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Pennsylvania Regulatory Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 27, 2001 (Volume 66, Number 248)]
[Rules and Regulations]
[Page 67009-67067]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de01-35]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-122-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: OSM is approving, with the exceptions noted below, an
amendment to the Pennsylvania program. Pennsylvania is amending its
Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) and
implementing regulations at 25 Pa. Code Chapter 89 to require
underground mine operators to repair or compensate landowners for
subsidence damage to certain structures and facilities and to restore
or replace water supplies adversely impacted by underground mining
operations.
EFFECTIVE DATE: December 27, 2001.
FOR FURTHER INFORMATION CONTACT: Beverly Brock, Acting Director, Office
of Surface Mining Reclamation and Enforcement, Harrisburg Field Office,
Harrisburg Transportation Center, Third Floor, Suite 3C, 4th and Market
Streets, Harrisburg, Pennsylvania 17101, Telephone: (717) 782-4036.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. Director's Findings
A. Changes to the BMSLCA
B. Changes to the Regulations at 25 Pa. Code Chapter 89
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Effect of Director's Decision
VII. Procedural Determinations
I. Background on the Pennsylvania Program
Section 503(a) of the Surface Mining Control and Reclamation Act
(SMCRA or the Act) permits a State to assume primacy for the regulation
of surface coal mining and reclamation operations on non-Federal and
non-Indian lands within its borders by demonstrating that its State
program includes, among other things, ``* * * a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act; and rules
and regulations consistent with regulations issued by the Secretary
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis
of these criteria, the Secretary of the Interior conditionally approved
the Pennsylvania program on July 30, 1982. You can find background
information on the Pennsylvania program, including the Secretary's
findings, the disposition of comments, and the conditions of the
approval in the July 30, 1982, Federal Register (47 FR 33050). You can
find subsequent actions concerning the Pennsylvania program and
previous amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.
II. Submission of the Amendment
By letter dated July 29, 1998 (Administrative Record Number PA
841.07), the Pennsylvania Department of Environmental Protection
(PADEP) submitted an amendment to its approved permanent regulatory
program pursuant to the federal regulations at 30 CFR 732.17(b).
We announced the proposed rulemaking in the August 25, 1998,
Federal Register (63 FR 45199). The rule described Pennsylvania's
proposal to modify the BMSLCA through Act 54 and also described
Pennsylvania's proposal to make changes to its regulations at 25 Pa.
Code Chapter 89, titled ``Underground Mining of Coal and Coal
Preparation Facilities.'' The first public comment period closed on
September 24, 1998. In response to requests from three people, the
comment period was reopened on September 25, 1998, (63 FR 51324). This
second comment period closed on October 19, 1998. A public hearing was
held on October 13, 1998, at Washington, Pennsylvania (Administrative
record numbers PA 841.21, 841.22, and 841.31).
After reviewing the written comments we received, the information
received at the public hearing and conducting our own review of the
amendment, we sent two letters to Pennsylvania requesting clarification
of numerous issues. The letters were sent on June 21, 1999,
(Administrative record number PA 841.32) and June 23, 2000,
(Administrative record number PA 841.40). Pennsylvania responded to the
first letter on June 1, 2000, (Administrative record number PA 841.39)
and to the second on July 14, 2000 (Administrative record number PA
841.41). The substance of the issues and Pennsylvania's responses are
discussed below.
We reopened the public comment period on December 8, 2000, (65 FR
76954) to seek comment on Pennsylvania's response to our two letters.
Two commenters responded to this reopening. Their comments and our
response are found in the response to comments section.
III. Director's Findings
Note: Throughout this final rule, unless otherwise indicated,
``Director'' refers to the Director of OSM.
We have noted throughout this final rule that we are not approving
or are requiring amendments to some of Pennsylvania's statute and
regulations regarding repair or compensation for structural damage and
restoration or replacement of water supplies. We wish to make it clear
that any of the sections not approved or required to be amended only
apply to structures and water supplies that are protected under EPAct
and do not apply to structures or water supplies that are not protected
by EPAct.
A. Changes to the BMSLCA
Set forth in the explanation below and the table that follows,
pursuant to SMCRA and the federal regulations at 30 CFR 732.15 and
732.17 are the Director's findings concerning the proposed amendments
to the BMSLCA. The Director's reasons for approving, conditionally
approving, requiring amendments to, or not approving sections of, the
BMSLCA are noted. The sections are listed in the order they appear in
the BMSLCA for easy reference.
