[Federal Register Volume 70, Number 25 (Tuesday, February 8, 2005)]
[Proposed Rules]
[Pages 6602-6605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2409]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[Docket No. IL-104-FOR]


Illinois Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of a proposed amendment to the Illinois 
regulatory program (Illinois program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). Illinois proposes 
revisions to its regulations and statutes to remove provisions relating 
to the Surface Mining Advisory Council, to update citation references, 
to correct typographical errors, to update procedures for relocating or 
closing public roads, and to clarify requirements for subsidence 
control. Illinois intends to revise its program to provide additional 
safeguards and to clarify ambiguities.
    This document gives the times and locations that the Illinois 
program and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
e.s.t., March 10, 2005. If requested, we will hold a public hearing on 
the amendment on March 7, 2005. We will accept requests to speak at a 
hearing until 4 p.m., e.s.t. on February 23, 2005.

ADDRESSES: You may submit comments, identified by Docket No. IL-104-
FOR, by any of the following methods:
     E-mail: [email protected]. Include Docket No. IL-104-FOR 
in the subject line of the message.
     Mail/Hand Delivery: Andrew R. Gilmore, Chief, Alton Field 
Division--Indianapolis Area Office, Office of Surface Mining 
Reclamation and Enforcement, Minton-Capehart Federal Building, 575 
North Pennsylvania Street, Room 301, Indianapolis, Indiana 46204.
     Fax: (317) 226-6182.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the Illinois 
program, this amendment, a listing of any scheduled public hearings, 
and all written comments received in response to this document, you 
must go to the address listed below during normal business hours, 
Monday through Friday, excluding holidays. You may receive one free 
copy of the amendment by contacting OSM's Indianapolis Area Office.
    Andrew R. Gilmore, Chief, Alton Field Division--Indianapolis Area 
Office, Office of Surface Mining Reclamation and Enforcement, Minton-
Capehart Federal Building, 575 North Pennsylvania Street, Room 301, 
Indianapolis, Indiana 46204; telephone: (317) 226-6700; e-mail: 
[email protected].
    In addition, you may review a copy of the amendment during regular 
business hours at the following location: Illinois Department of 
Natural Resources, Office of Mines and Minerals, Land Reclamation 
Division, One Natural Resources Way, Springfield, Illinois 62701; 
Telephone: (217) 782-4970.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field 
Division--Indianapolis Area Office. Telephone: (317) 226-6700. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Illinois Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Illinois Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of this Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of 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 
of the Illinois program in the June 1, 1982, Federal Register (47 FR 
23858). You can also find later actions concerning the Illinois program 
and program amendments at 30 CFR 913.10, 913.15, 913.16, and 913.17.

II. Description of the Proposed Amendment

    By letter dated December 10, 2004 (Administrative Record No. IL-
5086), the Illinois Department of Natural Resources, Office of Mines 
and Minerals (Department) sent us an amendment to its program under 
SMCRA (30 U.S.C. 1201 et seq.). The Department proposed to amend its 
regulations at 62 Illinois Administrative Code (IAC) Parts 1700, 1761, 
1762, 1772, and 1773 and its statutes at 225 Illinois Compiled Statutes 
(ILCS) 720/1.04. The Department sent the amendment at its own 
initiative. Below is a summary of the changes proposed by the 
Department. The full text of the program amendment is available for you 
to read at the locations listed above under ADDRESSES.

[[Page 6603]]

A. Statute Revision

    In 1997, the Illinois General Assembly added Section 1.04 to 225 
ILCS 720 of the Illinois Surface Coal Mining Land Conservation and 
Reclamation Act (State Act) to create the Surface Mining Advisory 
Council to act as an advisory body to the Director of the Illinois 
Department of Natural Resources and to the Land Reclamation Division of 
the Office of Mines and Minerals on matters of mining and reclamation. 
The Illinois General Assembly amended the State Act by repealing 225 
ILCS 720/1.04 effective July 10, 2003. Illinois is proposing to amend 
its program to reflect this repeal.

B. Regulation Revisions

1. 62 IAC 1700.17 Administration
    a. In subsection (a), Illinois proposes to correct its citation 
reference to the Civil Administrative Code of Illinois from ``(Ill. 
Rev. Stat. 1985, ch. 127, pars. 1 et seq.)'' to a reference to ``[20 
ILCS 5/1 et seq.]''; to change its reference to SMCRA from ``the 
Surface Mining Control and Reclamation Act of 1977'' to a reference to 
``the Federal Act [30 U.S.C.A. Sec.  1201 et seq.]''; and to correct 
its citation reference to the State Act from ``(Ill. Rev. Stat. 1985, 
ch. 96 \1/2\, par. 7909.02)'' to a reference to ``[225 ILCS 720/
9.02]''. Illinois also proposes minor wording changes by changing the 
language ``full authority to administer the State Act'' to ``full 
powers and authority to carry out and administer the provisions of this 
Act''; by changing the language ``the Department has the power and the 
duty to act for the State of Illinois under the Surface Mining Control 
and Reclamation Act of 1977 (the Federal Act), to submit and implement 
a State program under the Federal Act, and to apply for, receive, and 
use for Illinois such moneys and property as are given under the 
Federal Act'' to ``the Department has the power and the duty to act as 
the regulatory authority for the State of Illinois under the Federal 
Act [30 U.S.C.A. Sec.  1201 et seq.], to submit and implement a State 
program under the Federal Act, and to apply for, receive, receipt for 
and use for in behalf of the State such moneys and property as are 
given or granted under the Federal Act''; by changing the phrase 
``public or private source'' to ``public and private source''; and by 
changing the phrase ``the State Act'' to ``this Act.'' The revised 
paragraph reads as follows:

