Illinois submitted proposed changes to its program. As part of 
these revisions, at 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C), 
Illinois proposed to revise its revegetation standards by specifying 
normal husbandry practices for the State. These included approved 
agricultural practices described in the Illinois Agronomy Handbook and 
those practices which are part of an approved conservation plan subject 
to the Food, Agriculture, Conservation and Trade Act of 1990 (7 U.S.C. 
1421 et seq.). The Illinois Agronomy Handbook is published by the 
University of Illinois--Cooperative Extension Service, Office of 
Agricultural Communications and Education. It includes recommended 
fertility management practices for row crops and hayland, which are 
tailored for site specific soil conditions; crop rotation practices; 
tillage practices; and application practices on unmined land in 
Illinois.
    Subsequently, by letter dated April 27, 1993 (Administrative Record 
No. IL-1207), Illinois submitted revisions to its proposed amendment in 
response to issue letters prepared by OSM on September 2, and October 
2, 1992 (Administrative Record Nos. IL-1204 and IL-1205, respectively), 
and in response to comments received from other agencies and 
individuals. Included in these revisions was the policy document in 
which Illinois explained how it would determine what are normal 
husbandry practices and how it would judge management practices on 
mined land against the recommended agricultural management practices 
and soil conservation practices of the referenced documents.
    These proposed revisions, which were approved in the September 3, 
1993, Federal Register (58 FR 46849), and the policy document satisfy 
required regulatory program amendment 30 CFR 913.16(o). Therefore, the 
Director is taking this opportunity to remove it from the Illinois 
program.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on Illinois' policy document and OSM's proposed 
policy.
    Comments were received from the Illinois Department of Mines and 
Minerals (now the Illinois Department of Natural Resources--Office of 
Mines and Minerals), the Kentucky Coal Association, the Kentucky 
Resources Council, the Lignite Energy Council, the National Coal 
Association, and the North Dakota Public Service Commission. Except for 
the Kentucky Resources Council, all of the commenters were in favor of 
the policy.
    In response to the Director's proposed clarification of OSM policy, 
the Kentucky Resources Council initiates its comments with the premise 
that OSM has proposed to treat the initial seeding and restoration of 
areas disturbed by diversions, roads and sedimentation ponds as 
``normal husbandry practices.'' It then argues that the initial seeding 
of such areas is not normal husbandry practice, and any revegetation 
other than ``husbandry practices'' as defined by 30 CFR 816.116(c)(4) 
constitutes ``augmented seeding'' and would therefore require extension 
of the full liability period for the establishment of permanent 
vegetation. First, the Director did not base not restarting the 
liability period on the contention that revegetation of such areas is a 
normal husbandry practice. Second, the Director does not agree that any 
revegetation other than ``normal husbandry practices'' constitutes 
``augmented seeding.'' The legislative history of the Act reveals no 
specific Congressional intent in the use of the term ``augmented 
seeding.'' Accordingly, OSM's interpretation of augmented seeding is 
given deference so long as it has a rational basis. OSM would not 
consider the seeding of small areas, such as ponds and their associated 
diversions and roads, as augmented seeding. For further discussion of 
such rationale, see the Director's Finding A. Under the proposed 
Illinois, Kentucky, and Ohio amendments, areas reclaimed following 
removal of temporary structures such as sedimentation ponds and 
associated structures and roads would not be subject to a separate or 
extended bond liability period apart form the applicable permit area 
served by such structures. The seeding of sedimentation ponds and their 
associated diversions and roads is not the result of reclamation 
failure, but because 30 CFR 816.46(b)(5) prohibits the removal of 
temporary sedimentation ponds until two years after the last augmented 
seeding.
    The Kentucky Resources Council overlooks the fact that for the vast 
majority of the reclaimed area the revegetation responsibility period 
will be at least five years. Neither Congressional history nor the 
language of the statute distinguishes between initial overall 
reclamation of a mined area and the subsequent restoration of temporary 
structures like sedimentation ponds and maintenance roads. In the 
absence of such distinction, the Secretary is delegated discretion to 
determine whether a proposed state amendment is no less effective than 
the Act and consistent with the counterpart Federal regulation. The 
Director's stated interpretation of Section 515(b)(20) is that it 
applies ``to the increment or permit area as a whole, not individually 
to those lands within that area upon which revegetation is delayed 
solely because of their use in support of the reclamation effort of the 
planted area.'' See 58 FR 48333, September 15, 1993.
    OSM has taken a consistent position in approving an amendment to 
the Colorado surface mining program which provided that reclaimed 
temporary drainage control facilities shall not be subject to the 
extended liability period for revegetative success or the related bond 
release criteria (61 FR 26792, May 29, 1996). The Director, therefore, 
does not agree with the commenter's interpretation of Section 
515(b)(20) of SMCRA.
    Because no one requested an opportunity to speak at a public 
hearing, no hearing was held.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Illinois program. Comments were 
received from the U.S. Forest Service and the U.S. Bureau of Mines. The 
U.S. Forest Service commented that it had reviewed OSM's proposed rule 
to clarify its policy towards revegetation and agreed with the proposed 
rule.
    The U.S. Bureau of Mines suggested that OSM consider the 
significant differences in the reclamation of sediment structures and 
roads, since sediment structures generally possess characteristics 
necessary for successful reclamation, while roads generally require 
significant initial work to

[[Page 54768]]

develop a necessary growth environment. OSM agrees with the commenter. 
OSM's policy and Illinois' regulations and policy document require that 
when such structures are removed, the land on which they were located 
must be regraded and revegetated in accordance with approved plans and 
the requirements of 30 CFR 816.111 through 816.116, or state 
counterparts. Because the Illinois policy will be limited to small 
areas, roads posing significant potential for reclamation problems will 
be excluded.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated 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.). The 
deferred provision from Illinois proposed amendment did not pertain to 
air or water quality standards. Therefore, OSM did not request the 
EPA's concurrence.
    Pursuant to 732.17(h)(11)(I), OSM solicited comments on the 
proposed amendment from the EPA (Administrative Record No. IL-1225). It 
responded on October 18, 1993 (Administrative Record No. IL-1231), that 
it concurred without comment.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit 
comments on proposed amendments which may have an effect on historic 
properties from the SHPO and ACHP. OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (Administrative Record Nos. 
IL-1226 and IL-1228). Neither the SHPO and ACHP responded to OSM's 
request.

V. Director's Decision

    Based on the above finding, the Director approves Illinois' 
regulations at 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C) and its 
policy document as submitted on June 22, 1992, and as revised on April 
27, 1993.
    The Federal regulations at 30 CFR Part 913, codifying decisions 
concerning the Illinois program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented 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 corresponding Federal regulations.

Unfunded Mandates

    OSM has determined and certifies pursuant to the Unfunded Mandates 
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a 
cost of $100 million or more in any given year on local, state, or 
tribal governments or private entities.

List of Subjects in 30 CFR Part 913

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 3, 1997.
Brent Wahlquist,
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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                                                                                                  Citation/     
      Original amendment submission date                 Date of final publication               description    
----------------------------------------------------------------------------------------------------------------
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
June 22, 1992................................  October 22, 1997............................  62 IAC             
                                                                                              1816.116(a)(2)(C);
                                                                                              1817.116(a)(2)(C);
                                                                                              Non-augmentation  
                                                                                              Policy Statement. 
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Sec. 913.16  [Amended]

    3. Section 913.16 is amended by removing and reserving paragraph 
(o).

[FR Doc. 97-27982 Filed 10-21-97; 8:45 am]
BILLING CODE 4310-05-M