Section 4 (52 P.S. 1406.4). This section was repealed by Act 54.
Prior to repeal, the section provided protection from subsidence from
bituminous coal mining to certain structures in place as of April 27,
1966. The Director is approving the repeal of this section because it
had afforded a level of protection to structures beyond that contained
in the federal regulations. The repeal of section 4 means that the
BMSLCA affords the same level of protection to structures regardless of
when constructed, which is consistent with the federal regulations.
Thus, the repeal of this section does not render the Pennsylvania
program less effective than the federal program.
Section 5(b) (52 P.S. 1406.5(b)). The full text of section 5(b)
prior to modification by Act 54 read, ``The department shall require
the applicant to file a bond or other security as recited in section
6(b) to insure the applicant's faithful performance of mining or mining
operations in accordance with the provisions of section 4.'' The
section was modified by Act 54 to change the reference from section
6(b) to 6(a) and to delete the phrase ``in accordance with the
provisions of section 4.''
[[Page 67011]]
The Director is approving the deletion of the phrase ``in
accordance with the provisions of section 4'' because it was made in
response to the deletion of section 4, which was approved for the
reasons given above. However, the reference to section 6(a) is
incorrect because section 6(a) was deleted. The correct reference
should have remained section 6(b). The Director is requiring
Pennsylvania to correct the reference to the bonding requirements.
Section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)). This section requires
that a water supply adversely impacted by an underground mine be
replaced ``with a permanent alternate source which adequately serves
the premining uses of the water supply or any reasonably foreseeable
uses of the water supply.'' The implementing regulations at 25 Pa. Code
89.145a(b) include identical language.
Pennsylvania's implementing regulations at 25 Pa. Code
89.145a(f)(3) also specify that--
A restored or replaced water supply will be deemed adequate in
quantity if it meets one of the following:
(i) It delivers the amount of water necessary to satisfy the water
user's needs and the demands of any reasonably foreseeable uses.
(ii) It is established through a connection to a public water
supply system which is capable of delivering the amount of water
necessary to satisfy the water user's needs and any reasonably
foreseeable uses.
(iii) For purposes of this paragraph and with respect to
agricultural water supplies, the term reasonably foreseeable uses
includes the reasonable expansion of use where the water supply
available prior to mining exceeded the farmer's actual use.
The Director is approving paragraph (iii) because it provides for
protection for agricultural uses that are not protected under the
federal regulations and is in accordance with 505(b) of SMCRA.
By letter dated June 21, 1999, we originally expressed concern with
25 Pa. Code 89.145a(f)(3)(i), stating that:
Pennsylvania's proposed statute [and rule]
appears to be less
effective than the federal rules because it allows evaluation of the
adequacy of a replacement water supply quantity to be based on use
rather than the premining quantity. Through this statute [and rule],
Pennsylvania would allow restoration to a level that is adequate for
premining use, but this could be significantly less than the
premining quantity and quality of the supply.
Pennsylvania responded by letter dated June 1, 2000:
OSM believes that a replacement water supply must have a yield
equal to or greater than the yield of the premining water supply in
order to be considered adequate. This position allows no
consideration for the quantity of water actually used by the
landowner or water user.
In addition, it is important to recognize that Pennsylvania's
law requires an accounting of foreseeable uses when determining the
adequacy of replacement water supplies. If the water user's
premining needs were only 4 gpm but the user had plans that would
utilize the full 10 gpm capacity of the well, the replacement supply
would have to produce the 10 gpm under the Pennsylvania program.
After reconsidering the preamble to the definition of ``replacement
of water supply'' at 30 CFR 701.5 and our comments and Pennsylvania's
responses on the proposed Pennsylvania program, we recognize that the
definition of ``replacement water supply'' does not specify how
equivalency is to be determined and that there may be alternate
approaches to determining whether a water supply has been appropriately
replaced. As discussed more fully below, we considered whether actual
and reasonably foreseeable use, including potential uses, would be a
means of determining equivalency. We then reviewed the degree to which
Pennsylvania's ``adequate quantity'' standard under 25 Pa. Code
89.145a(f)(3)(i) and (ii) would meet actual and reasonably foreseeable
use. Finally, we examined the degree to which the Pennsylvania standard
would ensure that the replacement water source would be equivalent to
the premining source, and the replacement delivery system would be
equivalent to the premining delivery system.
