Illinois Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-096-FOR]

Illinois Regulatory Program

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

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing receipt of an amendment to the Illinois

regulatory program (Illinois program) under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). Illinois proposes revisions to and

additions of regulations concerning definitions, hydrologic and

subsidence control plan permit application requirements for underground

mining operations, and hydrologic balance protection and subsidence

control performance standards for underground mining operations.

Illinois intends to revise its program to be consistent with the

corresponding Federal regulations.

This document gives the times and locations that the Illinois

program and the 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 will be followed for

the public hearing, if one is requested.

DATES: Written comments must be received by 4:00 p.m., e.s.t., January

11, 1999. If requested, we will hold a public hearing on the amendment

on January 4, 1999. We will accept requests to speak at the hearing

until 4:00 p.m., e.s.t. on December 28, 1998.

ADDRESSES: You should mail or hand deliver written comments and

requests to speak at the hearing to Andrew R. Gilmore, Director,

Indianapolis Field Office, at the address listed below.

You may review copies of the Illinois program, the amendment, a

listing of any scheduled public hearings, and all written comments

received in response to this document at the addresses 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 Field Office.

Andrew R. Gilmore, Director, Indianapolis Field Office, Office of

Surface Mining, Minton-Capehart Federal Building, 575 North

Pennsylvania Street, Room 301, Indianapolis, Indiana 46204, Telephone:

(317) 226-6700.

Illinois Department of Natural Resources, Office of Mines and

Minerals, 524 South Second Street, Springfield, Illinois 62701-1787,

Telephone (217) 782-4970.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,

Indianapolis Field Office. Telephone: (317) 226-6700. Internet:

[email protected]

SUPPLEMENTARY INFORMATION:

I. Background on the Illinois Program

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. Description of the Proposed Amendment

By letter dated November 24, 1998 (Administrative Record No. IL-

5028), Illinois sent us an amendment to its program under SMCRA.

Illinois sent the amendment in response to our letter dated May 20,

1996 (Administrative Record No. IL-1900), that we sent to Illinois

under 30 CFR 732.17(c). The amendment also includes changes made at

Illinois' own initiative. Illinois proposes to amend its regulations at

Title 62 of the Illinois Administrative Code (IAC). Below is a summary

of the changes proposed by Illinois. The full text of the program

amendment is available for your inspection at the locations listed

above under ``ADDRESSES.''

1. 62 IAC 1701.Appendix A Definition of Drinking, Domestic or

Residential Water Supply

Illinois proposes to add the following definition for ``drinking,

domestic or residential water supply'':

`Drinking, domestic or residential water supply' means water

received from a well or spring and any appurtenant delivery system

that provides water for direct human consumption or household use.

Wells and springs that serve only agricultural, commercial or

industrial enterprises are not included except to the extent the

water supply is for direct human consumption or human sanitation, or

domestic use.

2. 62 IAC 1701.Appendix A Definition of Material Damage

Illinois proposes the following definition for ``material damage'':

[[Page 68219]]

`Material damage,' in the context of Sections 1784.20 and

1817.121 of this Part, means:

Any functional impairment of surface lands, features, structures

or facilities;

Any physical change that has a significant adverse impact on the

affected land's capability to support any current or reasonably

foreseeable uses or causes significant loss in production or income;

or

Any significant change in the condition, appearance or utility

of any structure or facility from its pre-subsidence condition.

3. 62 IAC 1701.Appendix A Definition of Replacement of Water Supply

Illinois proposes to define ``replacement of water supply'' as

follows:

`Replacement of water supply' means, with respect to protected

water supplies contaminated, diminished, or interrupted by coal

mining operations, provision of water supply on both a temporary and

permanent basis equivalent to premining quantity and quality.

Replacement includes provision of an equivalent water delivery

system and payment of operation and maintenance costs in excess of

customary and reasonable delivery costs for premining water

supplies.

Upon agreement by the operator and the water supply owner, the

obligation to pay such operation and maintenance costs may be

satisfied by a one-time payment in an amount which covers the

present worth of the increased annual operation and maintenance

costs for a period agreed to by the permittee and the water supply

owner. In conjunction with this requirement, the applicant shall

provide a plan for determining an appropriate present worth amount

and describe how to resolve disputes between the land owner and the

applicant over this amount.

If the affected water supply was not needed for the land use in

existence at the time of loss, contamination or diminution, and if

the supply is not needed to achieve the postmining land use,

replacement requirements may be satisfied by demonstrating that a

suitable alternative water source is available and could feasibly be

developed. If the latter approach is selected, written concurrence

must be obtained from the water supply owner.

