Illinois Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

Illinois Regulatory Program

agency: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

action: Announcement of public comment period and opportunity for

public hearing.

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summary: OSM is requesting public comment that would be considered in

deciding how to implement in Illinois underground coal mine subsidence

control and water replacement provisions of the Surface Mining Control

and Reclamation Act of 1977 (SMCRA), the implementing Federal

regulations, and/or counterpart State provisions. Recent amendments to

SMCRA and the implementing Federal regulations require that underground

coal mining operations conducted after October 24, 1992, promptly

repair or compensate for subsidence-caused material damage to

noncommercial buildings and to occupied dwellings and related

structures. These provisions also require such operations to promptly

replace drinking, domestic, and residential water supplies that have

been adversely affected by underground coal mining.

OSM must decide if the Illinois regulatory program (hereinafter

referred to as the ``Illinois program'') currently has adequate

counterpart provisions in place to promptly implement the recent

amendments to SMCRA and the Federal regulations. After consultation

with Illinois and consideration of public comments, OSM will decide

whether initial enforcement in Illinois will be accomplished through

the State program amendment process or by State enforcement, by interim

direct OSM enforcement, or by joint State and OSM enforcement.

dates: Written comments must be received by 4 p.m., C.S.T. on May 8,

1995. If requested, OSM will hold a public hearing on May 2, 1995

concerning how the underground coal mine subsidence control and water

replacement provisions of SMCRA and the implementing Federal

regulations, or the counterpart State provisions, should be implemented

in Illinois. Requests to speak at the hearing must be received by 4

p.m., C.S.T. on April 24, 1995.

addresses: Written comments and requests to speak at the hearing should

be mailed or hand-delivered to James F. Fulton, Director, Springfield

Field Office at the address listed below.

Copies of the applicable parts of the Illinois program, SMCRA, the

implementing Federal regulations, information provided by Illinois

concerning its authority to implement State counterparts to SMCRA and

the implementing Federal regulations, a listing of any scheduled public

hearings, and all written comments received in response to this

document will be available for public review at the address listed

below during normal business hours, Monday through Friday, excluding

holidays: James F. Fulton, Director, Springfield Field Office, Office

of Surface Mining Reclamation and Enforcement, 511 West Capitol, Suite

202, Springfield, Illinois 62704, Telephone: (217) 492-4495.

for further information contact: James F. Fulton, Director, Springfield

Field Office, Telephone: (217) 492-4495.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Energy Policy Act

Section 2504 of the Energy Policy Act of 1992, Public Law 102-486,

106 Stat. 2776 (1992) added new section 720 to SMCRA. Section 720(a)(1)

requires that all underground coal mining operations promptly repair or

compensate for subsidence-caused material damage to noncommercial

buildings and to occupied residential dwellings and related structures.

Repair of damage includes rehabilitation, restoration, or replacement

of the structures identified in section 720(a)(1), and compensation

must be provided to the owner in the full amount of the reduction in

value of the damaged structures as a result of subsidence. Section

720(a)(2) requires prompt replacement of certain identified water

supplies if those supplies have been adversely affected by underground

coal mining operations.

These provisions requiring prompt repair or compensation for damage

to structures, and prompt replacement of water supplies, went into

effect upon passage of the Energy Policy Act on October 24, 1992. As a

result, underground coal mine permittees in States with OSM-approved

regulatory programs are required to comply with these provisions for

operations conducted after October 24, 1992.

B. The Federal Regulations Implementing the Energy Policy Act

On March 31, 1995, OSM promulgated regulations at 30 CFR Part 817

to implement the performance standards of sections 720(a) (1) and (2)

of SMCRA (60 FR 16722-16751).

30 CFR 817.121(c)(2) requires in part that:

The permittee must promptly repair, or compensate the owner 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. * * * The

requirements of this paragraph apply only to subsidence-related

damage caused by underground mining activities conducted after

October 24, 1992.

30 CFR 817.41(j) requires in part that:

The permittee must promptly replace any drinking, domestic or

residential water supply that is contaminated, diminished or

interrupted by underground mining activities conducted after October

24, 1992, if the affected well or spring was in existence before the

date the regulatory authority received the permit application for

the activities causing the loss, contamination or interruption.

30 CFR 843.25 provides that by July 31, 1995, OSM will decide, in

consultation with each State regulatory authority with an approved

program, how enforcement of the new requirements will be accomplished.

