[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Rules and Regulations]
[Pages 40138-40142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17081]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[IL-099-FOR]


Illinois Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Illinois regulatory program 
(Illinois program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). The Illinois Department of Natural 
Resources, Office of Mines and Minerals (Department or Illinois) 
revised its regulations pertaining to definitions, areas designated by 
Act of Congress, criteria for designating areas as unsuitable for 
surface coal mining operations, requirements for permits and permit 
processing, coal exploration, and performance bond release. Illinois 
also corrected or removed outdated references in several regulations. 
Illinois revised its program to be consistent with the corresponding 
Federal regulations and to clarify ambiguities.

EFFECTIVE DATE: July 7, 2003.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director, 
Indianapolis Field Office. Telephone: (317) 226-6700. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

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

I. Background on the Illinois Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Illinois program on June 1, 1982. You can 
find background information on the Illinois program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval, in the June 1, 1982, Federal Register (47 FR 23858). You 
can also find later actions concerning the Illinois program and program 
amendments at 30 CFR 913.10, 913.15, and 913.17.

II. Submission of the Amendment

    By letter dated April 8, 2002 (Administrative Record No. IL-5077), 
Illinois sent us an amendment to its program under SMCRA (30 U.S.C. 
1201 et seq.). Illinois sent the amendment in response to a letter 
dated August 23, 2000 (Administrative Record No. IL-5060), that we sent 
to Illinois in accordance with 30 CFR 732.17(c), concerning valid 
existing rights. Illinois also included some changes at its own 
initiative. Illinois amended its surface coal mining and reclamation 
regulations at Title 62 of the Illinois Administrative Code (IAC).
    We announced receipt of the proposed amendment in the May 17, 2002, 
Federal Register (67 FR 35072). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or

[[Page 40139]]

meeting on the amendment's adequacy. We did not hold a public hearing 
or meeting because no one requested one. The public comment period 
ended on June 17, 2002. We did not receive any public comments.
    During our review of the amendment, we identified editorial-type 
errors. We notified Illinois of these errors by letters dated May 30, 
2002, and March 31, 2003 (Administrative Record Nos. IL-5078 and IL-
5082, respectively).
    By letter dated March 14, 2003 (Administrative Record No. IL-5081), 
Illinois sent us revisions to its proposed program amendment. Also by 
letter dated April 25, 2003 (Administrative Record No. IL-5083), 
Illinois sent additional information. Because the revisions were 
editorial in nature and the additional information merely clarified 
certain provisions of Illinois' amendment, we did not reopen the public 
comment period.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment as described below. Any revisions that we do 
not specifically discuss below concern nonsubstantive wording or 
editorial changes.

A. Minor Revisions to Illinois' Regulations

    1. Illinois deleted its definition of ``Interagency Committee'' at 
62 IAC 1701.Appendix A. Illinois removed this definition because 
Illinois Public Act 90-0490 abolished the Illinois Interagency 
Committee on Surface Mining Control and Reclamation (Interagency 
Committee) through an amendment to 225 Illinois Compiled Statutes 
(ILCS) 720/1.05 in 1997.
    On November 21, 2001, we approved the amendment to 225 ILCS 720/
1.05 (66 FR 58371). Therefore, we find that the removal of the 
definition will not make Illinois' regulations less effective than the 
Federal regulations.
    2. In the general definition section at 62 IAC 1701.Appendix A, 
Illinois removed the existing language from its definition of ``valid 
existing rights'' and replaced it with a reference to the new 
definition of ``valid existing rights'' found at 62 IAC 1761.5. 
Illinois' regulations at 62 IAC Part 1761 concern areas designated by 
Act of Congress.
    We find that relocating the definition of ``valid existing rights'' 
to the section concerning areas designated by Act of Congress is 
consistent with the Federal regulations at 30 CFR Part 761. We also 
find that providing a reference in the general definition section to 
the new definition of ``valid existing rights'' will clarify the 
location of the new definition for persons using the Illinois 
regulations.
    3. Illinois proposed to redesignate existing 62 IAC 1762.14, 
concerning exploration on land designated as unsuitable for surface 
coal mining operations, as new 62 IAC 1762.15. However, during the 
adoption of redesignated 62 IAC 1762.15, two editorial errors were 
made. We notified Illinois of these errors on March 31, 2003 
(Administrative Record No. IL-5082). By letter dated April 25, 2003 
(Administrative Record No. IL-5083), Illinois indicated that the 
editorial errors would be corrected in the next State rulemaking.
    We find that the redesignation of 62 IAC 1762.14 as 62 IAC 1762.15 
is consistent with a recent change made to the counterpart Federal 
regulation. OSM redesignated its regulation concerning exploration on 
land designated as unsuitable for surface coal mining operations as 30 
CFR 762.15. See 64 FR 70766, dated December 17, 1999. For this reason 
and because the editorial errors will not affect Illinois' 
implementation of its regulations concerning exploration on land 
designated as unsuitable for surface coal mining operations, we are 
approving 62 IAC 1762.15.
    4. Illinois corrected citation references, made minor wording 
changes, and simplified its use of numbers in 62 IAC 1772.12, Permit 
Requirements for Exploration Removing More than 250 Tons of Coal; 
1773.13(a)(1)(E) and (d), Public Participation in Permit Processing; 
1773.15(c)(3)(B), (c)(11), and (c)(13), Review of Permit Applications; 
1778.15(e), Right of Entry Information; 1778.16(c), Relationship to 
Areas Designated Unsuitable for Mining; 1780.31(a)(2), Protection of 
Public Parks and Historic Places; 1780.33, Relocation or Use of Public 
Roads; 1784.17(a)(2), Protection of Public Parks and Historic Places 
(Underground Mining); 1784.18, Relocation or Use of Public Roads 
(Underground Mining); 1816.116(a)(2)(C), Success of Revegetation; and 
1847.9(a), Bond Release Public Hearings.
    Because these changes are minor, we find that they will not make 
Illinois' regulations less effective than the corresponding Federal 
regulations.

