[Federal Register Volume 64, Number 26 (Tuesday, February 9, 1999)]
[Rules and Regulations]
[Pages 6191-6201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3129]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-094-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 amendments to the Illinois regulatory program 
(Illinois program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The

[[Page 6192]]

Illinois Department of Natural Resources (Department) sent us revisions 
to the Illinois statutes pertaining to definitions and areas unsuitable 
for surface coal mining operations. The Department also proposed 
revisions to and additions of regulations concerning a definition for 
``previously mined area,'' areas unsuitable for surface coal mining 
operations, permitting, violation information, impoundments, 
explosives, revegetation, prime farmland, bonding, administrative and 
judicial review, and blasters certification. The amendments are 
intended to revise the Illinois program to be consistent with the 
corresponding Federal regulations and SMCRA, to clarify existing 
regulations, and to improve operational efficiency.

EFFECTIVE DATE: February 9, 1999.

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, 
Indiana 46204-1521. Telephone: (317-226-6700. Internet: 
[email protected].

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. 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 Proposed Amendment

    By letter dated March 28, 1996 (Administrative Record No. IL-5020), 
the Department notified us of revisions to the Illinois Surface Coal 
Mining Land Conservation and Reclamation Act (State Act) that were 
enacted through House Bill (HB) 965 and signed into law by the Governor 
of Illinois on February 7, 1996. These revisions primarily address 
changes brought about by the July 1, 1995, reorganization and name 
change of the Illinois regulatory authority. Revisions were made to 225 
ILCS 720/1/.03, Definitions; 225 ILCS 720/7.03, Procedures for 
designation of areas unsuitable for mining operations; and 225 ILCS 
720/7.04, Land Report.
    By letter dated February 26, 1998 (Administrative Record No. IL-
5009), the Department submitted a proposed amendment to revise its 
regulations at Title 62 of the Illinois Administrative Code (62 IAC). 
The amendment responded to letters dated January 6, 1997, and June 17, 
1997 (Administrative Record Nos. IL-1951 and IL-2000, respectively), 
that we sent to Illinois in accordance with 30 CFR 732.17(c). It also 
responded to required program amendments at 30 CFR 913.16(w) and (y). 
In addition, the Department amended the Illinois program to clarify 
existing regulations and to implement the statutory changes made by HB 
965.
    We announced receipt of the amendments in the April 6, 1998, 
Federal Register (63 FR 16719). 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 May 6, 1998. Because no one requested a public hearing or 
meeting, we did not hold one.
    During our review of the amendment dated February 26, 1998, we 
identified concerns relating to 62 IAC 1773.15(c)(11), written findings 
for permit application approval; 62 IAC 1778.14(c), required 
information in permit applications; 62 IAC 1816.116 and 1817.116, 
revegetation standards; 62 IAC 1816.117(c)(3) and 1817.117(c)(3), tree 
and shrub vegetation; 62 IAC 1847.3(g), burden of proof for permit 
hearings; 62 IAC 1847.9(g), burden of proof for bond release hearings; 
and editorial errors in various regulations. We notified the Department 
of these concerns by fax on June 2, 1998 (Administrative Record No. IL-
5019). By letter dated November 5, 1998 (Administrative Record No. IL-
5025), the Department sent us additional explanatory information and 
revisions to its program amendment.
    Based upon the additional explanatory information and revisions, we 
reopened the public comment period in the November 16, 1998, Federal 
Register (63 FR 63628). The public comment period closed on December 1, 
1998.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are our findings concerning the amendment.

A. Revisions to Illinois' Regulations That Are Not Substantive

    1. Throughout the amended regulation sections discussed below, the 
Department corrected typographical errors, punctuation, citation 
references, and other editorial-type errors; made minor wording 
changes; simplified its use of numbers; changed specific references of 
the ``Illinois Department of Mines and Minerals'' to the ``Illinois 
Department of Natural Resources'' to reflect a reorganization change 
which was effective July 1, 1995; changed its citation references of 
the ``Ill. Rev. Stat. 1989, ch 96\1/2\, pars. 7901.01 et seq.'' to 
``225 ILCS 720'' to reflect recodification of the Illinois Surface 
Mining Land Conservation and Reclamation Act that occurred in 1992; and 
changed all references of the ``Soil Conservation Service'' to the 
``Natural Resources Conservation Service'' to reflect that Federal 
agency's name change. The Department also made some of the same types 
of corrections and changes in 62 IAC 1764.13, 1773,11, 1774.11, 
1816.117, 1817.117, 1823.14, 1840.1, and 1850.16.
    The above proposed revisions do not alter the requirements of the 
previously approved provisions in the Illinois regulations. 
Therefore,we find that they will not make the Illinois regulations less 
effective than the Federal regulations.
    2. 62IAC 1761.12, Procedures for Areas Designated by Act of 
Congress. At subsection (b)(1), the Department removed the reference to 
section 1761.11(f) or (g). In subsection (b)(2), the Department 
replaced the reference to ``Section 1761.11(a), (f) or (g)'' with a 
reference to ``Section 1761.11(a)(6) and (7).'' At subsection (c), the 
Department replaced the reference to ``Section 1761.11(d)(2)'' with a 
reference to ``Section 1761.11(a)(4)(B).''
    We find that the revised regulation references at 62 IAC 1761.12(b) 
and (c) are consistent with the counterpart Federal regulation 
references at 30 CFR 761.12(b) and (d).
    3. 62 IAC 1774.13, Permit Revisions. At subsection (b)(3), 
references to ``62 Ill. Adm. Code 1773.13, 1773.19(b)(1) and (3) and 
1778.21'' were replaced by references to ``62 Ill. Adm. Code 1773.13, 
1773.19(a)(3)(A) and (C) and 1778.21.''
    We find that the revised regulation references at 62 IAC 
1774.13(b)(3) are consistent with the counterpart Federal regulation 
references at 30 CFR 774.13(b)(2).

[[Page 6193]]

B. Revisions to Illinois' Regulations That Are Substantively Identical 
to the Corresponding Provisions of the Federal Regulations

    The State regulations listed in the table below contain language 
that is the same as or similar to the corresponding sections of the 
Federal regulations. Differences between the State regulations and the 
Federal regulations are not substantive.

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                               State regulation 62   Federal counterpart
            Topic                      IAC           regulation--30 CFR
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Definition of Previously      1701.Appendix A.....  701.5
 Mined Area.
Violation Information.......  1778.14(c)..........  778.14(c)
Prime Farmlands.............  1785.17(e)(5).......  785.17(e)(5)
Definition of Other           1816.46(a)(3) and     701.5
 Treatment Facilities.         1817.46(a)(3).
Prime Farmland: Scope.......  1823.1..............  823.1
Prime Farmland:               1823.11.............  823.11
 Applicability.
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    Because the above revised regulations are identical in meaning to 
the corresponding Federal regulations, we find that they are no less 
effective than the Federal regulations.