Use as a Standard: The preamble to the definition of ``replacement
of water supply'' at 30 CFR 701.5 contains various analyses as to the
scope of the replacement requirement. The following discussion
foreclosed basing replacement supply quantity on just the actual
premining use:
Commenters argue that the definition should state that the
replacement water supply need only provide the quantity and quality
required for actual use. * * * OSM maintains that the provision of
water quality and quantity equivalent to that of premining supplies
is plainly required by the term ``replacement'' [in EPAct].
60 FR 16726.
Additional guidance is found in the preamble at 60 FR 16727, which
specifies that ``[w]here the spring or well also serves other purposes,
the quantity of the replacement supply only needs to be equivalent to
the premining water supply for drinking, domestic, or residential
use.'' Thus, absolute equality to the premining quantity was not deemed
to be required in all instances.
We then find a discussion on the requirement that replacement of
the water supply must account for uses by future owners. When we were
discussing the option of not replacing the water delivery system, we
said that an equivalent water source must be available for development
``so that the current owner or his or her successor could utilize the
water if desired in the future.'' 60 FR 16727 (emphasis added).
Finally, to harmonize these statements, we look to yet another
preamble statement, which appears to endorse consideration of the level
of both actual and reasonably foreseeable use as a means of determining
equivalency. In discussing the portion of the definition that provides
an option under which the permittee would not need to replace the water
supply delivery system, the preamble states: ``This provision
[identification of a suitable alternative water source]
would ensure
that all coal mining operations must be conducted so that water
resources remain to support the existing and proposed use of the
land.'' 60 FR 16727. In the context of the definition, ``proposed use''
refers to the approved postmining land use. Although the postmining
land use requirements of 30 CFR 817.133 generally do not apply to areas
overlying underground workings, since those areas usually do not lie
within the permit area, the Pennsylvania term ``any reasonably
foreseeable uses'' is the functional equivalent of the term postmining
land use for lands outside the permit area. Although this statement was
not specifically addressed at the issue of interpreting equivalency, it
does indicate contemplation and acceptance of the standard proposed by
Pennsylvania.
Since the definition of ``replacement of water supply'' at 30 CFR
701.5 does not specify how equivalency is to be determined, OSM finds
that it can approve a water supply replacement provision that relies on
actual and reasonably foreseeable use as a standard as no less
effective than the federal rules with respect to water quantity.
The Pennsylvania ``Adequate Quantity'' Standard: The Pennsylvania
statute at section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)), requires that a
water supply adversely impacted by an underground mine be replaced
``with a permanent alternate source that adequately serves the
premining uses of the water supply or any reasonably foreseeable uses
of the water supply.'' The implementing regulations at 25 Pa. Code
89.145a(b) include identical language. As noted above, Pennsylvania's
regulations further define a restored or replaced supply as adequate in
quantity if (i) it delivers the
[[Page 67012]]
amount of water to satisfy the water user's needs and the demands of
any reasonably foreseeable uses or (ii) is a public water supply system
that delivers the amount of water to satisfy the water user's needs and
the demands of any reasonably foreseeable uses. 25 Pa. Code
89.145a(f)(3)(i) and (ii). Pennsylvania limits ``public water supply
systems'' to those defined at 25 Pa. Code 89.5.
Responding to OSM concerns on 25 Pa. Code 89.145a(f)(3)(i),
Pennsylvania commented that the replacement water supply ``must be
capable of satisfying the premining uses * * * and, in addition, any
foreseeable uses the landowner or water user had intended to develop.''
With regard to public water supplies as a possible replacement,
Pennsylvania stated that ``[a]
connection to a public water supply
system is a reasonable means of replacement if the public water supply
system can satisfy the water user's existing and reasonably foreseeable
needs and is adequate for the purposes served.'' 28 Pennsylvania
Bulletin (Pa.B.) 2777.
To the extent that Pennsylvania's letter and the Pennsylvania
Bulletin language could be read to indicate that the user must have
plans to demonstrate reasonably foreseeable uses of a water supply or
is limited to the current user, we disagree with these interpretations.
