[Federal Register Volume 64, Number 233 (Monday, December 6, 1999)]
[Rules and Regulations]
[Pages 68024-68031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31516]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 913
[SPATS No. IL-097-FOR, Part I]
Illinois Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving part of an amendment to the Illinois regulatory program
(Illinois program) under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). Illinois proposed revisions to its program concerning
subsidence control, water replacement, performance bonds, siltation
structures, impoundments, hydrologic balance, disposal of noncoal mine
wastes, revegetation, backfilling and grading, prime farmland, and
State inspections. This final rule document addresses Illinois'
revisions concerning subsidence control and water replacement. The
primary focus of these revisions is to address changes required by the
Energy Policy Act of 1992 regarding repair or compensation for material
damage caused by subsidence from underground coal mining operations and
replacement of drinking, domestic, and residential water supplies that
have been adversely impacted by underground coal mining operations.
Illinois intends to revise its program to be consistent with the
corresponding Federal regulations, to provide additional safeguards,
and to improve operational efficiency.
EFFECTIVE DATE: December 6, 1999.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,
Indianapolis Field Office, Office of Surface Mining, 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 August 2, 1999 (Administrative Record No. IL-5044),
the Illinois Department of Natural Resources (Department) sent us an
amendment to the Illinois program under SMCRA. The Department proposed
to amend Title 62 of the Illinois Administrative Code (IAC) in response
to our letters dated May 20, 1996, June 17, 1997, and January 15, 1999
(Administrative Record Nos. IL-1900, IL-2000, and IL-5036,
respectively), that we sent to Illinois under 30 CFR 732.17(c). The
amendment also includes changes made at the Department's own
initiative.
We announced receipt of the amendment in the August 17, 1999,
Federal Register (64 FR 44674). 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 September 16, 1999. Because no one requested a public hearing
or meeting, we did not hold one.
During our review of the amendment, we identified concerns relating
to siltation structures, impoundments, performance bonds, and State
inspections. We also identified some nonsubstantive editorial errors.
We notified Illinois of these concerns and editorial problems by letter
dated September 21, 1999 (Administrative Record No. IL-5048). Because
we did not identify any concerns relating to Illinois' revisions for
subsidence control and water replacement, we are separating Illinois'
amendment into two parts. Part I concerns revisions to Illinois'
regulations relating to subsidence control and water replacement. Part
II concerns revisions to Illinois' regulations relating to performance
bonds, siltation structures, impoundments, hydrologic balance, disposal
of noncoal mine wastes, revegetation, backfilling and grading, prime
farmland, and State inspections. This final rule Federal Register
document addresses IL-097-FOR, Part I.
III. Director's Findings
Following, under SMCRA and the Federal regulations at 30 CFR 732.15
and 732.17, are our findings on Illinois' revisions pertaining to
subsidence control and water replacement.
On March 31, 1995, OSM promulgated rules to implement new section
720(a) of SMCRA. Section 720(a), which took effect on October 24, 1992,
as part of the Energy Policy Act of 1992, Public Law 102-486, 206 Stat.
2776, requires all underground coal mining operations conducted after
October 24, 1992, to promptly repair or compensate for material damage
caused by subsidence to noncommercial buildings and occupied
residential dwellings and related structures. It also requires the
replacement of drinking, domestic, and residential water supplies that
have been adversely impacted by underground coal mining operations
conducted after that date. By letter dated May 20, 1996, under 30 CFR
732.17(c), we notified Illinois to amend its program to be no less
effective than
[[Page 68025]]
the changes which resulted from the enactment of section 720(a) of
SMCRA and the promulgation of implementing Federal regulations on March
31, 1995 (Administrative Record No. IL-1900). On April 27, 1999, the
U.S. Court of Appeals for the District of Columbia Circuit vacated two
of the March 31, 1995, implementing regulations (National Mining Ass'n
v. Babbitt, 98-5320, D.C. Cir. 1999). Illinois' August 2, 1999,
amendment reflected the U.S. Court of Appeals' decision.
A. Revisions to Illinois' Regulations That Are Substantively Identical
to the Corresponding Provisions of the Federal Regulations.
1. 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 minor.
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Topic State regulation Federal regulation
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Definition of ``Drinking, 62 IAC 1701. 30 CFR 701.5.
domestic or residential water Appendix A.
supply''.
Definition of ``Material 62 IAC 1701. 30 CFR 701.5.
damage''. Appendix A.
Definition of ``Replacement of 62 IAC 1701. 30 CFR 701.5.
Water Supply''. Appendix A.
Subsidence Control Plan........ 62 IAC 1784.20(a), 30 CFR 784.20(a), Introductory paragraph.
Introductory
paragraph.
Subsidence Control Plan........ 62 IAC 30 CFR 784.20(a)(1).
