[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38677-38680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18610]



-----------------------------------------------------------------------


DEPARTMENT OF THE INTERIOR
30 CFR Part 913


Illinois Regulatory Program

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

ACTION: Notice of decision.

-----------------------------------------------------------------------

SUMMARY: OSM is announcing its decision on initial enforcement of 
underground coal mine subsidence control and water replacement 
requirements in Illinois. Amendments to the Surface Mining Control and 
Reclamation Act of 1977 (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 and promptly replace drinking, 
domestic, and residential water supplies that have been adversely 
affected by underground coal mining. After consultation with Illinois, 
OSM has decided that initial enforcement in Illinois will be 
accomplished through the State program amendment process for the water 
replacement provisions and State enforcement for the repair or 
compensation of material damage provisions.

EFFECTIVE DATE: July 28, 1995.

FOR FURTHER INFORMATION CONTACT:
Keith M. Shank, Acting Director, Springfield Field Office, OSM, 511 
West Capitol, Suite 202, Springfield, Illinois 62704, Telephone: (217) 
492-4495.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Energy Policy Act

    Section 2504 of the Energy Policy Act of 1992, Pub. L. 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 

[[Page 38678]]
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 under ground 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).
    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.

    Alternative OSM enforcement decisions. 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 in the April 7, 
1995, Federal Register (60 FR 17734) and as reiterated below, 
enforcement could be accomplished by State, OSM, or joint State and OSM 
enforcement of the requirements, or by a State after it has amended its 
program.

    (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 States. 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 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 State 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 items (3) and (4) above, OSM could directly enforce 
in total or in part the applicable Federal 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 
(1) above, OSM could decide not to initiate direct Federal enforcement 
but rather to 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 implement 
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
    Illinois program activity, requirements, and enforcement. By letter 
to Illinois dated December 14, 1994, OSM requested information that 
would be useful in determining how to implement section 720(a) of SMCRA 
and the implementing Federal regulations in Illinois (Administration 
Record No. IL-1530). By letter dated February 7, 1995, Illinois 
responded to this 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 water 

[[Page 38679]]
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 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 landowner 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 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 landowner 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, diminution, 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 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.
    By letter dated April 25, 1995, Illinois stated that the approved 
regulatory program administered by the Illinois Department of Mines and 
Minerals, Land Reclamation Division (Department) is in compliance with 
the subsidence-related mandates of the Energy Policy Act 
(Administrative Record No. IL-1533). Specifically:
    Illinois' current regulations codified at 62 Ill. Adm. Code 
1817.121(c)(2) require repair or compensation for subsidence-related 
material damage to any structure. This would include repair of or 
compensation for damage to water delivery systems such as wells, 
cisterns and water lines.
    On February 3, 1995, the Department submitted a proposed regulatory 
program amendment to OSM that requires the replacement of drinking, 
domestic and residential water supplies adversely affected by 
underground coal mining operations. The Department's proposed amendment 
mirrors the Energy Policy Act's language regarding water replacement.
    The Department has conducted a survey of the six coal companies 
that conduct planned subsidence coal mining operations in Illinois. 
This survey has proven that water replacement is rarely an issue in 
this State. First of all, underground coal mining operations are 
conducted in thinly populated rural areas; very few residences are ever 
impacted by planned subsidence operations. Secondly, of the six 
companies survey, two companies purchase all residences prior to 
mining, one company avoids residences in its high extraction retreat 
mining operation, and the other three companies have existing internal 
policies providing for water replacement should the need arise.
    The Department has received only two citizen's complaints involving 
water replacement issues during the period from October 24, 1992, 
through the present. The Department thoroughly investigated each 
complaint and worked with the companies involved to resolve any 
disputes. One complaint proved to be unfounded. The other complaint was 
successfully resolved when a waterline was installed. The Department 
received excellent cooperation from the companies involved during the 
course of these investigations and is confident that it can effectively 
resolve any future water replacement issues. However, as previously 
indicated, the likelihood of receiving any further complaints regarding 
this issue is extremely remote.
    In summary, the Department is effectively implementing the Energy 
Policy Act in Illinois. The Department's regulations currently require 
underground coal mine operators to repair or compensate for subsidence-
related damage to structures, as mandated by the Energy Policy Act. In 
addition, the Department will diligently pursue finalization of the 
water replacement regulations currently pending with OSM in order to 
formally render Illinois' coal mine regulatory program no less 
effective than counterpart Federal regulations. Finally, the Department 
will continue to conduct thorough investigations of any water 
replacement complaints that do arise and work with coal mining 
companies and the public at large to resolve disputes relating to this 
issue.
    Comments. On April 7, 1995, OSM published in the Federal Register 
(60) FR 17734) an opportunity for a public hearing and a request for 
public comment to assist OSM in making its decision on how the 
underground coal mine subsidence control and water replacement 
requirements should be implemented in Illinois. The comment period 
closed on May 8, 1995. Because OSM did not receive a request for one. 
OSM did not hold a public hearing. OSM did not receive any comments in 
response to its notice.
    Director's Decision. Based on the information provided by Illinois, 
the Director has decided that initial enforcement of the water 
replacement requirements in Illinois is not reasonably likely to be 
required and that implementation will be accomplished through the State 
program amendment process. On February 3, 1995, Illinois submitted a 
proposed regulatory program amendment to OSM that requires the 
replacement of drinking, domestic, and residential water supplies 
adversely affected by underground coal mining operations. These 
revisions are intended to make the Illinois regulations consistent with 
the revised Federal regulations. Twenty-five underground mines produced 
coal in Illinois since October 24, 1992.
    There have been only two citizen complaints concerning water 
replacement issues and Illinois has investigated them in a thorough and 
complete manner. Once Illinois has amended its program to be in 
accordance with the revised SMCRA and Federal regulations, it will 
enforce its State statutory and regulatory provisions. The Director has 
decided that initial enforcement of the underground coal mine 
subsidence 

[[Page 38680]]
control requirements will be accomplished through State enforcement 
since Illinois has regulatory provisions in place that correspond to 
the Federal regulations at 30 CFR 817.121(c) and has the authority to 
implement them for all underground mining activities conducted after 
October 24, 1992.
    If circumstances within Illinois change significantly, the Director 
may reassess this decision. Formal reassessment of this decisions would 
be addressed by Federal Register notice.

    Dated: July 24, 1995.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 95-18610 Filed 7-27-95; 8:45 am]
BILLING CODE 4310-05-M