The proper standard is whether there is a reasonably foreseeable use
for the premining capacity, not whether actual plans exist or the uses
are limited to the current owner. Actual plans or the current owner's
uses (existing and foreseeable) are merely two ways to determine
foreseeable uses. As previously stated, the replaced water supply must
take into account not only the actual use but also any potential uses
by a future owner. As a consequence, OSM is approving the language
under section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)), and 25 Pa. Code
sections 89.145a(b), and 89.145a(f)(3)(i) and (ii), to the extent that
Pennsylvania both interprets and implements the provisions consistent
with the definition of ``replacement of water supply'' at 30 CFR 701.5
where an equivalent replacement would be achieved by meeting the
premining uses and any reasonably foreseeable uses of the supply.
Therefore, OSM is requiring Pennsylvania to amend 89.145a(b) and
89.145a(f)(i) and (ii), if necessary, to ensure that the phrase
``satisfy the water user's needs and the demands of any reasonably
foreseeable uses' is consistent with our discussion concerning the
actual use and the reasonably foreseeable use of the supply.
Equivalent Replacement Source and Delivery System: The definition
of ``replacement of water supply'' at 30 CFR 701.5 and the
corresponding preamble make it clear that ``replacement includes
provision of an equivalent delivery system.'' 60 FR at 16726. As
previously noted, the preamble discussion related to waiving the
replacement of delivery systems not needed for the postmining land use
require that the permittee must demonstrate the availability of a water
source equivalent to premining quality and quantity. 60 FR at 16727. As
a consequence, a replacement supply must be equivalent to the premining
supply both in terms of a delivery system and in terms of water
quantity of the source.
Pennsylvania's proposed requirements do not specifically address
EPAct requirements that a replacement supply must include the provision
of an equivalent water delivery system and an equivalent water source
in terms of quantity. Under 25 Pa. Code sections 89.145a(f)(1) and
89.145a(f)(4), Pennsylvania required that the replacement supply
include a delivery system and proposed criteria for determining the
adequacy of permanently restored supplies. While the proposed standards
would address supply permanence, reliability, maintenance, and owner
control and accessibility, we are concerned that those criteria, alone,
could still require supply owners to accept water supply delivery
systems that are not equivalent to the premining system to compensate
for a replacement source that is not equivalent to the quantity of the
premining source. A water delivery system equal to the premining system
is crucial to protecting the supply owner from the practice of
installing an unconventional delivery system to make up for a source
that does not provide an equivalent quantity of water. Examples of such
systems would be the placement of in-ground storage tanks to offset
well or spring yields that, alone, do not provide an equivalent
quantity of water, and the development of an elaborate delivery system
from multiple low yield wells.
In conclusion, the Director is approving section 5.1(a)(1) (52 P.S.
1406.5a(a)(1)), which requires that a water supply adversely impacted
by an underground mine be replaced ``with a permanent alternate source
which adequately serves the premining uses of the water supply or any
reasonably foreseeable uses of the water supply,'' to the extent that
Pennsylvania both interprets and implements the provisions at section
5.1(a)(1) (52 P.S. 1406.5a(a)(1)), 25 Pa. Code 89.145a(b), and 25 Pa.
Code 89.145a(f) consistent with the definition of ``replacement of
water supply'' at 30 CFR 701.5 where an equivalent replacement would be
achieved by meeting the premining uses and any reasonably foreseeable
uses of the supply. Under the Pennsylvania program, an equivalent
delivery system or source would be those that adequately serve the
premining uses of the water supply or any reasonably foreseeable uses
of the water supply. As previously noted above, OSM is requiring
Pennsylvania to amend 25 Pa. Code sections 89.145a(b) and
89.145a(f)(3)(i) and (ii), if necessary, to ensure that the phrase
``satisfy the water user's needs and the demands of any reasonably
foreseeable uses' is consistent with our discussion concerning the
actual use and the reasonably foreseeable use of the supply. Finally,
OSM will evaluate implementation of the requirements through the
oversight process to determine if the processes used by Pennsylvania to
determine current owner's needs and demands of any reasonably
foreseeable use are consistent with the definition of ``replacement of
water supply'' at 30 CFR 701.5.