1784.20(a)(1).
Subsidence Control Plan........ 62 IAC 30 CFR 784.20(a)(2).
1784.20(a)(2).
Subsidence Control Plan........ 62 IAC 1784.20(b), 30 CFR 784.20(b), Introductory paragraph.
Introductory
paragraph.
Subsidence Control Plan........ 62 IAC 30 CFR 784.20(b)(1).
1784.20(b)(1).
Subsidence Control Plan........ 62 IAC 30 CFR 784.20(b)(2).
1784.20(b)(2).
Subsidence Control Plan........ 62 IAC 30 CFR 784.20(b)(4).
1784.20(b)(4).
Subsidence Control Plan........ 62 IAC 30 CFR 784.20(b)(6).
1784.20(b)(6).
Subsidence Control Plan........ 62 IAC 30 CFR 784.20(b)(7).
1784.20(b)(8)(A).
Subsidence Control Plan........ 62 IAC 30 CFR 784.20(b)(9).
1784.20(b)(10).
Subsidence Control............. 62 IAC 30 CFR 817.121(a)(1).
1817.121(a)(1).
Subsidence Control............. 62 IAC 30 CFR 817.121(a)(2).
1817.121(a)(3).
Subsidence Control............. 62 IAC 30 CFR 817.121(a)(3).
1817.121(a)(4).
Subsidence Control............. 62 IAC 30 CFR 817.121(c)(1).
1817.121(c)(1).
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Because the above State regulations have the same meaning as the
corresponding Federal regulations, we find that they are no less
effective than the Federal regulations.
2. Illinois made minor wording changes, including changing the term
``operator'' to the term ``permittee,'' throughout this amendment.
Illinois also revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment. We find
that these changes are nonsubstantive and will not make Illinois'
regulations less effective than the Federal regulations.
B. Revisions to Illinois' Regulations That Relate to Replacement of
Water Supplies
1. 62 IAC 1784.14(b)(1) Ground Water Information. In the March 31,
1995, Federal Register (62 FR 16728-29 and 16732-33), we discussed the
role that the counterpart Federal regulation at 30 CFR 784.14(b)(1)
plays in obtaining baseline hydrologic information. This information is
needed to make the finding for the probable hydrologic consequence
determinations at 30 CFR 784.14(e) and to implement the performance
standard for replacement of water supplies at 30 CFR 817.41(j). The
Federal regulation requires that the application include the following
information for the permit and adjacent areas: (1) the location and
ownership of existing wells, springs, and other ground-water resources,
(2) seasonal quality and quantity of ground water, and (3) ground water
usage. By letter dated April 1, 1999 (Administrative Record No. IL-
5042), we notified Illinois that its regulation at 62 IAC 1784.14(b)(1)
did not require baseline hydrologic information for ground water
overlaying or adjacent to underground workings. Although Illinois'
regulation was worded the same as the counterpart Federal regulation at
30 CFR 784.14(b)(1), it did not mean the same because the Illinois
definitions of ``permit area'' and ``adjacent area'' do not include the
shadow area. ``Shadow area'' is the term used by Illinois to
differentiate the surface over underground workings areas from the
surface permitted and bonded areas. Therefore, Illinois' regulation
would not require baseline hydrologic information for ground water
overlaying or adjacent to underground workings.
In response to our letter, Illinois proposed several revisions to
62 IAC 1784.14(b)(1). Illinois revised subsection (b)(1) by adding the
word ``shadow.'' This subsection now requires the permit application to
contain the location and ownership of existing wells, springs, and
other ground water resources; seasonal quality and quantity of ground
water; and ground water usage for the permit, shadow, and adjacent
areas. Illinois revised subsection (b)(1)(A) by redesignating it as
subsection (b)(1)(A)(i) and by adding the phrase ``for the permit area
and its adjacent area.'' The revised subsection requires that ground
water quality descriptions include, at a minimum, for the permit area
and its adjacent area: pH, total dissolved solids, hardness,
alkalinity, acidity, sulfates, total iron, total manganese, and
chlorides. Illinois added new subsection (b)(1)(A)(ii) to require that
ground water quality descriptions include, at a minimum, for the shadow
area and its adjacent area: pH, total dissolved solids, total iron and
total manganese. For the permit, shadow, and adjacent areas, the
Department allows the measurement of specific conductance in lieu of
total dissolved solids if the permittee develops site specific
relationships precisely correlating specific conductance to total
dissolved solids for specific sites for all zones being monitored.
Illinois revised subsection (b)(1)(B) by adding the phrase ``for the
permit, shadow, and adjacent areas.'' The revised subsection requires
ground water quantity descriptions for the permit, shadow, and adjacent
areas to include, at a minimum, rates of discharge or usage and
elevation of the potentiometric surface in the coal to be mined. It
also requires this information for each water bearing stratum above the
coal to be mined and in each water bearing stratum which may be
[[Page 68026]]
potentially impacted below the coal to be mined.