    (a) General Duties and Powers. In addition to the duties and 
powers of the Department prescribed by the Civil Administrative Code 
of Illinois [20 ILCS \5/1\ et seq.], the Department shall have full 
powers and authority to carry out and administer the provisions of 
this Act. The Department has the power and the duty to act as the 
regulatory authority for the State of Illinois under the Federal Act 
[30 U.S.C.A. Sec.  1201 et seq.], to submit and implement a State 
program under the Federal Act, and to apply for, receive, receipt 
for and use for in behalf of the State such moneys and property as 
are given or granted under the Federal Act or any other federal law, 
or from any other lawful public and private source, for the purposes 
of this Act. [225 ILCS 720/9.02].

    b. At subsection (b), Illinois proposes to correct a citation 
reference from ``(Ill. Rev. Stat. 1985, ch. 96 \1/2\, par. 7909.03)'' 
to ``[225 ILCS 720/9.03].''
    c. At subsection (c), Illinois proposes to correct a citation 
reference from ``(Ill. Rev. Stat. 1985, ch. 96 \1/2\, par. 7909.04)'' 
to ``[225 ILCS 720/9.04].''
    d. At subsection (d), Illinois proposes to correct a citation 
reference from ``(Ill. Rev. Stat. 1985, ch 96 \1/2\, par. 7909.05)'' to 
``[225 ILCS 720/9.05].''
2. 62 IAC 1700.18 Advisory Council on Reclamation
    Because the Illinois General Assembly amended the State Act by 
repealing the statute at 225 ILCS 720/1.04, which created the Surface 
Mining Advisory Council, Illinois proposes to remove its implementing 
regulation at 62 IAC 1700.18.
3. 62 IAC 1761.11 Areas Where Mining is Prohibited or Limited
    At subsection (e)(1), Illinois proposes to add a citation reference 
to its regulation at 62 IAC 1761.15 concerning submission and 
processing of requests for valid existing rights determinations. 
Revised subsection (e)(1) reads as follows:

    (1) The owner thereof has provided a written waiver, pursuant to 
Section 1761.15, consenting to surface coal mining operations closer 
than 300 feet; or
4. 62 IAC 1761.14 Procedures for Relocation or Closing of a Public Road 
or Waiving the Prohibition on Surface Coal Mining Operations Within the 
Buffer Zone of a Public Road
    Illinois proposes to amend its procedures for mining within 100 
feet of the outside right-of-way line of a public road and for 
relocation or closure of a public road.
    a. Illinois is amending subsection (b) by adding new paragraph (1) 
that requires the applicant to submit a request with an application for 
a new permit, a significant revision of a permit, an insignificant 
revision of a permit, or an incidental boundary revision, as 
applicable, if the applicant does not have valid existing rights and is 
proposing to conduct mining operations within 100 feet measured 
horizontally of the outside right-of-way line of any public road or if 
the applicant is proposing to relocate or close any public road. 
Illinois is also proposing to redesignate existing paragraphs (1) 
through (4) as paragraphs (2) through (5).
    b. At newly redesigned subsection (b)(5), Illinois is proposing to 
remove the requirement that a written finding be made within 30 days 
after completion of the hearing or after any public comment period ends 
if no hearing is held based upon information received in writing or at 
the public hearing for mining within 100 feet of the outside right-of-
way line of a public road and for relocation or closure of a public 
road. Illinois is also adding the requirement that a road may not be 
relocated or closed unless the Department determines that the interest 
of the affected public and landowners will be protected. The revised 
paragraph reads as follows:

    (5) Make a written finding based upon information received at 
the public hearing, or submitted in writing, as to whether the 
interests of the affected public and landowners will be protected 
from the proposed mining operations. No mining shall be allowed 
within 100 feet of the outside right-of-way line of a road, nor may 
a road be relocated or closed unless the Department determines that 
the interests of the affected public and landowners will be 
protected.

    c. At newly redesignated subsection (b)(5), Illinois is also 
proposing to add provisions at paragraphs (5)(i) and (ii) to provide 
the time frames for making written findings for requests for mining 
within 100 feet of the outside right-of-way line of a public road and 
for relocation or closure of a public road. The new paragraphs read as 
follows:

    (i) If the proposal to conduct mining operation within 100 feet 
measured horizontally of the outside right-of-way line of any public 
road or to relocate or close any public road is contained in an 
application for a new permit pursuant to Section 1773.13, or a 
significant revision pursuant to Section 1774.13(b)(3), the written 
findings shall be issued concurrently with the permit decision 
pursuant to Section 1773.15(a); or
    (ii) If the proposal to conduct mining operation within 100 feet 
measured horizontally of the outside right-of-way line of any public 
road or to relocate or close any public road is contained in an 
application for an insignificant revision pursuant to Section 
1774.13(b), or an incidental boundary revision pursuant to Section 
1774.13(d), the written findings shall be issued concurrently with 
the decision to issue or deny the revision.


