Illinois Regulatory Program

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