4. 62 IAC 1784.14 Hydrologic Information

At 62 IAC 1784.14(e)(3)(D), Illinois proposes 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 or adjacent areas.

5. 62 IAC 1784.20 Subsidence Control Plan

Illinois is removing the existing language and proposing to add the

following provisions at 62 IAC 1784.20:

a. Section 1784.20(a)(1) requires the pre-subsidence survey to

include a map of the permit, shadow and adjacent areas at a scale of

1:12,000 or larger if determined necessary. The map must show the

location and type of structures and renewable resource lands that

subsidence may materially damage or for which the value or reasonably

foreseeable use may be diminished by subsidence. It must also show the

location and type of drinking, domestic and residential water supplies

that could be contaminated, diminished or interrupted by subsidence.

b. Section 1784.20(a)(2) requires the pre-subsidence survey to

include a narrative addressing the potential impacts of subsidence on

the protected structures or renewable resource lands and protected

water supplies.

c. Section 1784.20(a)(3) requires the pre-subsidence survey to

include identification of the premining condition of all protected

structures and facilities within the area of the applicable angle of

draw and a survey of the quantity and quality of all protected water

supplies. Section 1784.20(a)(3) also requires that if the applicant

cannot make this survey because the owner will not allow access to the

site, the applicant must notify the owner, in writing, of the effect

that denial of access will have as described in Section

1817.121(c)(3)(C). The applicant must pay for any technical assessment

or engineering evaluation used to determine the pre-mining condition or

value of the protected structures and facilities and the protected

water supplies. Copies of the survey and any technical assessment or

engineering evaluation must be provided to the property owner. The

survey of structures and facilities must be maintained at the mine

office and provided upon request. The survey of water must be provided

to the Illinois Department of Natural Resources, Office of Mines and

Minerals (Department).

d. At section 1784.20(b), if the survey shows that no protected

structures, renewable resource lands, or water supplies would be

impacted as a result of mine subsidence, and if the Department agrees,

no further information need be provided. If the survey shows that

structures, renewable resource lands or water supplies exist and that

subsidence could impact them, the application must include a subsidence

control plan.

e. Section 1784.20(b)(1) requires the subsidence control plan to

contain a description of the method of coal removal.

f. Section 1784.20(b)(2) requires a map of the underground workings

that describes the location and extent of the areas in which planned

subsidence mining methods will be used and that identifies all areas

where measures will be taken to prevent or minimize subsidence and

subsidence-related damage and, when applicable, to correct subsidence-

related material damage.

g. Section 1784.20(b)(3) requires the pre-subsidence survey to

include a description of the physical conditions, such as depth of

cover, seam thickness and lithology of overlying and underlying strata.

h. Section 1784.20(b)(4) requires a description of the monitoring,

if any, needed to determine the commencement and degree of subsidence.

i. For those areas where planned subsidence is not projected,

section 1784.20(b)(5) requires the subsidence control plan to include a

detailed description of the subsidence control measures that will be

taken to prevent or minimize subsidence and subsidence-related damage.

A list of possible measures to be taken is contained in subsection

(b)(5) (A) through (E).

j. Section 1784.20(b)(6) requires the subsidence control plan to

include a description of the anticipated effects of planned subsidence,

if any.

k. For those areas where planned subsidence is projected to be

used, section 1784.20(b)(7) requires the subsidence control plan to

include a description of methods to be employed to minimize damage to

structures and facilities; or the written consent of the owner of the

structure or facility that minimization measures not be taken; or,

unless the anticipated damage would constitute a threat to health or

safety, a demonstration that the costs of minimizing damage exceed the

anticipated costs of repair.

l. Section 1784.20(b)(8) requires the subsidence control plan to

include a description of the measures to be taken to replace adversely

affected protected water supplies or to mitigate or remedy any

subsidence-related material damage to the land and protected

structures. The applicant must provide a description of measures to be

taken to determine the degree of material damage or diminution of value

or foreseeable use of the surface and structures potentially impacted

and the impact on water quality or quantity. The applicant must also

provide a plan for resolving

[[Page 68220]]

disputes between the landowner and the operator over the amount, level

or degree of damage.

m. Section 1784.20(b)(9) requires other information specified by

the Department.

6. 62 IAC 1817.41 Hydrologic Balance Protection

Illinois proposes to add the following new provision at 62 IAC

1817.41(j):

Drinking, domestic or residential water supply. The operator

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 Sections 1780.21 and 1784.14 of

this Part and the geologic information concerning baseline

hydrologic conditions required in Sections 1781.21 and 1784.22 of

this Part will be used to determine the impact of mining activities

upon the water supply.