C. Revisions to Illinois' Statutes and Regulations That Reflect 
Organizational Changes

    1. 225ILCS 720/1.03, Definitions; 225 ILCS 720/7.03, Procedure For 
Designation; and 225 ILCS 720/7.04, Land Report. Illinois proposed 
revisions to 225 ILCS 720/1.03, 7.03, and 7.04 of the Surface Coal 
Mining Land Conservation and Reclamation Act to reflect the merging of 
the Department of Energy and Natural Resources and the Department of 
Mines and Minerals into the Department of Natural Resources. The 
revisions include changes in the responsibility for preparing the Land 
Report that is required when processing a petition to designate an area 
as unsuitable for surface coal mining operations.
    a. 225 ILCS 720/1.03, Definitions. At section 1.03(a)(4), Illinois 
changed the definition for the term ``Department'' from the 
``Department of Mines and Minerals'' to the ``Department of Natural 
Resources.'' At section 1.03(a)(8), Illinois removed the definition of 
the term ``Department of Energy.''
    b. 225 ILCS 720/7.03, Procedure for designation. At section 
7.03(b), the language ``refer it to the Department of Energy for 
preparation of'' was replaced by the word ``prepare'' in the phrase 
``the Department shall refer it to the Department of Energy for 
preparation of a Land Report.'' At section 7.03(c), Illinois changed 
the phrase ``Such a hearing shall be held not less than 30 days after 
the Department of Energy files a Land Report with the Department'' to 
the phrase ``Such a hearing shall be held not less than 30 days after 
the Land Report has been prepared by the Department.''
    c. 225 ILCS 720/7.04, Land Report. At section 7.04(a), Illinois 
replaced the term ``Department of Energy'' with the term 
``Department.'' The language ``and referred by the Department to the 
Department of Energy for a Land Report'' was removed from the end of 
the first sentence. Illinois revised the last sentence to read: ``Each 
Land Report shall be completed not later than eight months after 
receipt of the petition.'' Illinois removed section 7.04(c), which 
required the Department of Mines and Minerals and the Department of 
Energy to enter into contracts for all or part of the costs of 
preparing land reports.
    On July 11, 1995, we approved the merger of the Illinois Department 
of Mines and Minerals into the Illinois Department of Natural Resources 
(60 FR 35696). On March 1, 1995, the Governor of Illinois signed 
Executive Order Number 2 (1995) that authorized this organizational 
change. Part IV(F) of the Executive Order required the Department of 
Natural Resources to adopt under the Illinois Administrative Procedures 
Act those rules necessary to consolidate and clarify the rules that 
will be administered by the merged departments. We find that the 
revisions to the State Act are consistent with this requirement. We 
also find that the revised requirements of 225 ILCS 720/7.03 and 7.04 
are no less stringent than the requirements of section 522 of SMCRA for 
designating areas as unsuitable for surface coal mining.
    2. 62 IAC Part 1764, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations. The Department proposed 
revisions to its regulations at 62 IAC 1764.15 to reflect the merging 
of the Department of Mines and Minerals and the Department of Energy 
and Natural Resources into the Department of Natural Resources and to 
implement the changes that were made to the State Act relating to the 
responsibility for preparing the Land Report.
    In section 1764.15(a), the Department added the heading 
``Processing of Petitions''; and in section 1764.15(c), the Department 
added the heading ``Land Report and Public Comment.'' The language in 
the first sentence of section 1764.15(c)(1) was replaced by the 
language ``After the petition is determined to be complete the 
Department shall prepare a Land Report.''
    The Department revised section 1764.15(c)(2) as follows:

    The Land Report shall state objectively the information which 
the Department has, but shall not contain a recommendation with 
respect to whether the petition should be granted or denied. Each 
Land Report shall be completed not later than eight months after the 
petitioner has been notified the petition is complete under 
subsection (a)(1).

    At section 1764.15(c)(3), the term ``Department'' replaced the term 
``Department of Energy and Natural Resources'' and the term ``Land 
Reclamation Division'' replaced the term ``Department.''
    We find that the types of revisions made to 62 IAC 1764.15 will not 
make the requirements of the Illinois regulation less effective than 
the requirements of the counterpart Federal regulation at 30 CFR 
764.15, relating to state processes for designating areas as unsuitable 
for surface coal mining operations.

D. 62 IAC Part 1773.15, Review of Permit Applications

    The Department added the following provision for written findings 
at 62 IAC 1773.15(c)(13):

    (13) For a proposed remining operation where the applicant 
intends to reclaim in accordance with the requirements of 62 Ill. 
Adm. Code 1816.116(a)(2)(B) or 1817.116(a)(2)(B), the site of the 
operation is land eligible for remining as defined in 62 Ill. Adm. 
Code 1701. Appendix A.

    In the November 27, 1995, Federal Register  (60 FR 58489), we 
stated that we interpret 30 CFR 816/817.116(c)(2)(ii) and (c)(3)(ii) as 
requiring an existing permit to obtain a permit revision to qualify for 
a reduced

[[Page 6194]]

revegetation responsibility period. This permit revision would require 
a finding that the permit covers land eligible for remining. This 
finding is in accordance with the State's counterpart to 30 CFR 
773.15(c)(13)(i). States would also need to make this permit finding 
for new permit applications that cover land eligible for remining. 
Since the Department had added reduced revegetation responsibility 
counterparts to its regulations at 62 IAC 1816.116(a)(2)(B) and 
1817.116(a)(2)(B), this requirement would apply to the Illinois 
program. In a letter dated October 30, 1997 (Administrative Record No. 
IL-2002), we notified the Department that it needed to revise its 
regulation at 62 IAC 1773.15(c) to add a counterpart to 30 CFR 
773.15(c)(13)(i). We find that the new provision at 62 IAC 
1773.15(c)(13) meets the Federal requirement discussed by us in the 
November 27, 1995, Federal Register. Also, for the purpose specified, 
it is no less effective than the Federal regulation at 30 CFR 
773.15(c)(13)(i).

E. 62 IAC 1800.40, Requirement to Release Performance Bonds

    At subsection (b)(2), the Department is requiring the permittee, 
the municipality and county in which the surface coal mining operation 
is located, the surety, or other persons with an interest in bond 
collateral who have requested notification under section 1800.21(e), 
and the persons who either filed objections in writing or objectors who 
were a party to the hearing proceedings, if any, to be notified in 
writing of its final administrative decision to release or not to 
release all or part of the performance bond.
    The counterpart Federal regulation at 30 CFR 800.40(b)(2) also 
requires the same persons, with the exception of the municipality, to 
be notified in writing. The Federal regulation at 30 CFR 800.40(e) 
requires the municipality in which the surface coal mining operation is 
located to be notified by certified mail. We notified the Department of 
this requirement on December 9, 1998 (Administrative Record No. IL-
5032). By letter dated December 18, 1998, the Department stated that it 
will send the municipality in which the surface coal mining operation 
is located written notification by certified mail at least 30 days 
before the release of all or a portion of the bond (Administrative 
Record No. IL-5035).
    Therefore, we find that the revised regulation, combined with the 
Department's letter dated December 18, 1998, is no less effective than 
the Federal regulations at 30 CFR 800.40(b)(2) and 800.40(e).