As discussed below, enforcement may be accomplished through the 30 CFR

Part 732 State program amendment process, or by State, OSM, or joint

State and OSM enforcement of the requirements. OSM will decide which of

the following enforcement approaches to pursue.

(1) State program amendment process. If the State's promulgation of

regulatory provisions that are counterpart to 30 CFR 817.41(j) and

817.121(c)(2) is imminent, the number and extent of underground mines

that have operated in the State since October 24, 1992, is low, the

number of complaints in the State concerning section 720 of SMCRA is

low, or the State's investigation of subsidence-related complaints has

been thorough and complete so as to assure prompt remedial action, then

OSM could decide not to directly enforce the Federal provisions in the

State. In this situation, the State would enforce its State statutory

and regulatory provisions once it has amended its program to be in

accordance with the revised SMCRA and to be consistent with the revised

[[Page 17735]] Federal regulations. This program revision process,

which is addressed in the Federal regulations at 30 CFR part 732, is

commonly referred to as the State program amendment process.

(2) State enforcement. If the State has statutory or regulatory

provisions in place that correspond to all of the requirements of the

above-described Federal regulations at 30 CFR 817.41(j) and

817.121(c)(2) and the State has authority to implement its statutory

and regulatory provisions for all underground mining activities

conducted after October 24, 1992, then the State would enforce its

provisions for these operations.

(3) Interim direct OSM enforcement. If the State does not have any

statutory or regulatory provisions in place that correspond to the

requirements of the Federal regulations at 30 CFR 817.41(j) and

817.121(c)(2), then OSM would enforce in their entirety 30 CFR

817.41(j) and 817.121(c)(2) for all underground mining activities

conducted in the States after October 24, 1992.

(4) State and OSM enforcement. If the State has statutory or

regulatory provisions in place that correspond to some but not all of

the requirements of the Federal regulations at 30 CFR 817.41(j) and

817.121(c)(2) and the State has authority to implement its provisions

for all underground mining activities conducted after October 24, 1992,

then the State would enforce its provisions for these operations. OSM

would then enforce those provisions of 30 CFR 817.41(j) and

817.121(c)(2) that are not covered by the State provisions for these

operations.

If the State has statutory or regulatory provisions in place that

correspond to some but not all of the requirements of the Federal

regulations at 30 CFR 817.41(j) and 817.121(c)(2) and if the State's

authority to enforce its provisions applies to operations conducted on

or after some date later than October 24, 1992, the State would enforce

its provisions for these operations on and after the provisions'

effective date. OSM would then enforce 30 CFR 817.41(j) and

817.121(c)(2) to the extent the State statutory and regulatory

provisions do not include corresponding provisions applicable to all

underground mining activities conducted after October 24, 1992; and OSM

would enforce those provisions of 30 CFR 817.41(j) and 817.121(c)(2)

that are included in the State program but are not enforceable back to

October 24, 1992, for the time period from October 24, 1992, until the

effective date of the State's rules.

As described in item numbers (3) and (4) above, OSM would directly

enforce in total or in part its Federal statutory or regulatory

provisions until the State adopts and OSM approves, under 30 CFR part

732, the State's counterparts to the required provisions. However, as

discussed in item number (1) above, OSM could decide not to initiate

direct Federal enforcement and rely instead on the 30 CFR part 732

State program amendment process.

In those situations where OSM determined that direct Federal

enforcement was necessary, the ten-day notice provisions of 30 CFR

843.12(a)(2) would not apply. That is, when on the basis of a Federal

inspection OSM determined that a violation of 30 CFR 817.41(j) or

817.121(c)(2) existed, OSM would issue a notice of violation or

cessation order without first sending a ten-day notice to the State.

Also under direct Federal enforcement, the provisions of 30 CFR

817.121(c)(4) would apply. This regulation states that if damage to any

noncommercial building or occupied residential dwelling or structure

related thereto occurs as a result of earth movement within an area

determined by projecting a specified angle of draw from the outermost

boundary of any underground mine workings to the surface of the land

(normally a 30 degree angle of draw), a rebuttable presumption exists

that the permittee caused the damage.

Lastly, under direct Federal enforcement, OSM would also enforce

the new definitions at 30 CFR 701.5 of ``drinking, domestic or

residential water supply,'' ``material damage,'' ``non-commercial

building,'' ``occupied dwelling and structures related thereto,'' and

``replacement of water supply'' that were adopted with the new

underground mining performance standards.