Illinois' revised regulation contains the same or similar
requirements for the permit, shadow, and adjacent areas as the
counterpart Federal regulation at 30 CFR 784.14(b)(1). Therefore, we
find that Illinois' regulation at 62 IAC 1784.14(b)(1) is no less
effective than the Federal regulation.
2. Illinois proposed the following revisions to its regulations at
62 IAC 1784.14 and 1817.41:
a. 62 IAC 1784.14(e) Probable hydrologic consequences
determination. Illinois added a new regulation provision at 62 IAC
1784.14(e)(3)(D) to require that the determination of the probable
hydrologic consequences include the following finding:
Whether the underground mining activities conducted after
January 19, 1996 may result in contamination, diminution or
interruption of a well or spring in existence at the time the permit
application is submitted and used for domestic, drinking, or
residential purposes within the permit, shadow or adjacent areas.
With one exception, Illinois' proposed regulation is substantively
identical to the counterpart Federal regulation at 30 CFR
784.14(e)(3)(iv). Illinois requires the finding to be made for
underground mining activities conducted after January 19, 1996, while
the Federal regulation requires the finding to be made for underground
mining activities conducted after October 24, 1992.
b. 62 IAC 1817.41(j) Drinking, domestic or residential water
supply. Illinois replaced its currently approved provision for
replacement of water supplies at 62 IAC 1817.121(c)(3) with the
following new provision at 62 IAC 1817.41(j):
Drinking, domestic or residential water supply. The permittee
must promptly replace any drinking, domestic or residential water
supply that is contaminated, diminished or interrupted by
underground mining activities conducted after January 19, 1996, if
the affected well or spring was in existence before the date the
Department received the permit application for the activities
causing the loss, contamination or interruption. The baseline
hydrologic information required in 62 Ill. Adm. Code 1780.21 and
1784.14 and the geologic information concerning baseline hydrologic
conditions required in 62 Ill. Adm. Code 1780.22 and 1784.22 will be
used to determine the impact of mining activities upon the water
supply.
With one exception, Illinois' proposed regulation is identical to
the counterpart Federal regulation at 30 CFR 817.41(j). Illinois
requires the replacement of protected water supplies that are
contaminated, diminished, or interrupted by underground mining
activities conducted after January 19, 1996, while the Federal
regulation requires the replacement of protected water supplies that
are contaminated, diminished, or interrupted by underground mining
activities conducted after October 24, 1992.
Illinois did not use the October 24, 1992, effective date for
either of its regulations because its approved program did not require
replacement of water supplies impacted by underground mining activities
until January 19, 1996. The Illinois Surface Coal Mining Land
Conservation and Reclamation Act prohibits retroactively applying
regulations. The requirement to replace water supplies was effective
upon passage of the Energy Policy Act of 1992. Permittees in both
primacy States and Federal program States, as well as on Indian lands,
were required to comply with this provision for their operations
conducted after October 24, 1992. OSM and most State regulatory
authorities ensured that complaints alleging violations of the nature
covered under section 720(a) of SMCRA were documented and a record
maintained until Federal regulations to enforce the Energy Policy Act
were promulgated. The Federal regulations were promulgated effective
May 1, 1995 (60 FR 16722, March 31, 1995). In the March 31, 1995,
preamble for 30 CFR 843.25, we considered the possibility that a number
of States may not authorize enforcement of counterpart provisions to
section 720(a) of SMCRA, as of October 24, 1992 (62 FR 16743). We
determined that in order to ensure compliance with section 720(a) in
those States, OSM would provide direct Federal enforcement for any
claims of damage caused by underground mining which occurs after
October 24, 1992, and which predates State program amendments. The
Federal regulation at 30 CFR 843.25(b) clarifies how direct Federal
enforcement procedures will apply, to the extent they are initiated.
The Federal regulation at 30 CFR 843.25(a) required us to make state-
by-state determinations on how initial enforcement of the Energy Policy
Act and implementing Federal regulations would occur. Enforcement could
be accomplished through the State program amendment process, State
enforcement, interim direct OSM enforcement, or joint State and OSM
enforcement. In the July 28, 1995, Federal Register (60 FR 38677), we
announced our decision on initial enforcement of underground coal
mining water replacement requirements in Illinois. Based on the
information provided by Illinois, we determined that initial
enforcement of the water replacement requirements in Illinois was not
reasonably likely to be required and that implementation would be
accomplished through the State program amendment process. Illinois
would enforce the requirements for replacement of water supplies after
it amended its program in accordance with Section 720(a) of SMCRA and
the implementing Federal regulations. Therefore, we find that Illinois'
regulations at 62 IAC 1784.14(e)(3)(D) and 1817.41(j) are no less
effective than the counterpart Federal regulations at 30 CFR
784.14(e)(3)(iv) and 817.41(j), respectively.