With respect to replacement timing, section 5.1(a)(1) (52 P.S.
1406.5a(a)(1)) requires restoration of water supplies but does not
place an obligation on the permittee to do so promptly. In addition,
section 5.2 (52 P.S. 1406.5b) and Pennsylvania regulation 25 Pa. Code
89.146a, as proposed, serve to condition replacement timing based upon
supply type, location and property owner notice to the permittee.
Section 720(a)(2) requires the prompt replacement of protected water
supplies. The federal rules require prompt replacement of a water
supply on ``both a temporary and permanent basis equivalent to
premining quantity and quality.'' (30 CFR Secs. 701.5 and 817.41(j)).
To ensure that all supplies are guaranteed prompt replacement
consistent with EPAct, the Director is requiring Pennsylvania to amend
this section to require the prompt replacement on both a temporary and
permanent basis of all protected water supplies. In requiring the
amended language under this section, the Director expects that
enforcement actions requiring prompt replacement will at a minimum be
handled in conformance with chapter 86, subchapter H (Enforcement &
Inspection), which requires citation and abatement of violations within
a reasonable time.
Section 5.1(a)(2) (52 P.S. 1406.5a(a)(2)). This section and the
[[Page 67013]]
implementing regulations at 25 Pa. Code 89.145a(f)(2) that include
identical language, provides that a restored or replaced water supply
will be deemed adequate when it differs in quality from the premining
water supply, if it meets the Pennsylvania Safe Drinking Water Act
(PSDWA) (35 Pa. Stat. Sections 750.1-750.20), or is comparable to the
premining water supply when that water supply did not meet these
standards.
By letter dated June 21, 1999, we originally notified Pennsylvania
that its statute and regulations were less effective than the federal
definition of ``replacement of water supply'' in 30 CFR 701.5. That
definition requires that a replacement supply be ``equivalent to
premining quantity and quality.''
We have reconsidered the position enunciated in our June 21, 1999,
letter after reviewing a letter dated March 9, 1999, from then--OSM
Director Kathy Karpan to Greg Conrad of the Interstate Mining Compact
Commission (IMCC). In that letter, Director Karpan provided guidance
for the development and evaluation of State program amendments
implementing EPAct.
Our definition of ``replacement of water supply'' in 30 CFR 701.5
requires that the replacement supply be equivalent in quantity and
quality to the premining supply. The federal rules do not define what
``equivalent'' means with respect to water quality. However, the March
letter to the IMCC stated that, with respect to quality, we would
consider the equivalency requirement to be met if the replacement water
supply was of a ``quality suitable for all current and reasonably
foreseeable uses.'' The letter also notes that our regulations do not
require replacement of the source of the premining water supply. Thus,
the letter implies that ``equivalent'' does not translate to
``identical.'' Instead, it allows some differences in chemical
composition, as long as the replacement supply remains suitable for the
uses associated with the premining water supply and any reasonably
foreseeable uses.
The preamble to our regulations clearly supports this approach by
stating that our regulations do not require restoration of the source
of the premining water supply. Instead, according to the preamble,
replacement of the water supply may be accomplished through provision
of an alternate source such as a public water supply or by pipeline
from another location. See 60 FR 16727 and 16733. Since these
alternative sources most likely would not be precisely identical to the
premining source in terms of water chemistry, the inference is that
differences in chemical composition are acceptable as long as the
premining and replacement supplies are equivalent in terms of
suitability for use.
The Pennsylvania regulations at 25 Pa. Code 89.145a(b), when read
in combination with 25 Pa. Code 89.145a(f)(2), require that replacement
supplies meet the standards of the PSDWA whenever the quality of the
replacement supply differs from that of the premining supply. The only
exception occurs when the premining supply does not meet PSDWA
standards, in which case the replacement supply must be at least
``comparable to the premining water supply.'' The rules do not specify
how comparability will be determined, but 25 Pa. Code 89.145a(a)(1)
requires that operators conduct premining water supply surveys prior to
mining within 1000 feet of the water supplies. Paragraphs (ii) and
(iii) of 25 Pa. Code 89.145a(a)(1), require that the surveys assess the
existing and reasonably foreseeable uses of the water supply and the
chemical and physical characteristics of the water, including total
dissolved solids (or specific conductance), pH, total iron, total
manganese, hardness, sulfates, total coliform, acidity, and alkalinity.
