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MELVIN v. OLD BEN COAL CO.

United States District Court, Southern District of Illinois, Benton Division


May 24, 1985

DANNY MELVIN AND JANET MELVIN, INDIVIDUALLY AND AS NEXT FRIEND OF SHANIE MELVIN, A MINOR, PLAINTIFFS,
v.
OLD BEN COAL COMPANY, A CORPORATION, DEFENDANT.

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

MEMORANDUM AND ORDER

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 unreasonable result of authorizing it to ignore performance standards merely because the Department of Mines and Minerals is delinquent in processing permanent permit applications.

The permit requirements mentioned above provide:

§ 1700.11(b)

    Any person who conducts surface coal mining and
  reclamation operations on or after 8 months from
  the date of approval of the State program or
  implementation of a Federal program shall have a
  permit issued pursuant to the applicable State or
  Federal program. However, under conditions
  specified in Section 1771.11(a), a person may
  continue operations under a previously issued
  permit after 8 months from the effective date of
  the State Act and these regulations.

§ 1771.11(a)

    A person conducting surface coal mining
  operations, under a permit issued or amended by
  the Department in accordance with the
  requirements of the interim program, may conduct
  these operations beyond the prescribed period in
  Section above, if —

    (1) Timely and complete application for a
  permit under the permanent regulatory program has
  been made to the Department in accordance with
  the provisions of the State Act, Parts 1770-1795,
  and the regulatory program. For the purposes of
  this Part 1771, a complete application is one on
  which the applicant has made an apparent
  good-faith effort to adequately address the
  portions of the application pertaining to the
  operation to be permitted.

    (2) The Department has not rendered an initial
  decision with respect to such application; and

    (3) The operations are conducted in compliance
  with all terms and conditions

  of the interim permit, the requirements of the
  Act, the State Act, and Parts 1770-1975 of these
  regulations.

As this Court noted in Phillips v. Old Ben Coal Company, No. 84-4442 (S.D.Ill. Sept. 21, 1984), surface mining includes the surface impact of underground coal mining operations. See Ill.Rev.Stat. ch. 96 1/2, § 4520(c) (1971); 30 U.S.C.A. § 1291; §§ 1.27, 1.29, 2.6 Illinois Interim Program Regulations. The language in § 1771.11(a)(3) above expressly requires operators under an interim permit to conduct operations in compliance with the Illinois Permanent Act, which includes ¶ 7904.02 regarding subsidence prevention.

Defendant's contention that it is exempt from subsidence prevention provisions places great reliance on § 1700.11(c) of the regulations, which provides as follows:

  The requirements of Parts 1810-1828 of these
  regulations shall be effective and shall apply to
  each surface coal mining and reclamation
  operation which is required to obtain a permit
  under the Act, and the State Act on the earliest
  date upon which the Act, the State Act, and these
  regulations require a permit to be obtained
  except as provided in Paragraph (e) of this
  Section.

Defendant's logic, in essence, is that because it has been allowed to operate under an interim permit, it is not an "operation which is required to obtain a permit under the Act." The fact is, however, that defendant is operating under a permit authorized under the Act. See Phillips v. Old Ben Coal Company, No. 84-4442 (S.D.Ill. Sept. 21, 1984). Had defendant not been found to have met the conditions of § 1771.11(a), it may have been forced to shut down all operations for which a permanent permit application had not been processed and approved. To accept defendant's arguments in the instant case would be inconsistent with the Court's ruling in Phillips. For the foregoing reasons, the Court rejects defendant's argument that it is not required to follow performance standards under the Illinois Permanent Program.