F. 62 IAC Parts 1816 and 1817, Permanent Program Performance Standards 
for Surface and Underground Mining Activities

    The Illinois permanent program regulations for surface mining 
activities at 62 IAC Part 1816 and underground mining activities at 62 
IAC Part 1817 are discussed below. Since most of the surface mining and 
underground mining regulations are identical, we are combining the 
revisions for discussion purposes, unless otherwise noted.
    1. 62 IAC 1816.49 and 1817.49, Impoundments. At sections 
1816.40(a)(3)(B) and 1817.49(a)(3)(B), the Department replaced the term 
``U.S. Soil Conservation Service'' with the term ``U.S. Natural 
Resources Conservation Service'' and changed the date of Practice 
Standard IL 378, ``Ponds'' from April 1987 to June 1992.
    The U.S. Soil Conservation Service changed its name to the U.S. 
Natural Resources Conservation Service on November 9, 1994, and made 
revisions to Practice Standard IL 378 in June 1992. Therefore, we find 
that these revisions will not make the Illinois regulations less 
effective than the Federal regulations at 30 CFR 816.49 and 817.49.
    2. 62 IAC 1817.61, Use of Explosives: General Requirements. The 
Department revised section 1817.61(a) by adding the language ``that are 
within 50 vertical feet of the original ground surface'' to the end of 
the existing provision to define the extent of the initial rounds of 
slope and shaft development. The revised provision reads as follows:

    Section 1817.61 through 1817.68 apply only to surface blasting 
activities incident to underground mining, including, but not 
limited to, initial rounds of slopes and shafts that are within 50 
vertical feet of the original ground surface.

    The counterpart Federal regulation at 30 CFR 817.61(a) does not 
define the extent of ``initial rounds of slopes and shafts.'' We added 
section 817.61 to our regulations to protect the lives and property of 
the public, underground mines, and ground and surface waters outside of 
the permit areas where surface blasting is required in the development 
and support of underground mining operations (43 CFR 41780). We found 
in a technical review of the revised Illinois regulation that 62 IAC 
1817.61(a) is essentially the same as the Federal counterpart at 30 CFR 
817.61(a) except that the State defines the extent of the initial 
rounds of slope and shaft development as those ``that are within 50 
vertical feet of the original ground surface.'' Neither the Federal 
rule nor the associated preambles (43 FR 41780 and 44 FR 15269) 
directly include or address the vertical extent of the initial blasting 
rounds in slope and shaft development. We clearly intended that section 
817.61 through 817.68 apply only to surface blasting activities 
incident to underground mining, including construction of initial 
rounds of slopes and shafts. It was our ``intent not to regulate 
blasting performed underground, because this activity is adequately 
controlled by MSHA'' (44 FR 15269). Considering this intent and the 
generally small amount of blasting activities associated with slope and 
shaft development, the 50-foot vertical extent proposed by the 
Department is a reasonable interpretation of ``initial blasting rounds 
of slope and shaft development'' and is adequate to protect the public 
from the adverse effects of these blasts. Therefore, we find that the 
revised Illinois regulation at 62 IAC 1817.61(a) is no less effective 
than the Federal counterpart regulation at 30 CFR 817.61(a).
    3. 62 IAC 1817.62, Use of Explosives: Pre-Blasting Survey. In the 
first sentence of section 1817.62(d), the Department replaced the 
language ``published scheduled beginning'' with the language ``planned 
initiation.'' The revised sentence reads as follows:

    Any surveys requested more than ten calendar days prior to the 
planned initiation of blasting shall be completed by the operator 
before the start of blasting.

    The revised Illinois provision at 62 IAC 1817.62(d) is 
substantively the same as the counterpart Federal regulation at 30 CFR 
817.62(e). Therefore, we find that 62 IAC 1817.62(d) is no less 
effective than the counterpart Federal regulation.
    4. 62 IAC 1816.64, Use of Explosives: Public Notice of Blasting 
Schedule. a. The Department added the following sentence to the end of 
62 IAC 1816.64(b): ``Unscheduled blasting does not include nighttime 
blasting, which is prohibited at all times.'' The Department proposed 
this language to emphasize its restriction of nighttime blasting and to 
clarify that blasting is not allowed after sunset.
    The counterpart Federal regulation at 30 CFR 816.64(a)(3) does not 
contain this clarification, but 30 CFR 816.64(a)(2) allows 
discretionary authority to the regulatory authority relating to 
nighttime blasting and time periods for blasting. Therefore, we find 
that the revised Illinois regulation at 62 IAC 1816.64(b) is no less 
effective than the counterpart Federal regulation.
    b. At 62 IAC 1816.64(c)(1), the Department requires publication of 
a blasting schedule at least ten days, but

[[Page 6195]]

not more than 30 days, before beginning a blasting program in which 
blasts that use more than five pounds of explosive or blasting agent 
are detonated. The currently approved language requires that operators 
publish the blasting schedule at least 30 days but not more than 60 
days before blasting starts.
    We find that the revised regulation requirements at 62 IAC 
1816.64(c)(1) are consistent with and no less effective than the 10-day 
and 30-day requirements at 30 CFR 816.64(b)(1).
    c. At 62 IAC 1816.64(c)(3), the Department requires operators to 
revise and republish blasting schedules at least 10 days, but not more 
than 30 days, before blasting in areas not covered in the current 
schedule or if the actual blasting times differ from the time periods 
listed in the current schedule for more than 20 percent of the blasts 
fired. The currently approved language requires that operators 
republish the blasting schedule at least 30 days but not more than 60 
days before blasting in the specified areas.
    We find that the revised regulation requirements at 62 IAC 
1816.64(c)(3) are consistent with and no less effective than the 10-day 
and 30-day requirements at 30 CFR 816.64(b)(3).
    d. The Department revised 62 IAC 1816.64(d) by changing the 
subsection introductory sentence to ``The blasting schedule shall 
contain at a minimum''; removing existing paragraphs (1) and (2); and 
redesignating paragraphs (2)(A) through (2)(E) as paragraphs (1) 
through (5).
    We find that the revised Illinois regulation at 62 IAC 1816.64(d) 
is consistent with and no less effective than the counterpart Federal 
regulation at 30 CFR 816.64(c).
    5. 62 IAC 1816.66 and 1817.66, Use of Explosives: Blasting Signs, 
Warnings, and Access Control. a. In the second sentence of 62 IAC 
1817.66(b), the Department replaced the language ``blasting schedule'' 
with the language ``blasting notification required in Section 
1817.64.'' The Department proposed this revision in order to ensure 
consistent terminology and wording throughout its regulations.
    We find that the revised regulation language at 62 IAC 1817.66(b) 
is consistent with and no less effective than the counterpart Federal 
language at 30 CFR 817.66(b).
    b. At sections 1816.66(d)(2) and 1817.66(d)(2), concerning blasting 
prohibitions, the Department added the language ``unless a waiver is 
obtained from the owner of the facility and submitted to the Department 
prior to blasting within 100 feet'' at the end of these provisions. The 
revised provisions read as follows:

    Blasting shall not be conducted within 100 feet of facilities 
including, but not limited to, disposal wells, petroleum or gas 
storage facilities, municipal water storage facilities, fluid-
transmission pipelines, or water and sewage lines unless a waiver is 
obtained from the owner of the facility and submitted to the 
Department prior to blasting within 100 feet.