C. Revisions to Illinois' Regulations That Relate to Pre-subsidence
Surveys
Since approval of its original program in 1983, Illinois has
segregated underground mining into two specific subsidence control plan
categories. The first category is termed planned subsidence in which
the extraction of a high percentage of coal results in immediate,
predictable, and controlled subsidence. The second category, termed
unplanned subsidence, includes mines that extract a lesser percentage
of coal and leave long term support pillars to prevent subsidence from
occurring. Since 1983, Illinois has required all underground mining
operations, regardless of whether they are planned or unplanned
subsidence operations, to provide a general survey of all renewable
resource lands, structures, and facilities in the permit application.
Illinois also required all planned subsidence operations to provide
additional details on the structures and a plan for performing
condition surveys. This was done through its regulations at 62 IAC
1784.20(a) and requirements in its underground mining permit
application form.
The general survey included topography and location of all
structures and facilities, including pipelines, occupied dwellings,
public buildings, and cemeteries. By policy, Illinois had required the
general survey to include information on water supplies since its water
replacement regulation became effective in 1996. This additional
information included location, ownership, and depth of existing
drinking, residential, and domestic water supplies, including private
wells, municipal wells, and springs. Illinois has found that the
information provided in the application (including the baseline
hydrologic information required at 62 IAC 1784.14 and the general
survey information required at 62 IAC 1784.20(a) and by policy) is
sufficient to assess the need for a subsidence control plan. Illinois
stated that in its history of the regulating
[[Page 68027]]
underground mining, it has never exempted an applicant from submitting
a subsidence control plan. Illinois also stated that because of the
productivity of the lands found in Illinois and the frequency with
which structures are encountered, it is highly unlikely that it will
grant any future underground mining applicants exemptions from
submitting subsidence control plans. With 16 years of experience in
subsidence monitoring and mitigation under the Illinois program,
Illinois has found that it is not necessary to require site specific
pre-subsidence condition surveys at the time of permit application.
Based on extensive research on subsidence impacts to both crop land and
ground water conducted from 1985 to 1995 by the Illinois Mine
Subsidence Research Program, Illinois also determined that it is not
necessary to require site specific pre-subsidence water surveys at the
time of permit application. Illinois revised existing 62 IAC 1784.20
and 1817.121 to include provisions relating to pre-subsidence surveys.
1. 62 IAC 1784.20(b)(7) Subsidence Control Plan--Unplanned
Subsidence. Illinois added new subsection (b)(7) for those areas where
unplanned subsidence is projected to be used. If impacts could
reasonably be expected to cause material damage, this new subsection
requires the subsidence control plan to include a description of
procedures to determine the quantity and quality of drinking, domestic,
and residential water supplies in accordance with 62 IAC
1817.121(a)(2). The applicant may request an exemption from conducting
surveys of protected water supplies if the applicant can demonstrate
that material damage resulting from underground mining is not likely to
occur. The demonstration must be based on site specific geotechnical
information, stability design, and historical performance provided
under 62 IAC 1784.20(b)(3) and (b)(5).
2. 62 IAC 1784.20(b)(8)(B) Subsidence Control Plan--Planned
Subsidence. Illinois added new subsection (b)(8)(B) for those areas
where planned subsidence is projected to be used. If impacts could
reasonably be expected to cause material damage, it requires a
description of procedures to determine the condition of structures and
facilities and the quantity and quality of drinking, domestic, and
residential water supplies. If the applicant can demonstrate that
material damage resulting from underground mining is not likely to
occur, the applicant may request an exemption from conducting structure
condition surveys and/or surveys of drinking, domestic and residential
water supplies required by 62 IAC 1817.121(a)(2). The applicant must
base the demonstration on site specific geotechnical information,
stability design, and historical performance provided under 62 IAC
1784.20(b)(3) and (b)(6).
3. 62 IAC 1817.121(a)(2) Measures to prevent or minimize damage.
Illinois' proposed regulation at 62 IAC 1817.121(a)(2) provides that,
based on the requirements of 62 IAC 1784.20(b)(7) and (b)(8), the
permittee must perform a survey of the condition of all structures and
facilities that may be materially damaged or for which the reasonably
foreseeable use may be diminished by subsidence. The permittee must
also perform a survey of the quantity and quality of all drinking,
domestic, and residential water supplies within the permit area,
subsidence shadow area, and adjacent area that could be contaminated,
diminished, or interrupted by subsidence. The permittee must pay for
any technical assessment or engineering evaluation used to determine
the pre-mining condition or value of such structures and facilities and
the quantity and quality of drinking, domestic, or residential water
supplies. The permittee must provide copies of the survey and any
technical assessment or engineering evaluation to the property owner.