[[Page 6604]]


5. 62 IAC 1761.16 Submission and Processing of Requests for Valid 
Existing Rights Determinations
    Illinois proposes to correct two typographical errors in the second 
sentence of subsection (b)(3) by changing the reference from 
``subsection (b)(1)'' to a reference to ``subsection (b)(2)'' and by 
changing the reference from ``subsection (b)(2)'' to a reference to 
``subsection (b)(1).''
6. 62 IAC 1762.15 Exploration on Lands Designated as Unsuitable for 
Surface Coal Mining Operations
    At Section 1762.15, Illinois proposes to change its reference from 
``this Part'' to a reference to ``62 Ill. Adm. Code 1761 through 1764'' 
and to change its reference from ``this Part, any approved State or 
Federal program, and other applicable requirements'' to a reference to 
``62 Ill. Adm. Code 1700 through 1850 and other applicable 
requirements.''
7. 62 IAC 1772.12 Permit Requirements for Exploration Removing More 
Than 250 Tons of Coal
    At subsection (b)(14), Illinois proposes to correct a typographical 
error by changing its reference from ``62 Ill. Adm. Code 176.11'' to a 
reference to ``62 Ill. Adm. Code 1761.11.''
8. 62 IAC 1773.15 Review of Permit Applications
    At the introductory paragraph of subsection (c)(3), Illinois 
proposes to remove the language ``or the proposed shadow area for a 
planned subsidence operation'' to make it consistent with the 
counterpart Federal regulation. The revised subsection reads as 
follows:
    (3) The proposed permit area is:

    (A) Not within an area under study or administrative proceedings 
under a petition, filed pursuant to 62 Ill. Adm. Code 1764, to have 
an area designated as unsuitable for surface coal mining operations, 
unless the applicant demonstrates that before January 4, 1977, he 
has made substantial legal and financial commitments in relation to 
the operation covered by the permit application; or
    (B) Not within an area designated as unsuitable for mining 
pursuant to 62 Ill. Adm. Code 1762 and 1764 or within an area 
subject to the prohibitions of 62 Ill. Adm. Code 1761.11.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will not consider or respond to 
your comments when developing the final rule if they are received after 
the close of the comment period (see DATES). We will make every attempt 
to log all comments into the administrative record, but comments 
delivered to an address other than the Indianapolis Area Office may not 
be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: Docket No. IL-104-FOR'' and your name and return 
address in your Internet message. If you do not receive a confirmation 
that we have received your Internet message, contact the Indianapolis 
Area Office at (317) 226-6700.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on 
February 23, 2005. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. 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, this rule has 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 revisions made at the initiative of the State that do not 
have Federal counterparts have also been reviewed and a determination 
made that they do not have takings implications. This determination is 
based upon the fact that the provisions are administrative and 
procedural or editorial in nature and are not expected to have a 
substantive effect on the regulated industry.

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

[[Page 6605]]

actual language of State regulatory programs and program amendments 
because each program is drafted and promulgated by a specific State, 
not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 
1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 
732.17(h)(10), decisions on proposed State regulatory programs and 
program amendments submitted by the States must be based solely on a 
determination of whether the submittal is consistent with SMCRA and its 
implementing Federal regulations 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 a portion of the 
provisions in 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.) because they are 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 part of the rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations. The Department of 
the Interior also certifies that the provisions in this rule that are 
not based upon counterpart Federal regulations 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.). This 
determination is based upon the fact that the provisions are 
administrative and procedural in nature and are not expected to have a 
substantive effect on the regulated industry.

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 a portion 
of the State provisions are 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. For the portion of 
the State provisions that is not based upon counterpart Federal 
regulations, this determination is based upon the fact that the State 
provisions are administrative and procedural or editorial in nature and 
are not expected to have a substantive effect on the regulated 
industry.

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 a portion of 
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. For the portion of the State provisions that is not 
based upon counterpart Federal regulations, this determination is based 
upon the fact that the State provisions are administrative and 
procedural or editorial in nature and are not expected to have a 
substantive effect on the regulated industry.

List of Subjects in 30 CFR Part 913

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 13, 2005.
Charles E. Sandberg,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 05-2409 Filed 2-7-05; 8:45 am]
BILLING CODE 4310-05-P