    The proposed revisions allow the owner of a utility to waive the 
set-back distance of 100 feet. There are no Federal counterparts to the 
previously approved blasting prohibitions at 62 IAC 1816.66(d)(2) and 
1817.66(d)(2). However, the Federal regulations at 30 CFR 816.64(a) and 
817.64(a) allow the regulatory authority to limit the area covered, 
timing, and sequence of blasting as listed in the schedule, if such 
limitations are necessary and reasonable in order to protect the public 
health and safety or welfare. We find that the addition of a waiver 
clause to the Illinois regulations at 62 IAC 1816.66(d)(2) and 
1817.66(d)(2) will not make them less effective than the Federal 
requirements for blasting.
    6. 62 IAC 1816.67 and 1817.67, Use of Explosives: Control of 
Adverse Effects. a. The Department restructured the provisions of 62 
IAC 1816.67(c)(1) and 1817.67(c)(1), concerning air blast monitoring, 
by moving the language of paragraphs (1)(A) and (1)(B) to paragraph 
(1).
    The revised provision at section 1816.67(c)(1) reads as follows:

    When the cube root scaled distance, as defined in subsection 
(c)(2), to the nearest dwelling, public building, school, church, or 
commercial or institutional structure has a value less than 350 and 
when the burden to hole depth ratio is greater than 1.0, or the top 
stemming height is less than 70% of the burden dimension, the air 
blast produced by that blast shall be measured, recorded, analyzed, 
and reported pursuant to subsection (g) and section 1816.68(b). This 
subsection shall not apply to horizontal blast holes drilled from 
the floor of the pit.

    The revised provision at section 1817.67(c)(1) reads as follows:

    When the cube root scaled distance, as defined in subsection 
(c)(2), to the nearest dwelling, public building, school, church, or 
commercial or institutional structure has a value less than 350 and 
when the burden to hole depth ratio is greater than 1.0, or the top 
stemming height is less than 70% of the burden dimension, the air 
blast produced by that blast shall be measured, recorded, analyzed, 
and reported pursuant to subsection (g) and section 1817.68(b).

    We find that the proposed revisions to 62 IAC 1816.67(c)(1) and 
1817.67(c)(1) are editorial in nature and do not change the meaning of 
the previously approved language.
    b. At 62 IAC 1816.67(e) through (h) and 1817.67(e) through (h), 
concerning ground vibrations, the Department numbered the existing 
provision in subsection (e) as subsection (e)(1); redesignated 
subsection (f) as subsection (e)(2); redesignated subsections (f)(1) 
and (f)(2) as subsections (e)(2)(A) and (e)(2)(B); and redesignated 
existing paragraphs (g) and (h) as paragraphs (f) and (g). Minor 
wording changes were made to redesignated subsection (e)(2), and the 
revised provision reads as follows:

    Blasting shall be conducted to prevent adverse impacts on any 
underground mine and changes in the course, channel, or availability 
of ground or surface water outside the permit area. Ground vibration 
limits, including the maximum peak particle velocity limitation of 
subsection (e)(1), shall not apply at the following locations:

    We find that the reformatting of 62 IAC 1816.67(e), (f), and (g) 
and 1817.67(e), (f), and (g), is editorial in nature. The proposed 
language changes to redesignated subsection (e)(2) clarify the intent 
of this previously approved provision. Therefore, we find that the 
revised provisions at 62 IAC 1816.67(e)(2) and 1817.67(e)(2) are no 
less effective than the counterpart Federal provisions at 30 CFR 
816.67(a) and (e) and 817.67(a) and (e).
    7. 62 IAC 1816.83 and 1817.83, Coal Mine Waste: Refuse Piles. The 
Department revised 62 IAC 1816.83(c)(4) and 1817.83(c)(4) by adding the 
following new provision at the end of each:

    The Department shall require the addition of neutralization 
material to be added to the coal mine waste if, based on physical 
and chemical analyses, this material is needed to prevent acid mine 
drainage. This subsection is also applicable to the reclamation of 
fine coal waste (slurry) not meeting the definition of refuse piles.

    The new provision was added to clarify that the Department has the 
authority to require acid neutralization before the waste is covered 
with four feet of the best available material and that coal waste 
deposited in slurry ponds is subject to treatment and/or coverage 
requirements. The counterpart Federal regulations at 30 CFR 
816.83(c)(4) and 817.83(c)(4) do not contain the proposed language. 
However, we determined that the requirement to add neutralization 
material for the prevention of acid mine drainage is consistent with 
the Federal regulation requirements at 30 CFR 816.81(a)(1) and 
817.81(a)(1) to minimize adverse effects of leachates on surface and 
ground water quality. Therefore, we are approving the new

[[Page 6196]]

provision at 62 IAC 1816.83(c)(4) and 1817.83(c)(4).
    8. 62 IAC 1816.116 and 1817.116, Revegetation: Standards for 
Success.
    a. 62 IAC 1816.116(a)(2)(F) and 1817.116(a)(2)(F), Success of 
Revegetation: Augmentation.
    In response to the required amendment at 30 CFR 913.16(w), the 
Department deleted its provisions at 62 IAC 1816.116(a)(2)(F)(i) and 
1817.116(a)(2)(F)(i) that allowed deep tillage without restarting the 
five-year period of responsibility on pasture, hayland, and grazing 
land areas where the operator had met the revegetation success 
standards.
    We disapproved these provisions and required the Department to 
remove them from the Illinois regulations on May 29, 1996 (61 FR 
26801). We find that the removal of these provisions is a satisfactory 
response to the required amendment codified at 30 CFR 913.16(w), and we 
are removing the required amendment from the Illinois program.
    b. 62 IAC 1816.116(a)(2)(G) and 1817.116(a)(2)(G), Success of 
Revegetation: Other Management Practices.
    The Department added the following new revegetation provisions at 
62 IAC 1816.116(a)(2)(G) and 1817.116(a)(2)(G):

(G) Other Management Practices

    The Department shall approve the use of deep tillage for prime 
farmland and high capability land as a beneficial practice that will 
not restart the 5 year period of responsibility, if the following 
conditions are met:
    (i) The Permittee has submitted a request to use the practice 
and has identified the field that will be deep tilled;
    (ii) One or more hay crops, or other acceptable row crops, have 
been grown or will be grown to dry out the subsoil prior to deep 
tilling the field; and
    (iii) The Department has determined that the use of deep tillage 
will be beneficial to the soil structure and long term crop 
production of the field and the benefits will continue well beyond 
the responsibility period.
    The Department shall notify the permittee in writing of its 
decision. Such written notice shall be in the form of an inspection 
report or other document issued by the Department.

