[Federal Register Volume 64, Number 233 (Monday, December 6, 1999)]
[Rules and Regulations]
[Pages 68024-68031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31516]


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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.

----------------------------------------------------------------------------------------------------------------
             Topic                State regulation                        Federal regulation
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------

    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]]



----------------------------------------------------------------------------------------------------------------
   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).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 99-31516 Filed 12-3-99; 8:45 am]
BILLING CODE 4310-05-P