Subsection (a)(2)(A) requires the permittee to perform or schedule the
condition survey of structures and facilities a minimum of 120 days
before undermining. The Department may approve a lesser time if
justified by the permittee in writing. The permittee must provide a
copy of the condition survey to the property owner and maintain a copy
that it must provide to the Department upon request. The permittee must
provide the Department with verification that the survey has been
completed and forwarded to the property owner. Subsection (a)(2)(B)
requires the permittee to complete the survey of drinking, domestic,
and residential water supplies 120 days before the water delivery
system is undermined. The Department may approve a lesser time if
justified by the permittee in writing. The permittee must provide a
copy of the water survey to the property owner and to the Department.
As shown above, Illinois requires site specific pre-subsidence
condition surveys only for planned subsidence operations. Mines that
demonstrate a well-engineered, stable mine plan (unplanned subsidence)
are not required to perform a site specific condition survey.
Applicants must base their demonstration on site specific geotechnical
parameters that are evaluated by using acceptable engineering equations
and programs. Site specific pre-subsidence water surveys are required
for all operations, unless an exemption has been granted under 62 IAC
1784.20(b)(7) or (8)(B).
In a letter to us dated August 2, 1999 (Administrative Record No.
IL-5044), Illinois discussed its regulation requirements at 62 IAC
1784.20(b)(7), 1784.20(b)(8)(B), and 1817.121(a)(2):
Illinois is maintaining a requirement for site specific
condition surveys in the performance standards at 62 IAC 1817.121
for planned subsidence operations only. Planned subsidence condition
surveys were historically required as part of the permit application
process to serve as a method of determining the degree of material
damage after subsidence. Proposed 1784.20(b)(8) will provide a clear
avenue to require pre-subsidence condition surveys for planned
subsidence operations. Exemptions from performing the detailed
condition surveys will only be granted if a demonstration is made
that site specific mine design, geology, and geotechnical stability
data, as well as past experience of the mine and mines in the
region, will render subsidence damage unlikely.
A survey of all private wells defining location, ownership, and
depth will be required in the application for all underground mining
operations. When an exemption from performing quantity and quality
analysis of drinking, domestic, and residential water supplies is
requested, the geotechnical evaluation of stability will be used to
analyze the potential for mine subsidence. Mines that demonstrate a
well-engineered, stable mine plan and demonstrate that overburden
conditions will preclude impacts to water supplies will not be
required to perform quantity and quality analysis. This
demonstration will be based on site specific geotechnical parameters
evaluated by using acceptable engineering equations and programs* *
* . In addition to subsidence ground control evaluation, the
thickness and lithology of the interburden between the well and the
underground extraction area will be evaluated for potential roof
failure propagation that could intercept the well bearing lithologic
unit. Based on subsidence potential and potential roof failure
impacts, wells will be site specifically evaluated for the necessity
to sample and test for quality and quantity parameters prior to
mining.
On April 27, 1999, the U.S. Court of Appeals for the District of
Columbia Circuit vacated the Federal regulation at 30 CFR 784.20(a)(3)
that required permittees to conduct pre-subsidence structural condition
and water surveys (National Mining Ass'n v. Babbitt, 98-5320, D.C. Cir.
1999). The U.S. Court of Appeals ruled that, after enactment of the
Energy Policy Act, the agency possessed the authority to require such
surveys. However, the U.S. Court of
[[Page 68028]]
Appeals vacated 30 CFR 784.20(a)(3) because the regulation defined the
area within which the pre-subsidence structural condition survey is
required by reference to the angle of draw. The U.S. Court of Appeals'
decision indicates through the use of the term ``vacate'' that all of
30 CFR 784.20(a)(3) is no longer valid; therefore, there is no
counterpart Federal regulation that requires a pre-subsidence
structural condition and water survey. While the decision of the U.S.