B. Revisions to Illinois' Regulations That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    Illinois' regulations listed in the table below contain language 
that is the same as or similar to the corresponding sections of the 
Federal regulations.

------------------------------------------------------------------------
                                                            Federal
              Topic                State regulation       counterpart
                                                          regulation
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Definition of Valid Existing      62 IAC 1761.5.....  30 CFR 761.5.
 Rights.
Exceptions to Existing            62 IAC 1761.12....  30 CFR 761.12.
 Operations.
Procedures for Relocation or      62 IAC 1761.14....  30 CFR 761.14.
 Closing of a Public Road or
 Waiving the Prohibition on
 Mining Operations within the
 Buffer Zone of a Public Road.
Procedures for Waiving the        62 IAC 1761.15....  30 CFR 761.15.
 Prohibition on Surface Coal
 Mining Operations within the
 Buffer Zone of an Occupied
 Dwelling.
Submission and Processing of      62 IAC 1761.16....  30 CFR 761.16.
 Requests for Valid Existing
 Rights Determinations.
Department Obligations at Time    62 IAC 1761.17....  30 CFR 761.17.
 of Permit Application Review.
Applicability to Lands            62 IAC 1762.14....  30 CFR 762.14.
 Designated as Unsuitable by
 Congress.
Permit Requirements for           62 IAC              30 CFR
 Exploration Removing More Than    1772.12(b)(14),     772.12(b)(14),
 250 Tons of Coal.                 (d)(2)(D).          (d)(2)(iv).
------------------------------------------------------------------------

    During the adoption of its new regulations at 62 IAC 1761.16 and 
1772.12(b)(14) shown above, Illinois made three editorial errors. We 
notified Illinois of these errors on March 31, 2003 (Administrative 
Record No. IL-5082). By letter dated April 25, 2003 (Administrative 
Record No. IL-5083), Illinois indicated that the editorial errors would 
be corrected in the next State rulemaking. Because the editorial errors 
made to 62 IAC 1761.16 and

[[Page 40140]]

1772.12(b)(14) do not affect the meaning of these regulations, we 
included the regulations in the table above.
    Because the State regulations listed in the table have the same 
meaning as the counterpart Federal regulations, we find that they are 
no less effective than the Federal regulations.

C. 62 IAC 1761.11 Areas Where Mining is Prohibited or Limited

    Illinois deleted existing subsection (b), which prohibited surface 
coal mining on specified Federal lands unless called for by Acts of 
Congress. Illinois also redesignated subsections (a)(1) through (a)(7) 
as subsections (a) through (g), corrected citation references, and 
simplified its use of numbers.
    We are approving Illinois' deletion of 62 IAC 1761.11(b) because it 
is consistent with OSM's deletion of the counterpart Federal regulation 
at 30 CFR 761.11(h). See 64 FR 70766, dated December 17, 1999. We are 
also approving the other changes made to 62 IAC 1761.11 because they 
are minor and will not make Illinois' regulations less effective than 
the corresponding Federal regulations.