The Director finds that Pennsylvania's provisions are no less
effective than the federal requirements concerning the quality of
replacement water supplies. We are approving Pennsylvania's rules in
this regard because we interpret our regulations as meaning that, with
respect to water quality, an equivalency determination can be made in
terms of suitability for particular uses, rather than requiring that
the chemical composition of the replacement supply be identical to that
of the premining supply. Pennsylvania's public drinking water systems
must meet the requirements of the PSDWA. As Pennsylvania noted in a
letter dated June 1, 2000, these requirements are intended to ensure
that water delivered by these systems is not only safe, but also
palatable and esthetically acceptable. The PSDWA includes maximum
contaminant levels for iron, manganese, and sulfates, three parameters
that are of major significance in the coalfields.
Of the three types of water supplies protected under EPAct
(drinking, domestic, and residential), drinking water requires the
highest standards. Since Pennsylvania's regulations require that water
supplies that meet PSDWA standards be replaced with supplies of at
least that quality, they satisfy the quality aspect of the federal
water supply replacement requirements.
Where premining water supplies do not meet PSDWA standards,
Pennsylvania's regulation is also no less effective than the federal
definition of ``replacement of water supply'' in 30 CFR 701.5 with
respect to water quality because the state rule requires replacement
with supplies of comparable quality. ``Comparable'' is a synonym for
``equivalent,'' which is the standard in the Federal rule.
Section 5.1(a)(3) (52 P.S. 1406.5a(a)(3)). This section deals with
the definition of ``water supply.'' Pennsylvania's definition includes
any existing source of water used for domestic, commercial, industrial
or recreational purposes or for agricultural purposes or which serves
any public building or any noncommercial structure customarily used by
the public. Pennsylvania's statutory definition is substantively
identical to its regulatory definition found at 25 Pa. Code 89.5. The
federal definition of ``drinking, domestic or residential water
supply'' at 30 CFR 701.5 includes water received from a well or spring
used for ``direct human consumption or household use.'' Clearly,
Pennsylvania's definition is not identical to the federal definition.
Nonetheless, Pennsylvania's definition includes any existing source
used for domestic water, which Pennsylvania has stated would ``include
all water supplies covered under the Federal program.'' 28 Pa.B. 2767.
Even though Pennsylvania's definition covers the same water
sources, we expressed a concern with the Pennsylvania definition
because of preamble language in the Pennsylvania Bulletin that stated
that the ``Board does not wish to include language which could be
interpreted to include investor-owned water transmission and
distribution mains which are rightfully classified as utilities. The
Board notes that this definition does not limit in any way the duty of
an operator to provide pumping equipment and connecting piping * * *''
(28 Pa.B. 2767). Since the federal definition of ``drinking, domestic
or residential water supply'' includes ``any appurtenant delivery
system,'' we asked Pennsylvania to clarify what is meant by
``connecting piping'' and ``investor-owned water transmission and
distribution mains which are rightfully classified as utilities' in our
letter dated June 21, 1999. We were concerned about how the Board's
intention not to protect investor-owned water transmission and
distribution mains, which are rightfully classified as utilities, would
affect the replacement of appurtenant delivery systems protected under
EPAct.
[[Page 67014]]
PADEP replied that the preamble discussion was made to illustrate
the difference between connections from a well or spring to a residence
and connections made to a water main that is part of a public water
supply system. Connections from a well or spring are permanent affixed
appurtenant structures that must be repaired by the mine operator if
damaged. PADEP further noted that damage to a water main and that part
of the connecting piping that is owned by the water company would be
covered under its regulation at 25 Pa. Code 89.142a(g) relating to
protection of utilities. In this case, the damage is likely to be
repaired by the water company pursuant to an agreement with the mine
operator. PADEP concluded that if the property owner owns the
connecting piping, it would be regarded as a permanently affixed
appurtenant structure, which the mine operator would be required to
repair.
Based on the preamble language of the Pennsylvania Bulletin and its
explanation addressed to our concerns, we find Pennsylvania's
definition of water supply no less effective than the federal
regulation. The Director is approving this section.