Court of Appeals clearly states that the rule requiring a pre-
subsidence survey at 30 CFR 784.20(a)(3) must be vacated, it might be
argued that the vacation order only applies to the portion of the rule
pertaining to structures, which is tied to the angle of draw, and not
to the portion of the rule pertaining to water supplies, which is tied
to the permit area and adjacent area. In either case, we can approve
the Illinois rules. Illinois' proposed regulations at 62 IAC
1784.20(b)(7), 1784.20(b)(8)(B), and 1817.121(a)(2) that require
surveys, unless an exemption is obtained under 62 IAC 1784.20(b)(7) or
1784.20(b)(8)(B), are not based on whether or not a structure or water
supply is located within an angle of draw. They are based on an
analysis of site specific geotechnical information, stability design,
and historical performance information. The State would use this
analysis to determine whether impacts could reasonably be expected to
cause material damage to structures or water supplies within the
permit, shadow, and adjacent areas. Illinois has 16 years experience in
regulating underground coal mining operations, including subsidence
monitoring and mitigation. As discussed above, Illinois provided
technical support for its proposed regulations, including the exemption
provisions at 30 CFR 1784.20(b)(7) and 1784.20(b)(8)(B). Because of the
experience obtained during its years of regulating underground coal
mining operations and the technical studies conducted in the State,
Illinois determined that the structure condition and water survey
required by 62 IAC 1817.121(a)(2) is not necessary where, on a site
specific basis, an acceptable engineering and technical analysis
demonstrates that the proposed mine will not result in subsidence-
related damage to structures or water supplies. Therefore, we find that
Illinois' proposed requirements for a pre-subsidence survey are not
inconsistent with the U.S. Court of Appeals' decision and are no less
effective than the Federal regulation requirements relating to a pre-
subsidence survey at 30 CFR 784.20(a). We also find that Illinois'
requirements at 62 IAC 1784.20(b)(7), 1784.20(b)(8)(B), and
1817.121(a)(2) are not inconsistent with section 720(a) of SMCRA or the
Federal regulation requirements at 30 CFR 784.20 and 817.121 concerning
subsidence control. Therefore, we are approving them.
D. Revisions to Illinois' Regulations That Relate to Subsidence Control
Plans
With the exceptions discussed in Finding C above and the following
exceptions, Illinois' requirements for a subsidence control plan at 62
IAC 1784.20(b) are substantively identical to the Federal requirements
at 30 CFR 784.20(b).
1. 62 IAC 784.20(b)(3). Illinois recodified existing subsection (c)
as new subsection (b)(3) and revised it to require the subsidence
control plan to include a description of the lithology of underlying
strata and geotechnical stability parameters. Illinois also required
applicants to consider potential underground mining impacts on ground
water supplies in the description of physical conditions.
(3) A description of the physical conditions, such as depth of
cover, seam thickness, lithology of overlaying and underlying
strata, and geotechnical stability parameters that affect the
likelihood or extent of subsidence and subsidence related damage or
potential underground mining impacts on ground water supplies.
Illinois added the requirement for a description of the underlying
strata to emphasize the mine floor as part of the analysis. Illinois
added the requirement for geotechnical stability parameters to
emphasize the need for site specific test results or standard
acceptable parameters for mine stability evaluation. Illinois added the
requirement that the description of physical conditions consider the
effect of ``potential underground mining impacts on ground water
supplies'' to allow analysis of potential impacts to water supplies.
The counterpart Federal regulation at 30 CFR 784.20(b)(3) lists the
minimal information that may be required to analyze the likelihood or
extent of subsidence or subsidence-related damage. It requires ``a
description of the physical conditions, such as depth of cover, seam
thickness and lithology of overlaying strata, that affect the
likelihood or extent of subsidence and subsidence-related damage.''
Illinois' revised regulation includes the Federal requirements for
information and emphasizes additional information that it considers
necessary for analysis of potential impacts from subsidence. Therefore,
we find that Illinois' regulation at 62 IAC 1784.20(b)(3) is no less
effective than the Federal regulation at 30 CFR 784.20(b)(3).
2. 62 IAC 1784.20(b)(5). Illinois recodified existing subsection
(d) as new subsection (b)(5). It requires a detailed description of the
subsidence control measures for those areas where unplanned subsidence
is projected to be used. Illinois also recodified existing subsections
(d)(1) through (3) as subsections (b)(5)(A) through (C) without change.
Existing subsection (d)(4) was recodified as new subsection (b)(5)(D)
and was revised to require the description of the subsidence control
measures to include those measures to be taken on the surface to
prevent or minimize material damage or diminution in value of the
surface. Illinois removed existing subsection (d)(5). New subsection
(b)(5)(E) requires a description of the geotechnical and engineering
analysis of the mining geology and geometry, percent extraction, and
historic performance to substantiate a stable subsidence control plan.
Illinois' regulations at 62 IAC 1784.20(b)(5)(A) through (D) are
substantively identical to the Federal regulations at 30 CFR
784.20(b)(5)(i) through (iv). The Federal regulations do not contain a
specific counterpart to Illinois' provision at 62 IAC 1784.20(b)(5)(E).
However, Illinois added subsection (b)(5)(E) to provide a clearer
regulatory basis to require information such as floor, coal, and roof
strength analysis as well as specific mine design past performance when
considered necessary. Neither Illinois' regulation at 62 IAC
1784.20(b)(5) nor the counterpart Federal regulation at 30 CFR
784.20(b)(5) limit the information on subsidence control measures that
a regulatory authority may require in the subsidence control plan.