D. 62 IAC 1800.40 Requirement to Release Performance Bonds

    Illinois revised 62 IAC 1800.40(b)(2) to allow the Department, when 
no public hearing is held, to make its final administrative decision 
regarding a bond release application either 60 days after the 
application is filed or 5 days after the close of the comment period, 
whichever is later.
    The counterpart Federal regulation at 30 CFR 800.40(b)(2) requires 
the regulatory authority to make its final decision within 60 days from 
the filing of the bond release application if no public hearing is 
held. The Federal regulation at 30 CFR 800.40(a)(2) and the State 
regulation at 62 IAC 1800.40(a)(2) require that the notice announcing 
the bond release be placed at least once a week for four successive 
weeks in a newspaper of general circulation in the locality of the 
surface coal mining operation. When Illinois submitted this amendment 
on April 8, 2002, it explained that because its public comment period 
extends to 30 days after the last publication of the notice announcing 
the bond release, it is possible for the public comment period to 
expire after the 60-day time limit required by 30 CFR 800.40(b)(2). We 
recognize that in many small communities in Illinois, the newspapers of 
general circulation in the locality of the surface coal mining 
operations may publish only one or two days a week. If the bond release 
applicant does not get the newspaper advertisement placed in a timely 
manner, it is possible that the 60-day time limit required by 30 CFR 
800.40(b)(2) would expire before the public comment period ends. We 
find that Illinois' proposed rule would allow a bond release decision 
to be issued in a timely manner while ensuring consideration of all 
public comments before a final bond release decision is made. Illinois' 
proposed rule therefore adheres to the spirit of the Federal 
requirements at 30 CFR 800.40 in ensuring that the State makes a final 
decision on the bond release application in a timely manner. Based on 
the above discussion, we are approving Illinois' revisions at 62 IAC 
1800.40(b)(2).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, but did not receive 
any.

Federal Agency Comments

    On April 12, 2002, under 30 CFR 732.17(h)(11)(i) and section 503(b) 
of SMCRA, we requested comments on the amendment from various Federal 
agencies with an actual or potential interest in the Illinois program 
(Administrative Record No. IL-5079). We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.). None of the revisions that Illinois proposed to 
make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment.
    On April 17, 2002, under 30 CFR 732.17(h)(11)(i), we requested 
comments on the amendment from EPA (Administrative Record No. IL-5079). 
EPA did not respond to our request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On April 12, 2002, we requested comments on Illinois' 
amendment (Administrative Record No. IL-5079), but neither responded to 
our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment as submitted 
by Illinois on April 8, 2002, and as revised on March 14, 2003.
    We approve the regulations proposed by Illinois with the provision 
that they be fully promulgated in identical form to the regulations 
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 find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    In this rule, the State is adopting valid existing rights standards 
that are similar to the standards in the Federal definition at 30 CFR 
761.5. Therefore, these provisions have the same takings implications 
as the Federal valid existing rights rule. The takings implications 
assessment for the Federal valid existing rights rule appears in Part 
XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27, 
December 17, 1999. The provisions in the rule based on other 
counterpart Federal regulations do not have takings implications. This 
determination is based on the analysis performed for the counterpart 
Federal regulations.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR

[[Page 40141]]

730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
This determination is based on the fact that the Illinois program does 
not regulate coal exploration and surface coal mining and reclamation 
operations on Indian lands. Therefore, the Illinois program has no 
effect on Federally-recognized Indian tribes.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 913

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 30, 2003.
Ervin J. Barchenger,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR Part 913 is amended as 
set forth below:

PART 913--ILLINOIS

0
1. The authority citation for Part 913 continues to read as follows:


    Authority: 30 U.S.C. 1201 et seq.

0
2. Section 913.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


913.15  Approval of Illinois regulatory program amendments.

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[[Page 40142]]



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   Original amendment  submission date     Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
April 8, 2002...........................  July 7, 2003...............  62 IAC 1701.Appendix A; 1761.5; 1761.11;
                                                                        1761.12; 1761.14; 1761.15; 1761.16;
                                                                        1761.17; 1762.14; 1762.15; 1772.12;
                                                                        1773.13(a)(1)(E), (d); 1773.15(c)(3)(B),
                                                                        (c)(11), (c)(13); 1778.15(e);
                                                                        1778.16(c); 1780.31(a)(2); 1780.33;
                                                                        1784.17(a)(2); 1784.18; 1800.40(b)(2);
                                                                        1816.116(a)(2)(C); 1847.9(a).
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[FR Doc. 03-17081 Filed 7-3-03; 8:45 am]
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