ILLINOIS REGULATORY PROGRAM ILLINOIS ADMINISTRATIVE CODE ("Ill. Adm. Code") TITLE 62 MINING CHAPTER I DEPARTMENT OF NATURAL RESOURCES PART 1761 AREAS DESIGNATED BY ACT OF CONGRESS 62 Ill. Adm. Code Sec. 1761.1 Scope 62 Ill. Adm. Code Sec. 1761.11 Areas Where Mining is Prohibited or Limited 62 Ill. Adm. Code Sec. 1761.12 Procedures AUTHORITY: Implementing and authorized by the Surface Coal Mining Land Conservation and Reclamation Act [225 ILCS 720]. SOURCE: Adopted at 4 Ill. Reg. 37, p. 1, effective June 1, 1982; amended at 6 Ill. Reg. 1, effective June 1, 1982; codified at 8 Ill. Reg. 4933; amended at 11 Ill. Reg. 7976, effective July 1, 1987; amended at 14 Ill. Reg. 11777, effective January 1, 1991; amended at 15 Ill. Reg. 17115, effective January 1, 1992; amended at 17 Ill. Reg. 10909, effective July 1, 1993; amended at 20 Ill. Reg. 1935, effective January 19, 1996; amended at 22 Ill. Reg. 20152, effective November 5, 1998. NOTE: Cross references to OSM's federal regulations and SMCRA appear in double braces to the right of the Rule or Section number, e.g., "62 Ill. Adm. Code Sec. 1774.13 PERMIT REVISIONS {{ 30 CFR 774.13 }}". The cross references were compiled using the preambles to OSM's approval of amendments to the Illinois regulatory program published in the Federal Register and from the file of Illinois regulatory material in the COALEX Library in LexisNexis. 62 Ill. Adm. Code Sec. 1761.1 SCOPE {{ 30 CFR 761.1 }} This Part establishes the procedures and standards to be followed in determining whether a proposed surface coal mining and reclamation operation can be permitted in light of the prohibitions and limitations in Section 7.01 of The Surface Coal Mining Land Conservation and Reclamation Act (The State Act) for those types of operations on certain Federal, public and private lands. 62 Ill. Adm. Code Sec. 1761.11 AREAS WHERE MINING IS PROHIBITED OR LIMITED {{ 30 CFR 761.11 }} a) Subject to valid existing rights, no surface coal mining operations shall be conducted after August 3, 1977, unless those operations existed on the date of enactment: 1) On any lands within the boundaries of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1276(a)) or study rivers or study river corridors as established in guidelines pursuant to that Act published at 47 FR 39454 (September 7, 1982), and National Recreation Areas designated by Act of Congress. The guidelines at 47 FR 39454 do not include any subsequent editions or amendments; 2) On any Federal lands within the boundaries of any national forest; provided, however, that surface coal mining operations may be permitted on such lands, if the Secretary of the United States Department of the Interior (Secretary) finds that there are no significant recreational, timber, economic, or other values which may be incompatible with surface coal mining operations; and surface operations and impacts are incident to an underground coal mine; 3) On any lands which will adversely affect any publicly owned park or any places included on the National Register of Historic Places, unless approved jointly by the Department and the Federal, State or local agency with jurisdiction over the park or places; 4) Within one hundred (100) feet measured horizontally of the outside right-of-way line of any public road, except: A) Where mine access roads or haulage roads join such right of way lines; or B) Where the Illinois Department of Natural Resources, Office of Mines and Minerals (Department) and the public road authority with jurisdiction over the road under Illinois law allows the public road to be relocated, closed, or where the Department allows the area affected to be within one hundred (100) feet of such road, after: i) Public notice and opportunity for a public hearing in accordance with Section 1761.12( c); and ii) Making a written finding that the interests of the affected public and landowners will be protected; 5) Within three hundred (300) feet measured horizontally, from any occupied dwelling in existence, under construction, or contracted for at the time of public notice, except when: A) The owner thereof has provided a written waiver consenting to surface coal mining operations closer than three hundred (300) feet; or B) The part of the mining operation which is within three hundred (300) feet of the dwelling is a haul road or access road which connects with an existing public road on the side of the public road opposite the dwelling; 6) Within three hundred (300) feet measured horizontally of any public building, school, church, community or institutional building, or public park; or 7) Within one hundred (100) feet measured horizontally of a cemetery. Cemeteries may be relocated if authorized by applicable State law or regulations. b) There will be no surface coal mining, permitting, licensing or exploration of Federal lands in the National Park System, National Wildlife Refuge System, National System of Trails, National Wilderness Preservation System, Wild and Scenic Rivers System, or National Recreation Areas, unless called for by Acts of Congress. (Source: Amended at 20 Ill. Reg. 1935, effective January 19, 1996) 62 Ill. Adm. Code Sec. 1761.12 PROCEDURES {{ 30 CFR 761.13 }} a) Upon receipt of a complete application for a surface coal mining and reclamation operation permit, the Department shall review the application to determine whether surface coal mining operations are limited or prohibited under Section 1761.11 on the lands which would be disturbed by the proposed operations. b) Federal recreational systems; public buildings; cemeteries 1) Where the proposed operation would be located on any lands listed in Section 1761.11(a), the Department shall reject the application if the applicant has no valid existing rights for the area or if the operation did not exist on August 3, 1977. 