Therefore, we find that Illinois' regulation at 62 IAC 1784.20(b)(5) is
no less effective than the Federal regulation at 30 CFR 784.20(b)(5).
3. 62 IAC 1784.20(b)(9). New subsection (b)(9) requires a
description of the measures to be taken in accordance with 62 IAC
1817.41(j) and 1817.121(c) to replace adversely affected protected
water supplies or to mitigate or remedy any subsidence related material
damage to the land and protected structures. At subsection (b)(9)(A)
the applicant must provide procedures to determine the existence and
degree of material damage or diminution of value or foreseeable use of
the surface, structures and facilities, or water quality and quantity.
The procedures must address resolution of disputes between the
landowner and the permittee over the existence, amount,
[[Page 68029]]
level or degree of damage, such as third party arbitration. At
subsection (b)(9)(B), the applicant must provide a plan for determining
an appropriate present worth amount. The applicant must also describe
how he or she will resolve disputes with the landowner over this
amount. For example, the applicant could propose to use third party
arbitration.
Illinois' proposed requirements at 62 IAC 1784.20(b)(9) are
substantively the same as the Federal requirements at 30 CFR
784.20(b)(8). There are no Federal counterparts to Illinois' proposed
regulations at 62 IAC 1784.20(b)(9)(A) and (B). However, Illinois'
proposed regulations are based on requirements that we previously
approved in 62 IAC 1784.20(f). They enhance the provisions of 62 IAC
1784.20(b)(9) by requiring additional information that the permittee
will need in meeting the requirements of 62 IAC 1817.41, concerning
replacement of protected water supplies, and 62 IAC 1817.121(c)(2),
concerning repair or compensation for damage to structures and
facilities. Therefore, we find that 62 IAC 1784.20(b)(9) is no less
effective than the counterpart Federal regulation at 30 CFR
784.20(b)(8), and we are approving it.
E. Revisions to Illinois' Regulations That Relate to Subsidence Control
1. 62 IAC 1817.121(c)(2) Repair or compensation for damage to
structures and facilities. At subsection (c)(2), Illinois added the
heading ``Repair or compensation for damage to structures and
facilities.'' Illinois also revised subsection (c)(2) to require the
permittee to promptly repair or compensate the owner for material
damage resulting from subsidence caused to any structure or facility
that existed at the time of the coal extraction under or adjacent to
the materially damaged structure. If the repair option is selected, the
permittee must fully rehabilitate, restore or replace the damaged
structure. If compensation is selected, the permittee must compensate
the owner of the damaged structure for the full amount of the decrease
in value resulting from the subsidence-related damage. The permittee
may provide compensation by the purchase, before mining, of a non-
cancelable premium-prepaid insurance policy. These requirements apply
only to subsidence-related damage caused by underground coal extraction
conducted after February 1, 1983.
Illinois' revised regulation at 30 CFR 1817.121(c)(2) is
substantively the same as the Federal regulation at 30 CFR
817.121(c)(2) with the following exceptions:
a. The Federal regulation at 30 CFR 817.121(c)(2) requires the
permittee to repair, or compensate the owner for, material damage
resulting from subsidence caused to any non-commercial building,
occupied residential dwelling, and related structures. At 62 IAC
1817.121(c)(2), Illinois uses the terminology ``structures and
facilities'' in place of the Federal terminology. Illinois is using
this terminology because its regulation at 62 IAC 1817.121 has required
permittees to correct material damage from subsidence caused to all
structures and facilities by repairing the damage or compensating the
owner since its effective date on February 1, 1983. Because Illinois'
terminology would include all non-commercial buildings, occupied
residential dwellings, and related structures, we find that it will not
make 62 IAC 1817.121(c)(2) less effective than the counterpart Federal
regulation at 30 CFR 817.121(c)(2).
b. The Federal regulation at 30 CFR 817.121(c)(2) requires repair
or compensation for material damage resulting from subsidence caused to
any non-commercial building or occupied residential dwelling or
structure related thereto that existed at the time of mining. Illinois'
regulation at 62 IAC 1817.121(c)(2) requires repair or compensation for
material damage resulting from subsidence caused to any structure or
facility that existed at the time of the coal extraction under or
adjacent to the materially damaged structure. In its August 2, 1999,
submittal, Illinois indicated that its change in language from
``existed at the time of mining'' to ``existed at the time of the coal
extraction under or adjacent to the materially damaged structure''
makes it clearer as to how to monitor and track which structures are
covered. Illinois stated that ``[i]t does not change the intent of
covering all structures in existence at the time of mining.'' Because
subsidence damage resulting from mining could not occur to a structure
until coal is extracted and because Illinois interprets its language to
cover all structures in existence at the time of mining, we find that
this change in language will not make 62 IAC 1817.121(c)(2) less
effective than the Federal regulation at 30 CFR 817.121(c)(2).