    By letter dated June 15, 1998 (Administrative Record No. IL-5024), 
the Department submitted both legal rationale explaining why the 
Department believes the amendment is approvable and technical 
rationale, with supporting documentation, explaining why the amendment 
would promote better reclamation by encouraging a beneficial practice 
at optimum timing. The technical rationale will be discussed first.
    The technical rationale addresses two aspects, the beneficial 
nature of deep tillage with long lasting benefits and the timing of 
deep tillage. The Department provided the following explanation of why 
it believes that deep tillage is a beneficial practice with long 
lasting results.

    In Illinois, in areas of a cropland postmining land use, the 
normal practice after topsoil replacement is to plant the land into 
wheat then hay or directly into hay. This practice is the initial 
planting of areas of long-term intensive agriculture which also 
includes crop rotations with corn and soybeans, and historically has 
been considered the beginning of the responsibility period.
    The Department believes that the enclosed technical data 
demonstrates that deep tillage is a beneficial practice, its 
benefits are increased after one or more hay crops, and its benefits 
are long lasting. Deep tillage is universally accepted within the 
scientific and mining community as beneficial for soil structure. 
Also, these benefits are long lasting beyond any responsibility 
period. In the event that an operator has made successful yield(s) 
prior to deep tillage, the operator and landowner should not be 
penalized for going beyond the performance standards and improving 
the soil within the responsibility period. The Department is 
submitting a publication ``Deep Tillage Effects on Compacted 
Surface-Mined Land,'' Soil Sci., Soc. Am. J. 59:192-199 (1995) and 
supplemental information ``Long Term Effects of Deep Tillage'' 
(Second Annual Report, SIU, U of I Cooperative Reclamation Research 
Station, March 1996, used with permission from the author). The data 
reveals that the positive effects of deep tillage, reduced soil 
strength and improved yields, have persisted up to eight years to 
date. The data also revealed no disproportionate increase in yield 
the first year after deep tillage compared to the following years. A 
tour of the study area this year, indicates this trend will likely 
continue. A second report ``Profile Modification of a Fragiudalf to 
Increase Production'' Soil Sci. Soc. Am. J. Vol 41, 1997, pp 127-
131, concluded that even after 16 years there was no reformation of 
the original soil density or soil strength problems which had been 
removed by a form of deep tillage and mixing.

    The technical documents that the Department submitted successfully 
demonstrate that a one-time application of deep tillage is beneficial 
to reconstructed mined soils by increasing water movement and aeration 
and eliminating high soil strength, with a resulting increase in crop 
yields. We agree with the Department's assessment that the publication 
``Deep Tillage Effects on Compacted Surface-Mined Land,'' Soil Sci., 
Soc. Am. J. 59:192-199 (1995) and supplemental information ``Long Term 
Effects of Deep Tillage'' (Second Annual Report, SIU, U of I 
Cooperative Reclamation Research Station, March 1996) prove that the 
positive effects of deep tillage, reduced soil strength and improved 
yields, persisted through the first eight years of the study. We also 
find that the data show no unusual increase in yield the first year 
after deep tillage compared to the following years. This study showed 
that deep tillage significantly affected crop yield, soil strength, and 
net water extracted by growing crops. It showed that average soil 
strength decreased with increasing tillage depth and that corn and 
soybean yields increased with increasing tillage depth within and 
across years. The 1995 publication documented that crop yields 
comparable to the undisturbed site were achieved on the deepest tilled 
sites in 5 out of 6 years for corn and 4 out of 4 years for soybeans 
for the years 1988 through 1993.
    The Department provided further explanation of why the benefits are 
maximized if soils are deep tilled after one or more hay crops, or 
other acceptable row crops, are grown.

    The practice of hay cropping the cropland in advance of deep 
tillage is a typical management practice on most mined ground. This 
practice is promoted in ``Deep Tillage Effects on Mine Soils and Row 
Crop Yields,'' Proc. 1987, Lexington, Dec. 7-11, 1987, p. 181. An 
additional citation on this issue includes ``Compaction Related to 
Prime Farmland Reclamation,'' AMC conference April 29-May 3, 1984, 
by D.S. Ralston. The initial hay cropping helps to dry the subsoil 
down in order to increase the effectiveness of the shattering effect 
of the deep tillage. In addition, this concept was promoted at the 
1998 Prime Farmland Interactive Forum, in Evansville, Indiana.

    The referenced technical publications document that planting and 
managing hay crops, or other acceptable row crops, after reclamation to 
allow some initial settling and to obtain a drier subsoil should be 
done before deep tilling the soils. One publication considered it 
essential that the reclaimed soil be dry for good shattering action of 
the rooting media. On the study areas referenced in the 1995 
publication, alfalfa was seeded and managed during 1986 and 1987 before 
tilling the various test plots in the late summer of 1987.
    The Department provided the following legal rationale to support 
its belief that the proposed provision is approvable under SMCRA:

    Section 515(b)(20) outlines the initiation of the responsibility 
period as ``after the last year of augmented seeding, fertilizing, 
irrigation, or other work: Provided, that when the regulatory 
authority approves a long-term intensive agricultural postmining 
land use, the applicable five- or ten-year period of responsibility 
for revegetation shall commence at the date of initial planting for

[[Page 6197]]

such long-term intensive agricultural postmining land use.''
    A reading of the above wording leads us to conclude that under a 
cropland postmining land use, the responsibility period starts at 
the time of initial planting and is independent of any augmentative 
seeding, irrigation, etc., use to facilitate the establishment of 
the permanent vegetative cover required under section 515(b)(19).
    This interpretation is further clarified by a reading of the 
Illinois statute, Surface Coal Mining Land Conservation and 
Reclamation Act, which was approved by the Secretary as no less 
stringent than the Federal statute, SMCRA. In the Illinois statute, 
Section 3.15(b) identifies the start of the responsibility period as 
after the last year of augmented seeding, fertilizing, irrigation, 
or other work. A separate Section 3.15(c) clarifies the 
responsibility period for long-term intensive agricultural areas 
starts at the date of initial planting for the agricultural use.