2) If the Department is unable to determine whether the proposed operation is located within the boundaries of any of the lands in Section 1761.11(a) or closer than the limits provided in Section 1761.11(a)(6) and (7), the Department shall transmit a copy of the relevant portions of the permit application to the appropriate Federal, State, or local government agency for a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that it must respond within 30 days after receipt of the request. The National Park Service or the U.S. Fish and Wildlife Service shall be notified of any claim of valid existing rights (VER) pertaining to areas within the boundaries of areas under their jurisdiction and shall have 30 days from receipt of the notification in which to respond. The Department, upon request by the appropriate agency, shall grant an extension to the 30-day period of an additional 30 days. If no response is received within 30-day period or within the extended period granted, the Department may make the necessary determination based on the information it has available. c) Where the proposed mining operation is proposed to be conducted within 100 feet measured horizontally of the outside right-of-way line of any public road (except as provided in Section 1761.11(a)(4)(B)) and the applicant does not have VER, or where the applicant proposes to relocate or close any public road, the Department shall: 1) Require the applicant to obtain necessary approvals of the authority with jurisdiction over the public road for relocation or closure of a public road; 2) Provide public notice in a newspaper of general circulation of the affected locale of an opportunity for a public hearing in the locality of the proposed mining operation for the purpose of determining whether the interests of the public and affected landowners will be protected. Any person with an interest which is or may be adversely affected by the proposed mining operation may request in writing that the Department hold a public hearing. Such request shall be submitted to the Department within 14 days after the newspaper notice required by this subsection; 3) If a public hearing is requested, provide appropriate advance notice of the public hearing, to be published in a newspaper of general circulation in the affected locale at least two weeks prior to the hearing; and 4) Make a written finding based upon information received at the public hearing within 30 days after completion of the hearing, or after any public comment period ends if no hearing is held, as to whether the interests of the affected public and landowners will be protected from the proposed mining operations. No mining shall be allowed within 100 feet of the outside right-of-way line of a road unless the Department determines that the interests of the affected public and landowners will be protected. d) Occupied dwellings 1) Absent VER, where the proposed surface coal mining operations would be conducted within 300 feet, measured horizontally, of any occupied dwelling, the permit applicant shall submit with the application a written waiver by lease, deed or other conveyance from the owner of the dwelling, clarifying that the owner and signatory had the legal right to deny mining and knowingly waived that right. The waiver shall act as consent to such operations within a closer distance of the dwelling as specified. 2) Where the applicant for a permit after August 3, 1977, had obtained a valid waiver prior to August 3, 1977, from the owner of an occupied dwelling to mine within 300 feet of such dwelling, a new waiver shall not be required. 3) Effect of waiver A) Where the applicant for a permit after August 3, 1977, had obtained a valid waiver from the owner of an occupied dwelling, that waiver shall remain effective against subsequent purchasers who had actual or constructive knowledge of the existing waiver at the time of purchase. B) A subsequent purchaser shall be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to State laws or if the mining has proceeded to within the 300 feet limit prior to the date of purchase. e) Publicly owned parks; places included in the National Register of Historic Places 1) Where the Department determines that the proposed surface coal mining operation will adversely affect any publicly owned park or any place included in the National Register of Historic Places, the Department shall transmit to the Federal, State, or local agencies with jurisdiction over the publicly owned park or National Register place a copy of applicable parts of the permit application together with a request for that agency's approval or disapproval of the operation, and a notice to that agency that it has 30 days from receipt of the request within which to respond and that failure to interpose a timely objection will constitute approval. The Department, upon request by the appropriate agency, may grant an extension to the 30-day period of an additional 30 days. Failure to interpose an objection within 30 days after the extended period granted shall constitute an approval of the proposed permit. 2) A permit for the operation shall not be issued unless jointly approved by all affected agencies. f) If the Department determines that the proposed surface coal mining operation is not prohibited under Section 7.01 of the State Act and this Part, it may nevertheless, pursuant to appropriate petitions, designate such lands as unsuitable for all or certain types of surface coal mining operations pursuant to 62 Ill. Adm. Code 1762 or 1764. g) A determination by the Department that a person holds or does not hold a valid existing right or that surface coal mining operations did or did not exist on the date of enactment shall be subject to administrative and judicial review under 62 Ill. Adm. Code 1847.3. (Source: Amended at 22 Ill. Reg. 20152, effective November 5, 1998)