c. The Federal regulation requirements at 30 CFR 817.121(c)(2)
apply only to subsidence-related damage caused by underground mining
activities conducted after October 24, 1992. Illinois' regulation
requirements at 62 IAC 1817.121(c)(2) apply to subsidence-related
damage caused by underground coal extraction conducted after February
1, 1983. Because the Illinois program has required permittees to
correct material damage resulting from subsidence caused to any
structures or facilities under 62 IAC 1817.121 since February 1, 1983,
we are approving this regulation.
2. 62 IAC 1817.121(c)(3) Adjustment of bond amount for subsidence
damage. Existing subsection (c)(3) was removed. New subsection (c)(3)
provides requirements for adjustment of the performance bond amount
when subsidence-related material damage to protected land, structures
or facilities occur or when contamination, diminution, or interruption
to a water supply occurs. The Department must require the permittee to
obtain additional performance bond in the amount of the estimated cost
of the repairs if the permittee will be repairing the damage, or in the
amount of the decrease in value if the permittee will be compensating
the owners, or in the amount of the estimated cost to replace the
protected water supply if the permittee will be replacing the water
supply. The additional performance bond must remain in force until the
repair, compensation, or replacement is completed. If repair,
compensation, or replacement is completed within 90 days of the
occurrence of damage, no additional bond is required. This time frame
may be extended, but not to exceed one year, if the permittee
demonstrates that subsidence is not complete, that not all probable
subsidence-related material damage has occurred to lands or protected
structures, or that not all reasonable anticipated changes have
occurred affecting protected water supplies. The permittee may also use
appropriate terms and conditions for liability insurance to assure that
the financial responsibility to comply with subsection (c) is in place.
Illinois' regulation requirements at 62 IAC 1817.121(c)(3) are
substantively identical to the Federal regulation requirements at 30
CFR 817.121(c)(5) with the following exception: There is no direct
Federal counterpart to Illinois' provision concerning the use of
liability insurance to assure financial responsibility. However, the
preamble to the Federal regulation at 30 CFR 817.121(c)(5) specifically
addresses the option of using liability insurance that would be
implemented by Illinois' provision (62 FR 16741-167842, March 31,
1995). In that preamble, we stated that under 30 CFR 800.14(c), if the
liability insurance policy required under section 30 CFR 800.60 would
provide coverage sufficient to fund the reclamation of subsidence
damage, that
[[Page 68030]]
insurance may be substituted for increased bond. Therefore, we find
that Illinois' proposed regulation at 62 IAC 1817.121(c)(3) is
consistent with and no less effective than the counterpart Federal
regulation at 30 CFR 817.121(c)(5).
IV. Summary and Disposition of Comments
Public Comments
We requested public comments on the proposed amendment, but did not
receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from various Federal agencies with an actual or potential
interest in the Illinois program (Administrative Record No. IL-5045).
By letter dated September 2, 1999, the Natural Resources Conservation
Services (NRCS) provided comments (Administrative Record No. IL-5047).
However, these comments did not pertain to the Illinois program
revisions concerning subsidence control and water replacement.
Therefore, we will discuss NRCS's comments in our future final rule
document for IL-097-FOR, Part II.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
agreement from the 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 the EPA to agree on the amendment.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
proposed amendment from the EPA (Administrative Record No. IL-5045).
The 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. None of the revisions that Illinois proposed to make in
this amendment pertain to historic properties. However, on August 10,
1999, we requested comments from both the SHPO and ACHP (Administrative
Record No. IL-5045), but neither responded to our request.
V. Director's Decision
Based on the above findings, we approve the revisions made to 62
IAC 1701. Appendix A, 1784.14, 1784.20, 1817.41, and 1817.121 in the
amendment submitted by Illinois on August 2, 1999. We approve the
regulations that Illinois proposed with the provision that they be
published 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 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 such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on 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 rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. 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: October 29, 1999.
Richard J. Seibel,
Acting 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.
* * * * *
[[Page 68031]]
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Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
August 2, 1999.......................... December 6, 1999........... 62 IAC 1701. Appendix A; 1784.14(b)(1),
(b)(1)(A) (i) and (ii), (b)(1)(B),
(e)(3)(D); 1784.20(a), (a)(1) and (2),
(b), (b)(1) through (10); 1817.41(j);
1817.121(a)(1) through (4), (c)(1)
through (3).
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[FR Doc. 99-31516 Filed 12-3-99; 8:45 am]
BILLING CODE 4310-05-P