    Historically, deep tillage has been considered an augmentative 
practice. Under 30 CFR 816.116(c) and counterpart state regulations, 
augmentative practices restart the liability period for cropland. With 
the above explanation, the Department is taking the position that the 
question of whether or not deep tillage is augmentative is irrelevant 
because the limitation on augmentative practices in SMCRA and State law 
does not apply to lands with a long-term intensive agricultural 
postmining land use. In its letter, the Department did state that it 
``will ensure that all other management, e.g., seeding, fertilizing, 
etc., are at comparable levels as the surrounding agricultural lands.'' 
This statement is consistent with the Illinois regulations at 62 IAC 
1823.15(b)(3), 62 IAC 1816.116(a)(3)(C), and 1817.116(a)(3)(C).
    The criteria for judging proposed state regulations is that they be 
no less effective than the Federal regulations and no less stringent 
that SMCRA. Based on the Department's technical rationale discussed 
above, we find that the proposed rule is no less effective than the 
Federal regulations and no less stringent than SMCRA. The Department 
has provided clear rationale for why deep tillage is a beneficial 
practice and why it is best to delay deep tillage until after one or 
more crops have been harvested. Therefore, we agree that the issue of 
augmentation is not relevant to the deep tillage provision proposed in 
this rulemaking. The Department has provided sufficient technical 
documentation to support the practice of deep tillage when implemented 
under the conditions imposed in the proposed regulations at 62 IAC 
1816.116(a)(2)(G) and 1817.116(a)(2)(G).
    The Department's expressed purpose for the proposed provision is 
``the allowance for the use of productivity data which was obtained 
prior to deep tillage on cropland.'' The Department explained why it 
believes that operators should be allowed to use productivity data that 
was obtained before deep tillage on cropland:

    The existing concept of deep tillage restarting the 
responsibility period is a significant deterrent to this universally 
beneficial reclamation practice in that it discourages operators 
from implementing it at the most efficient time, or from 
implementing it at all, if they are successful in achieving 
productivity on one or more crops and don't want to start over.
    The Department believes the above proposal provides the maximum 
benefit toward reclaiming the land as soon as practical, and is in 
fact more effective than the Federal regulations and no less 
stringent than the Federal statute because it will encourage rather 
than impede a beneficial practice. The above also meets the intent 
that long-term probability of productivity on cropland is being 
achieved and that land is reclaimed as contemporaneously as 
possible.

    We have historically recognized that deep tillage alleviates 
compaction (30 CFR 823.14(d); 48 FR 21452, 21457, May 12, 1983). The 
Department has now demonstrated and we agree that deep tillage of the 
reclaimed soils of Illinois, under the conditions discussed above, is a 
beneficial practice that should not restart the responsibility period.
    Because it will not restart the responsibility period, deep tillage 
will not affect the collection of crop production data. Therefore, 
successful yields of hay crops or other acceptable row crops that are 
obtained during the responsibility period, even when they are obtained 
before deep tillage, may be counted toward achieving productivity on 
prime farmland and high capability land.
    OSM has always maintained that the primary responsibility for 
regulating surface coal mining and reclamation operations should rest 
with the States. The Federal regulations for revegetation were 
specifically written to allow States to account for regional diversity 
in terrain, climate, soils, and other conditions where mining occurs.
    Based on the above discussions, we find that the proposed 
revegetation requirements at 62 IAC 1816.116(a)(3)(G) and 
1817.116(a)(3)(G) will not make the Illinois regulations less stringent 
than the requirements of section 515 of SMCRA or less effective than 
the requirements of 30 CFR Parts 823, 816, and 817 of the Federal 
regulations for revegetation of mined lands. Therefore, we are 
approving the Department's proposed regulations.
    c. 62 IAC 1817.116(a)(3)(E), Success of Revegetation: Pasture and/
or Hayland or Grazing Land.
    At 62 IAC 1817.116(a)(3)(E), the Department removed the language 
``Production for proof of productivity purposes shall also be 
determined in accordance with Section 1817.117(a)(2).''
    Section 1817.116(a)(3)(E) concerns standards for revegetation 
success for areas designated as pasture and/or hayland or grazing land. 
Section 1817.117(a)(2) concerns the use of trees and shrubs populations 
in determining the success of revegetation for areas to be developed 
for fish and wildlife habitat, recreation, or forest products land 
uses. Therefore, we find that the removal of this reference to the 
Department's tree and shrub vegetation standards for fish and wildlife 
habit, recreation, or forest products land uses will not make the 
Illinois regulation less effective than the counterpart Federal 
regulation at 30 CFR 817.116(b)(1) concerning standards for 
revegetation success for grazing land or pasture land.
    d. 62 IAC 1816.116(a)(4)(ii), Success of Revegetation: Use of the 
Agricultural Lands Productivity Formula.
    In response to the required amendment at 30 CFR 913.16(y), the 
Department deleted the following language from 62 IAC 
1816.116(a)(4)(ii):

    The Department may approve a field to represent non-contiguous 
areas less than or equal to four acres of the same capability if it 
determines that the field is representative of reclamation of such 
areas. These areas shall be managed and vegetated in the same manner 
as the representative field.

    We disapproved this provision and required the Department to remove 
it from the Illinois regulations on May 29, 1996 (61 FR 26801). We find 
that the removal of this provision is a satisfactory response to the 
required amendment codified at 30 CFR 913.16(y), and we are removing 
the required amendment from the Illinois program.

G. 62 IAC 1823.12, Prime Farmland: Soil Removal

    The Department added a new provision at 62 IAC 1823.12(c) that 
allows the B and/or C horizons to be left in place for surface 
disturbance areas if the Department determines the soil capability can 
be retained.
    By letter dated June 17, 1997 (Administrative Record No. IL-2000), 
we notified the Department of changes made to the Federal regulation at 
30 CFR 823.12(c)(2). The Federal regulation allows the regulatory 
authority to approve exceptions from the requirement to remove B and C 
soil

[[Page 6198]]

horizons where they would not otherwise be removed by mining activities 
and where soil capabilities can be retained. We find that the proposed 
Illinois regulation is no less effective than the counterpart Federal 
regulation.

H. 62 IAC 1825.11, High Capability Lands: Special Requirements

    The Department added the following requirement at section 
1825.11(c): ``Measurement of success of revegetation shall be initiated 
within ten (10) years after completion of backfilling and final grading 
on high capability land.'' The Department proposed this revision to 
require operators to initiate crop testing on high capability land 
under the same time frame requirements as prime farmland because to 
their similarities.
    There are no direct Federal counterparts to the Illinois high 
capability land provisions. However, we find that this proposal is not 
inconsistent with the Federal requirements for revegetation and 
restoration of soil productivity on prime farmland at 30 CFR 
823.15(b)(1) or the Federal requirements for revegetation at 30 CFR 
816.116 and 817.116.

