[Federal Register Volume 63, Number 237 (Thursday, December 10, 1998)]
[Proposed Rules]
[Pages 68218-68221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32745]


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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]
BILLING CODE 4310-05-P