Defendant argues that even if the Court finds that its operation under an interim permit requires compliance with the performance standards of the Illinois Permanent Act, defendant has not violated the subsidence prevention provision found at ¶ 7904.02 because it intentionally planned to subside plaintiff's property. According to defendant, all subsidence caused by longwall mining is automatically authorized under ¶ 7904.02 because longwall mining predictably causes subsidence. To accept defendant's analysis of ¶ 7904.02 would be to render the subsidence prevention provisions in the Illinois Permanent Act ineffective; operators would be required to prevent only accidental subsidence, but could engage in deliberate subsidence at will. The Court will not interpret ¶ 7904.02 to reach such an absurd result.

The interpretation of ¶ 7904.02 offered by defendant is not consistent with the regulations promulgated under the Illinois Permanent Program. The following regulations concern subsidence control:

  § 1817.121 Subsidence control: General
  requirements.

    (a) Underground mining activities shall be
  planned and conducted so as to make use of
  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 such surface lands, except those instances
  where the mining technology used requires planned
  subsidence in a predictable and controlled
  manner. Nothing in these regulations shall be
  construed to prohibit the standard method of room
  and pillar mining.

    (b) The person engaged in underground mining
  activities shall comply with all provisions of
  the subsidence control plan prepared pursuant to
  1784.20 and approved by the Department.

  § 1817.122 Subsidence control: Public notice.

    The mining schedule shall be distributed by
  mail to all owners of property and residents
  within the area above the underground workings
  and adjacent areas. Each such person shall be
  notified by mail at least six months prior to
  mining beneath his or her property and residence.
  The notification shall contain, as a minimum:

    (a) Identification of specific areas in which
  mining will take place;

    (b) Dates of mining activities that would cause
  subsidence and affect specific structures; and

    (c) Measures to be taken to prevent or control
  adverse surface effects.

  § 1817.124 Subsidence control: Surface owner
  protections.

    (a) Each person who conducts underground mining
  activities shall adopt all measures approved by
  the Department under 1784.20 to reduce the
  likelihood of subsidence, to prevent subsidence
  causing material damage or reducing the value or
  reasonably foreseeable use of surface lands, and
  to mitigate the effects of any such damage or
  reduction which may occur.

    (b) Each person who conducts underground mining
  which results in subsidence that causes material
  damage or reduces the value or reasonably
  foreseeable use of the surface lands shall, with
  respect to each surface area affected by
  subsidence —

    (1) Restore, rehabilitate, or remove and
  replace each damaged structure, feature or value,
  promptly after the damage is suffered, to the
  condition it would be in if no subsidence has
  occurred and restore the land to a condition
  capable of supporting reasonably foreseeable uses
  it was capable of supporting before subsidence;
  or

    (2) Purchase, the damaged structure or feature
  for its fair market, pre-subsidence value and
  shall promptly after subsidence occurs, to the
  extent technologically and economically feasible,
  restore the land surface to a condition capable
  and appropriate of supporting the purchases
  structure, and other foreseeable uses it was
  capable of supporting before mining. Nothing in
  this paragraph shall be deemed to grant or
  authorize an exercise of the power of
  condemnation or the right of eminent domain by
  any person engaged in underground mining
  activities; or

    (c) Each person who conducts underground mining
  activities will compensate the owner of any
  surface structure in the full amount of the
  diminution in value resulting from subsidence, by
  purchase prior to mining of noncancellable,
  premium prepaid insurance policy or other means
  approved by the Department as assuring before
  mining begins that payment will occur; indemnify
  every person with an interest in the surface for
  all damages suffered as a result of the
  subsidence and, to the extent technologically and
  economically feasible, fully restore the land to
  a condition capable of maintaining reasonably
  foreseeable uses which it could support before
  subsidence. § 1817.126 Subsidence control: Buffer
  zones.

    (a) Underground mining activities shall not be
  conducted beneath or adjacent to any perennial
  stream, or impoundment having a storage volume of
  20 acre-feet or more, unless the Department, on
  the basis of detailed subsurface information,
  determines that subsidence will not cause
  material damage to streams, water bodies and
  associated structures. If subsidence causes
  material damage, then measures will be taken to
  the extent technologically and economically
  feasible to correct the damage and to prevent
  additional subsidence from occurring.