7. 62 IAC 1817.121 Subsidence Control

Illinois proposes the following revisions to 62 IAC 1817.121:

a. At section 1817.121(a), Illinois added the heading ``Measures to

prevent or minimize damage''; numbered the existing language in the

first sentence as subsection (a)(1); and removed the last sentence.

b. At new subsection (a)(2), if an operator employs mining

technology that provides for planned subsidence, Illinois requires the

operator to take necessary and prudent measures to minimize material

damage to the extent technologically and economically feasible to

structures and facilities. Measures to minimize material damage are not

required if the operator has the written consent of the owners; or

unless the anticipated damage would constitute a threat to health or

safety, the costs of such measures exceed the anticipated costs of

repair. Written consent or cost analysis must be provided to the

Department 60 days prior to performing planned subsidence operations

under a structure or prior to extraction occurring within 1000 feet of

a protected structure. A lesser time period or distance may be employed

if approved in writing.

c. Section 1817.121(a)(3) provides that nothing in this Part

prohibits the standard method of room-and-pillar mining.

d. At section 1817.121(c), Illinois added the heading ``Repair of

damage.''

e. At subsection (c)(1), Illinois added the heading ``Repair of

damage to surface lands.''

f. 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 operator 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 operator must fully rehabilitate,

restore or replace the damaged structure. If compensation is selected,

the operator must compensate the owner of the damaged structure for the

full amount of the decrease in value resulting from the subsidence-

related damage. The operator 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.

g. At section 1817.121(c)(3), Illinois added the heading

``Rebuttable presumption of causation by subsidence'' and removed the

existing language.

h. New subsection (c)(3)(A) requires that if damage to any

structure or facility 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, a rebuttable presumption exists that the operator caused the

damage. The presumption will apply to a 30-degree angle of draw.

i. At new subsection (c)(3)(B), Illinois allows an operator to

request that the presumption apply to a different angle of draw. The

Department may approve application of the presumption to a site-

specific angle of draw based on a site-specific analysis submitted by

the applicant. To establish a site-specific angle of draw, an operator

must demonstrate that the proposed angle of draw has a more reasonable

basis than the standard. It must be based on a site-specific

geotechnical analysis of the potential surface impacts of the mining

operation.

j. Subsection (c)(3)(C) provides that if the operator was denied

access to the land or property for the purpose of conducting the pre-

subsidence survey, no rebuttable presumption will exist.

k. At subsection (c)(3)(D), Illinois provides some examples of a

rebuttal of presumption. The presumption will be rebutted if the

evidence establishes that the damage predated the mining in question;

the damage was proximately caused by some other factor or factors; or

the damage occurred outside the surface areas within which subsidence

was actually caused by the mining in question.

l. Subsection (c)(3)(E) provides that all relevant and reasonably

available information will be considered by the Department in any

determination of whether damage to protected structures was caused by

subsidence from underground mining.

m. New subsection (c)(4) 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. 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 operator

demonstrates that subsidence is not complete, that not all probable

subsidence-related material damage has occurred, or that not all

reasonable anticipated changes have occurred. The operator may also use

appropriate terms and conditions for liability insurance to assure that

the financial responsibility to comply with subsection (c) is in place.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are requesting

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 Illinois program.

Written Comments

Your written comments should be specific and pertain only to the

issues proposed in this rulemaking. You should explain the reason for

any recommended change. In the final rulemaking, we will not

necessarily consider or include in the Administrative Record any

comments received after the time indicated under DATES or at locations

other than the Indianapolis Field Office.

Public Hearing

If you wish to speak at the public hearing, contact the person

listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on

December 28, 1998. We will arrange the location and time of the hearing

with those persons requesting the hearing. If you are disabled and need

special accommodations to attend a public hearing, contact the

individual listed under FOR FURTHER INFORMATION

[[Page 68221]]

CONTACT. The hearing will not be held if no one requests an opportunity

to speak at the public hearing.

You should file a written statement at the time you request the

hearing. This will allow us to prepare responses and appropriate

questions. The public hearing will continue until all persons scheduled

to speak have been 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 all

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

to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. If you wish

to meet with us to discuss the amendment, 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 also

make a written summary of each meeting a part of the Administrative

Record.

IV. 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 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: December 2, 1998.

Charles Sandberg,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 98-32745 Filed 12-9-98; 8:45 am]

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