I. 62 IAC 1840.11, Inspections by the Department

    The Department clarified its inspection requirements by proposing 
revisions to subsections (a) and (b). Subsection (a) was revised to 
require the Department to conduct an average of a least one partial 
inspection per month at each active surface coal mining and reclamation 
operation. Subsection (b) was revised to require the Department to 
conduct an average of at least one complete inspection per calendar 
quarter at each active or inactive surface coal mining and reclamation 
operation.
    The counterpart Federal regulation at 30 CFR 840.11(a) requires the 
State regulatory authority to conduct an average of a least one partial 
inspection per month at each active surface coal mining and reclamation 
operation under its jurisdiction. The counterpart Federal regulation at 
30 CFR 840.11(b) requires the State regulatory authority to conduct an 
average of at least one complete inspection per calendar quarter at 
each active or inactive surface coal mining and reclamation operation 
under its jurisdiction. Therefore, we find that the revised Illinois 
requirements at 62 IAC 1840.11 (a) and (b) are consistent with the 
Federal requirements for inspections by State regulatory authorities at 
30 CFR 840.11 (a) and (b).

J. 62 IAC 1847, Administravie and Judicial Review

    1. 62 IAC 1847.3, Hearings. Section 1847.3 provides procedures for 
hearings on exploration applications, new permits, permit revisions, 
permit renewals, permit rescissions or transfers, assignments, or sales 
of permit rights. The procedures also apply to conflict of interest 
hearings, valid existing right determinations, exemption 
determinations, formal reviews of decisions not to inspect or enforce, 
hearings for permits for special categories of mining, and challenges 
of ownership or control links. At subsection (g), the Department 
replaced its existing burden of proof provision with the following 
provisions:

    (1) In a proceeding to review a decision on an application for a 
new permit:
    (A) If the permit applicant is seeking review, the Department 
shall have the burden of going forward to establish a prima facie 
case as to the failure to comply with the applicable requirements of 
the State Act or regulations or as to the appropriateness of the 
permit terms and conditions, and the permit applicant shall have the 
ultimate burden of persuasion as to entitlement to the permit or as 
to the inappropriateness of the permit terms and conditions.
    (B) If any other person is seeking review, that person shall 
have the burden of going forward to establish a prima facie case and 
the ultimate burden of persuasion by a preponderance of the evidence 
that the permit application fails in some manner to comply with the 
applicable requirements of the State Act or regualtions.
    (2) In all other proceedings held under this Section, the party 
seeking to reverse the Department's decision shall have the burden 
of proving by a preponderance of evidence that the Department's 
decision is in error.

    The proposed Illinois provision at 62 IAC 1847.3(g)(1) is 
consistent with and no less effective than the Federal burden of proof 
provision for new permits at 43 CFR 4.1366(a). The proposed Illinois 
provision at 63 IAC 1847.3(g)(2) for all otehr proceedings covered by 
this section is consistent with the Federal burden of proof provisions 
at 43 CFR 4.1366, 4.1374, 4.1384, and 4.1394 for permit actions, 
ownership and control determiniations, and valid existing right 
determinations. All of these expressly or in other language provide for 
a preponderance of the evidence standard. Therefore, we are approving 
62 IAC 1847.3(g).
    2. 62 IAC 1847.9, Bond Release hearings: Burden of Proof. At 
subsection (g), the Department revised its burden of proof provision by 
requiring that ``the party seeking to reverse the Department's proposed 
release of bond shall have the burden of providing by a preponderance 
of evidence that the Department's decision is in error.''
    The traditional Federal burden of proof for civil or administrative 
proceedings is proof by a preponderance of the evidence. As discussed 
in the above finding, administrative hearings under 43 CFR Part 4 
expressly or in other language provide for a preponderance of the 
evidence standard. Therefore, we are approving the revision to 62 IAC 
1847.9(g).
    3. 63 IAC 1847.9(j) and (k), Bond Release Hearings: Written 
Exceptions. The Department revised 62 IAC 1847.9(j) and (k) to clarify 
that the final decision of the Department in administrative review 
hearings for bond release is made by the hearing officer and not the 
Director of the Department of Natural Resources. The Department also 
proposed to change the time limits for filing and responding to written 
exceptions from 15 to 10 days and the time limits for issuance of a 
final administrative decision by the hearing officer from 15 to 10 days 
if no written exceptions are filed. Specifically, the Department 
proposed the following changes:
    At section 1847.9(j), the Department is allowing each party to the 
hearing to file written exceptions with the hearing officer within ten 
days after service of the hearing officer's proposed decision. All 
parties shall then have ten days after service of written exceptions to 
file a response with the hearing officer.
    At section 1847.9(k), the Department revised the existing provision 
to read as follows:

    If no written exceptions are filed, the hearing officer's 
proposed decision shall become final ten days after service of such 
decision. If written exceptions are filed, the hearing officer shall 
within 15 days following the time for filing a response thereto, 
either issue his final administrative decision affirming or 
modifying his proposed decision, or shall vacate the decision and 
remand the proceeding for rehearing.

    The Federal regulations specify general adjudicatory provisions 
that States must include in their administrative review hearing 
procedures, but allow the States discretion in how to implement these 
provisions. This would include the determination of who shall make 
final administrative hearing decisions. Therefore, we find that the 
designation of a hearing officer to make final administrative hearing 
decisions does not make the Illinois regulations less effective than 
the Federal regulations. The Federal regulations contain no comparable 
provisions to those being revised concerning filing of written 
exceptions to a hearing officer's

[[Page 6199]]

decision, time limits for filing written exceptions and responses to 
exceptions, and time limits for issuance of a final administrative 
decision. However, we find that the proposed regulations at 62 IAC 
1847.9(j) and (k) add clarity and specificity to the State program and 
are not inconsistent with SMCRA or the Federal regulations.

K. 62 IAC Part 1850, Training, Examination and Certification of 
Blasters

    1. At section 1850.13(a), the Department may also provide the 
necessary training required for blaster certification. This change 
allows the Department or the operator or his representative to conduct 
blasters training.
    The counterpart Federal regulation at 30 CFR 850.13(a) requires the 
regulatory authority to provide training for persons seeking to become 
certified as blasters. The Federal regulation allows the regulatory 
authority to establish the procedures to implement this requirement. 
Therefore, we find that the revised Illinois regulation at 62 IAC 
1850.13(a) is no less effective than the Federal regulation at 30 CFR 
850.13(a).
    2. At 62 IAC 1850.14(a) and (b), the Department is revising its 
provisions for scheduling examinations and reexaminations for 
certification. Specifically, sections 1850.14(a) and (b) were revised 
to read as follows:

    (a) Written examinations for blaster certification shall be 
administered on dates, times, and at locations announced by the 
Department via direct communication with operators and individuals 
who request in writing to be so notified. All persons scheduled for 
a regular examination session will be so notified at least one week 
prior to the scheduled exam date.
    (b) Reexaminations shall be scheduled, if needed, for those 
persons who do not pass the regularly scheduled examination. The 
Department shall also allow for examination at this time of those 
persons who have newly applied for certification. All persons 
scheduled for examination or reexamination during the reexamination 
session will be so notified at least one week prior to the scheduled 
reexamination session.