    (b) Underground mining activities beneath any
  aquifer that serves as a significant source of
  water supply to any public water system shall be
  conducted so as to avoid disruption of the
  aquifer and consequent exchange of groundwater
  between the aquifer and other strata. The
  Department may prohibit mining in the vicinity of
  the aquifer or may limit the

  percentage of coal extraction to protect the
  aquifer and water supply.

    (c) Underground mining activities shall not be
  conducted beneath or in close proximity to any
  public buildings, including but not limited to
  churches, schools, hospitals, courthouses and
  government offices, unless the Department, on the
  basis of detailed subsurface information,
  determines that subsidence from those activities
  will not cause material damage to these
  structures and specifically authorizes the mining
  activities.

    (d) The Department shall suspend underground
  coal mining under urbanized areas, cities, towns,
  and communities, and adjacent to industrial or
  commercial buildings, major impoundments or
  permanent streams, if imminent danger is found to
  inhabitants of the urbanized areas, cities,
  towns, or communities.

An examination of the above regulations makes it clear that ¶ 7904.02 was not intended to authorize coal mine operators to unilaterally determine that they need not assume responsibility in any way for intentional and deliberate subsidence. Defendant's analysis of ¶ 7904.02 is clearly over-simplistic.

Defendant also asserts that because it had purchased mineral rights from plaintiffs' predecessor in title, who had waived the right to subadjacent support, defendant cannot be held liable for surface damage. Defendant cites to case law in support of its position dating as far back as 1880, and admonishes the Court not to "set aside a century of undisturbed Illinois law" upholding the validity of such waivers. The Court, however, considers that the Illinois legislature, by enacting the Illinois Permanent Act, has "disturbed" prior Illinois case law on the subject of subsidence control. The legislative declaration found in ¶ 7901.02 of the Illinois Permanent Act sets forth the policy of the state as regards the effect of coal mining on lands. This policy expressly includes "protecting the health, safety and general welfare of the people." Ill.Rev.Stat. ch. 96 1/2, ¶ 7901.02. To the extent that the waiver of surface support conflicts with the policy of Illinois regarding subsidence control, the waiver shall be unenforceable.

The remainder of plaintiffs' Complaint seeks recovery for emotional distress and loss of consortium. To allow such recovery, however, would be inappropriate under Illinois law. In Rickey v. Chicago Transit Authority, 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1 (1983), the Supreme Court of Illinois substituted the "zone-of-physical-danger rule" for the prior standard requiring contemporaneous injury or impact. Under the new rule, a viable cause of action exists for a bystander who suffers physical injury or illness resulting from emotional distress even when the bystander did not suffer a physical impact or injury at the time of the tortious act. However, the new rule requires that the bystander "must have been in such proximity to the accident in which the direct victim was physically injured that there was a high risk to him of physical impact." Rickey, 98 Ill.2d at 550, 75 Ill.Dec. at 215, 457 N.E.2d at 5. In the instant case, the "direct victim" is plaintiffs' property, not an injured person. The analysis in Rickey would not apply to allow recovery for analysis in Rickey would not apply to allow recovery for emotional distress resulting from damage to property, and plaintiffs explicitly deny that they have asserted a claim for the intentional infliction of emotional distress (plaintiffs' Memorandum in Opposition to Old Ben Coal Company's Motion to Dismiss Plaintiffs' Complaint [Document No. 23], at p. 28). Therefore, the Court is compelled to dismiss Counts IV, V, VI, VII, VIII, and IX of plaintiffs' Complaint.

Accordingly, defendant's Motion to Dismiss is hereby GRANTED IN PART AND DENIED IN PART. Counts IV, V, VI, VII, VIII, and IX of plaintiffs' Complaint are hereby DISMISSED; said Motion is hereby DENIED as to Counts I, II, and III.

IT IS SO ORDERED.

19850524

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