OSM would enforce 30 CFR 817.41(j), 817.121(c) (2) and (4), and 30

CFR 701.5 for operations conducted after October 24, 1992.

C. Enforcement in Illinois

By letter to Illinois dated December 14, 1994, OSM requested

information from Illinois that would help OSM decide which approach to

take in Illinois to implement the new requirements of section 720(a) of

SMCRA and the implementing Federal regulations (Administrative Record

No. IL-1530). By letter dated February 7, 1995, Illinois responded to

this OSM request (Administrative Record No. IL-1531).

Illinois stated that 25 underground coal mines were active in

Illinois after October 24, 1992. Illinois stated that the Illinois

program does not fully authorize enforcement of the new structural

repair and water replacement requirements of section 720(a) of SMCRA

and the implementing Federal regulations. Specifically, Illinois

indicated that the State program excludes water supplies, and Illinois

believes no authority exists to retroactively apply a state regulation.

Illinois has no formal regulation or policy on water replacement due to

diminution or contamination from mine subsidence. Illinois also stated

that it does not have authority to investigate citizen complaints of

water loss caused by underground mining operations conducted after

October 24, 1992.

Nevertheless, in the few instances where water loss was part of a

citizen complaint, Illinois has investigated and worked with the

citizen and company to address allegations of water loss or

contamination if attributed to mine subsidence. Illinois has

investigated two citizen complaints alleging subsidence-related water

supply loss or contamination as a result of underground mining

operations conducted after October 24, 1992: (1) Complaint No. 1

alleged that a spring fed stream went dry, and the stream served the

land owner by watering cattle. The mining may or may not have occurred

after October 24, 1992. The spring fed stream crosses both pre- and

post- October 24, 1992, mining panels. The coal company immediately

provided a trough and trucked water for continued cattle watering. The

coal company has since installed a waterline to a cattle watering

device to maintain the water supply. (2) Complaint No. 2 alleged well

water developed odor and different taste as a result of mining adjacent

to but not under the well. Illinois sampled the water and found no

quality problems that could be attributable to mining. This land owner

is also connected to a public water supply in addition to the private

well.

On February 3, 1995, Illinois proposed water replacement

regulations.

Proposed 62 Ill. Adm. Code 1817.121(c)(3) requires the operator to:

Promptly replace any drinking, domestic, or residential water

supply from a well or spring in existence prior to the application

for a surface coal mining and reclamation operations permit, which

has been affected by contamination, dimuntion, or interruption

resulting from underground coal mining operations.

Once passed and a date is established, the application form will be

revised appropriately. Illinois' current rulemaking package should be

finalized in a year or less. In addition to proposed [[Page 17736]] 62

Ill. Adm. Code 1817.121(c)(3), an inventory of all drinking, domestic

and residential water supplies in place at the time of permitting will

be necessary to fully implement section 720(a)(2) of SMCRA. Based on

this information, Illinois may require pre- and post-mining monitoring

of certain planned subsidence operations. This will be determined on a

case by case basis.

II. Public Comment Procedures

OSM is requesting public comment to assist OSM in making its

decision on which approach to use in Illinois to implement the

underground coal mine performance standards of section 720(a) of SMCRA,

the implementing Federal regulations, and any counterpart State

provisions.

A. Written Comments

Written comments should be specific, pertain only to the issues

addressed in this notice, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Springfield Field Office

will not necessarily be considered in OSM's final decision or included

in the Administrative Record.

B. Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., C.S.T.

on April 24, 1995. The location and time of the hearing will be

arranged with those persons requesting the hearing. If no one requests

an opportunity to testify at the public hearing, the hearing will not

be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to speak have been heard. Persons in the audience who

have not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the audience who wish

to speak have been heard.

Any disabled individual who has need for a special accommodation to

attend a public hearing should contact the individual listed under FOR

FURTHER INFORMATION CONTACT.

C. Public Meeting

If only a few persons request an opportunity to speak at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss recommendations on

how OSM and Illinois should implement the provisions of section 720(a)

of SMCRA, the implementing Federal regulations, and/or the counterpart

State provisions, may request a meeting by contacting the person listed

under FOR FURTHER INFORMATION CONTACT. All such meetings will be open

to the public and, if possible, notices of meetings will be posted at

the locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the Administrative Record.

Dated: March 31, 1995.

Richard J. Seibel,

Acting Assistant Director, Eastern Support Center.

[FR Doc. 95-8639 Filed 4-6-95; 8:45 am]

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