    The Federal regulations at 30 CFR 850.14 require the regulatory 
authority to ensure that candidates for blaster certification are 
examined. The Federal regulations at 30 CFR 850.13 require the 
regulatory authority to establish the procedures to implement this 
requirement. We find that the Department's proposed procedures will 
ensure candidates for blaster certification are examined as required by 
the Federal regulations. Therefore, we are approving the revisions at 
62 IAC 1850.14(a) and (b).
    3. The Department revised section 1850.15(a), concerning 
application and certification, to read as follows:

    Each applicant shall submit a completed application for 
certification on forms supplied by the Department. Any applicant 
whose completed application has been received, reviewed and accepted 
by the Department prior to a regularly scheduled examination session 
shall be scheduled for that session. The following documents shall 
be included with the completed application form:

    The Federal regulations at 30 CFR 850.15 require the regulatory 
authority to certify candidates for blaster certification. The Federal 
regulations at 30 CFR 850.13 require the regulatory authority to 
establish the procedures to implement this requirement. We find that 
the Department's procedures at 30 CFR 850.15 will ensure candidates for 
blaster certification are certified as required by the Federal 
regulations. Therefore, we are approving the revisions to 62 IAC 
1850.15(a).

IV. Summary and Disposition of Comments

Public Comments

    In Federal Register notices dated April 6 and November 16, 1998, we 
requested public comments on the proposed amendment and revisions to 
the amendment (63 FR 16719 and 63 FR 63628, respectively).
    By letter dated April 10, 1998, we received comments regarding the 
Illinois regulation at 62 IAC 1778.14 (Administrative Record No. IL-
5013). Then, by letters dated April 30 and May 6, 1998, we received 
comments concerning the Illinois regulations at 62 IAC Part 1847 for 
administrative hearings (Administrative Record Nos. IL-5016 and IL-
5017, respectively).
    The first commenter objected to the proposed revisions to 62 IAC 
1778.14(c), concerning violation information, that were included in the 
February 26, 1998, proposed amendment. The commenter objected because 
the revised regulation did not limit the violation information 
requirements to operations owned or controlled by the applicant. The 
commenter stated that the language proposed is identical to the 
language of the Federal rules struck down by the United States Court of 
Appeals for the District of Columbia Circuit in National Mining 
Association v. U.S. Dept. of Interior, 105 F 3d 691 (D.C. Cir. 1997). 
The commenter also noted that the proposed language appeared to be 
missing pertinent punctuation and language. In its November 5, 1998, 
revised amendment, the Department changed its proposed regulation at 62 
IAC 1778.14(c) to limit the violation information requirements to 
operations owned or controlled by the applicant and added applicable 
missing punctuation and language. As noted in finding III.B., the 
revised Illinois regulation is substantively identical to the 
counterpart Federal regulation at 30 CFR 778.14(c).
    One commenter objected to the Department's proposed burden of proof 
provision at 62 IAC 1847.3(g)(1) that provides different burdens for 
the permit applicant and the non-permit applicant for administrative 
review of new permits. As discussed in finding III.J.1., the proposed 
provision is no less effective than the counterpart Federal regulation 
provision at 43 CFR 4.1366(a), which also provides different burdens 
for the permit applicant and the non-permit applicant for 
administrative review of new permits.
    Two commenters objected to the Department's burden of proof 
provisions at 62 IAC 1847.3(g)(2) and 1847.9(g) that provided for a 
``clearly erroneous'' standard for administrative review of a variety 
of hearing actions and bond release actions, respectively. In its 
November 5, 1998, revised amendment, the Department changed the burden 
of proof to a ``preponderance of evidence'' standard in both of these 
provisions (Administrative Record No. IL-5025). As discussed in 
findings III.J. 1. and 2., both provisions are now consistent with the 
Federal burden of proof standards at 43 CFR Part 4 for administrative 
hearings.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendments from various Federal agencies with an actual or potential 
interest in the Illinois program (Administrative Record Nos. IL-5010 
and IL-5026).
    On April 2, 1998, the U.S. Natural Resources Conservation Service 
commented that the reference to the ``U.S. Natural Resources 
Conservation Service Practice Standard 378, `Pond,' April 1987'' in 62 
IAC 1816.49(a)(3)(B) and 1817.49(a)(3)(B) should be changed to 
``Practice Standard IL 378 `Ponds,' June 1992'' (Administrative Record 
No. IL-5011).
    As discussed in finding III.F.1., the Department made this change 
in its November 5, 1998, revised amendment.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to get the written 
consent of the EPA for those provisions of the program amendment that 
relate to air or water quality standards published under

[[Page 6200]]

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 the Department proposed to make in this 
amendment pertain to air or water quality standards. Therefore, we did 
not request the EPA's consent.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendments from the EPA (Administrative Record Nos. IL-5010 and IL-
5026). The EPA did not respond to either 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 March 27 and November 6, 1998, we requested comments 
from the SHPO and ACHP on the Illinois amendments (Administrative 
Records Nos. IL-5010 and IL-5026, respectively), but neither respondend 
to our requests.

V. Director's Decision

    Based on the above findings, we approve the amendments submitted by 
the Department on March 28, 1996, and February 26, 1998, and as revised 
on November 5, 1998.
    We approve the regulations and statutes that the Department 
proposed with the provision that they be placed in force in identical 
form to the regulations and statutes submitted to and reviewed by OSM 
and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 913, which codify decisions concerning the Illinois 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Illinois 
to bring its program into conformity with the Federal standards. SMCRA 
requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866

    The Office of Management and Budget (OMB) exempts this rule from 
review 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 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 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

    This rule does not require an environmental impact statement since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on 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 rules 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. Therefore, this rule will ensure that existing requirements 
previously published 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 under 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: January 25, 1999.
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.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
March 28, 1996 and February 26, 1998.  February 9, 1999.......  225 ILCS 720/1.03, 7.03, and 7.04; 62 IAC 1701.
                                                                 Appendix A; 1761.12; 1764.13 and .15; 1773.11
                                                                 and .15; 1774.11 and .13; 1778.14; 1785.17;
                                                                 1800.40; 1816.46, .49, .64, .66, .67, .83,
                                                                 .116, and .117; 1817.46, .49, .61, .62, .66,
                                                                 .67, .83, .116, and .117; 1823.1, .11, .12, and
                                                                 .14; 1825.11; 1840.1 and .11; 1847.3 and .9;
                                                                 1850.13, .14, .15, and .16.
----------------------------------------------------------------------------------------------------------------


[[Page 6201]]

Sec. 913.16  [Removed and reserved]

    3. Section 913.16 is removed and reserved.
[FR Doc. 99-3129 Filed 2-8-99; 8:45 am]
BILLING CODE 4310-05-M