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May 24, 1985


The opinion of the court was delivered by: Foreman, Chief Judge:


Before the Court is defendant Old Ben Coal Company's Motion to Dismiss plaintiffs' Complaint. Plaintiffs claim that defendant's longwall mining operation has caused the surface of the land owned and occupied by plaintiffs to subside, thereby resulting in damage to plaintiffs' dwelling, swimming pool, and outbuildings. Count I of plaintiffs' Complaint alleges a statutory claim for relief founded on Chapter 96 1/2, ¶ 7904.02 of the Illinois Revised Statutes. Count II alleges negligence, and Count III alleges willful and wanton misconduct. In Counts IV, V, VI, VII, VIII, and IX, plaintiffs complain that defendant's conduct caused emotional distress and loss of consortium.

Defendant contends that its mining operations were not subject to ¶ 7904.02 at the time of the alleged violation for three reasons. First, according to defendant, the mine at issue was operating pursuant to an interim permit and therefore was not subject to provisions of the Illinois Surface Coal Mining Land Conservation and Reclamation Act requiring subsidence prevention. Second, defendant argues that ¶ 7904.02 does not apply to longwall mining because such technology involves planned subsidence. Third, defendant asserts that the language in plaintiffs' deed expressly waived the right to recover for any liability resulting from defendant's coal mining activities.

Congress enacted the Surface Mining Control and Reclamation Act of 1977, P.L. 95-87, 91 Stat. 445, 30 U.S.C. § 1201 et seq., ("SMCRA"), which required that all coal mining operations in the United States be governed by federal coal mining reclamation regulations or, alternatively, by state reclamation laws and regulations which met federal standards and which were approved by the Office of Surface Mining Reclamation and Enforcement ("OSM"). The OSM promulgated federal coal mining reclamation regulations in two stages: (1) Federal Interim Program Regulations, 30 C.F.R. Subchapter B, §§ 710-725 (1977); and (2) Federal Permanent Program Regulations, 30 C.F.R. Subchapters A, C, D, F, G, J-L (1979). Illinois participated in the Federal Interim Program upon OSM approval of the Illinois Interim Coal Mining Reclamation Program, Act of August 11, 1978, P.A. 80-1342, 1978 Ill.Laws 1005. Neither the federal nor the state interim programs mandated subsidence prevention.

After the Federal Permanent Program Regulations were issued, Illinois enacted the Surface Coal Mining Land Conservation and Reclamation Act, Ill.Rev.Stat. ch. 96 1/2, § 7901 et seq. (1983), ("Illinois Permanent Act"). The Illinois Permanent Coal Mining Reclamation Program, which includes the Illinois Permanent Act and the Surface Coal Mining Land Conservation and Reclamation Act State Program Rules and Regulations, was conditionally approved by the Secretary of the Interior on June 1, 1982. See 30 C.F.R. § 913.10 (1984); 47 Fed.Reg. 23883 (1982). Both the federal and the state permanent programs mandate subsidence prevention. 30 U.S.C. § 1266(b)(1); Ill.Rev.Stat. ch. 96 1/2, ¶ 7904.02.

Defendant contends that because it is operating under an interim permit and has not yet been issued a permanent permit, it is not required to follow the performance standards for underground mining found in Article IV of the Illinois Permanent Act and in Parts 1810-1828 of the Permanent Program Regulations. Article IV of the Illinois Permanent Act, using substantially the same language found in the federal SMCRA, provides in part:

7904.01. General requirement.

    § 4.01. General Requirement. Each person
  conducting underground mining operations shall as a
  minimum comply with all applicable performance
  standards set forth in this Article. Each permit
  issued under this Act to conduct underground mining
  operations shall require as a minimum that such
  operations meet all applicable requirements set
  forth in this Article.

7904.02. Subsidence.

    § 4.02. Subsidence. Each operator shall adopt
  measures consistent with known technology in order
  to prevent subsidence causing material damage to
  the extent technologically and economically
  feasible, maximize mine stability, and maintain the
  value and reasonably foreseeable use of surface
  lands, except in those instances where the mining
  technology used requires planned subsidence in a
  predictable and controlled manner. Nothing in this
  Section shall be construed to prohibit the standard
  method of room and pillar mining.

The Court notes that ¶ 7904.01, set forth above, consists of two sentences: one mandates that "[e]ach person" comply with performance standards, and the other mandates that "[e]ach permit issued" shall meet all requirements of Article IV. It appears to the Court that the Illinois General Assembly clearly intended compliance with performance standards set forth in Article IV of the Illinois Permanent Act regardless of whether a permanent permit had been issued under the Act. To find otherwise would require the Court to completely ignore the first sentence in ¶ 7904.01.

The Court further notes that ¶ 7904.02 requires "[e]ach operator" to comply with subsidence prevention standards. Defendant would have the Court interpret this language narrowly to mean that only "each permanent permittee" need comply. Had the Illinois General Assembly intended such a narrow reading of this language, it could have expressly limited the applicability of the performance standards to permanent permittees. The Court, therefore, finds that the performance standards found in Article IV of the Illinois Permanent Act, on its face, are applicable to the operations of defendant Old Ben, as well as to the operations of all operators of coal mines in Illinois.

The Illinois legislature did not intend to establish requirements that are more stringent than federal requirements. Ill.Rev.Stat. ch. 96 1/2, § 7901.02(c). The Court has examined the federal permanent regulation relevant to the instant case regarding subsidence control (30 C.F.R. § 817.121), has compared this regulation to the analogous Illinois regulations (62 Ill. Admin.Code §§ 1817.121, 1817.124), and has determined that the Illinois subsidence control provisions are substantially similar, and not more stringent, than the federal provisions.

Illinois subsidence control measures, including Article IV of the Illinois Permanent Act and §§ 1817.121 and 1817.124 of the Illinois regulations, were applicable eight months after the date of approval of the Illinois program by the Secretary of the Interior. 62 Ill.Admin.Code § 1700.11(f). As the approval date was June 1, 1982, the date the Illinois subsidence provisions were applicable was February 1, 1983. The fourth paragraph of § 1700.11(f) further provides that by February 1, 1983, an operator is required to "obtain a permit issued by the Department pursuant to the approved permanent program," subject to certain exceptions.

This Court has previously interpreted the transition section of the Illinois Permanent Act, ¶ 7909.08, as facilitating an orderly transition from the Interim Act by allowing interim permits continued viability, under certain circumstances, until permanent permit applications are acted upon by the Department of Mine and Minerals. See Phillips v. Old Ben Coal Company, No. 84-4442 (S.D.Ill. Sept. 21, 1984). In Phillips, the Court found that § 1700.11(b) and § 1771.11(a) of the regulations operated to avoid the unreasonable result of forcing operations under interim permits to shut down until permanent permits could be issued. Defendant would now have the Court interpret these provisions to reach the ...

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