Section 5.1(b) (52 P.S. 1406.5a(b)). This section indicates an
operator is not liable for restoration or replacement of a water supply
if a landowner's claim of contamination, diminution or interruption is
made more than two years after the supply was affected. In our letter
to Pennsylvania dated June 23, 2000, we noted that EPAct provides that
an operator is responsible for restoration or replacement of all water
supplies used for domestic, drinking or residential use. We noted that
the proposed changes to the Pennsylvania program are not as effective
as the corresponding federal regulations because some water supplies
that would be protected under EPAct may be excluded from protection
simply because a user does not file a claim within two years. The
federal regulations require a permittee to meet all applicable
performance standards during the permit term, including the replacement
of water.
In its letter to us dated July 14, 2000, Pennsylvania noted that
the two-year time limit for reporting water supply impacts is
explicitly stated in BMSLCA. Pennsylvania has observed no cases to date
where this limitation has been used as a basis for denying water supply
restoration or replacement. Additionally, Pennsylvania noted that since
federal SMCRA has no statute of limitations, OSM cannot conclude
Pennsylvania's provisions are less effective than the federal
regulations. Pennsylvania asserts that when a federal statute contains
no limitation provisions, the most appropriate statute of limitations
provided by state law should be applied unless there is a relevant
federal statute of limitations or the state law would frustrate or
interfere with the implementation of national policies. Pennsylvania
cited a court case (Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517,
1521 (9th Cir. 1987)) that it believes to be relevant to its position.
Pennsylvania further states that since it notifies property owners
above underground mines of their rights and the mine operator's
obligations should underground mining adversely affect their water
supplies, that people are unlikely to make do without water for two
years without making a claim. Pennsylvania believes that this approach
serves to ensure that water supply claims will be filed before the
statute of limitations expires, which will effectively implement the
national policy of requiring underground mine operators to address
these impacts.
Finally, Pennsylvania noted that this section of BMSLCA is not
contrary to 30 CFR 700.11(d) because that section of the federal
regulations is purely discretionary and not required to be part of a
state program. Section 700.11(d) authorizes, but does not require,
regulatory authorities to terminate jurisdiction over the reclaimed
site of a completed surface coal mining and reclamation operation.
Federal law defines the term ``surface coal mining and reclamation
operations'' as surface coal mining operations and all activities
necessary or incidental to the reclamation of surface coal mining
operations. The term ``surface coal mining operations'' is interpreted
by OSM to not include subsidence, etc. resulting from underground coal
mining. Consequently, water supplies affected by underground mining as
well as restoration or replacement of such water supplies are not
activities subject to 700.11(d).
The Director is not approving this portion of the BMSLCA for
several reasons. First, even though there have been no cases reported
to date where this provision has been used to deny restoration or
replacement of affected supplies, it does not mean that it will not
happen. If this provision were ever used to deny coverage that would
otherwise have been provided under federal regulations, it would be
less effective than the federal requirements.
Second, we disagree that the Ninth Circuit case cited by
Pennsylvania is applicable. The proposition held by the court of
appeals and cited by Pennsylvania states that when a federal statute
contains no limitations provisions, an applicable state statute of
limitations should be applied, unless there is an analogous federal
statute of limitations, or the state law would frustrate or interfere
with national policies. The Ninth Circuit case is the general rule
applicable to litigation involving private parties. However, this
general rule and its exceptions do not control government actions
brought to vindicate public interests. See, Dole v. Local 427,
International Union of Electrical, Radio and Machine Workers, 894 F.2d
607 (3d Cir. 1990). The general rule that applies to government actions
is that ``no statute of limitations will be applied in civil actions
brought by the Government, unless Congress explicitly imposes such time
limitations.'' Dole, 894 F.2d at 610. The court of appeals in Dole held
that no statute of limitations applies to the government so long as a
public purpose is served by its action. While section 5.1(b) (52 P.S.
1406.5a(b)) of BMSLCA will benefit a private individual, this is no
different than the situation in Dole, where the Department of Labor
sued to enforce individual and public rights. The fact that a public
suit may benefit a private individual does not change the application
of the general rule for government actions. Under the provisions of the
BMSCLA, it will be Pennsylvania that will enforce the requirement that
the operator replace an affected water supply. The requirement to
replace a water supply not only serves a private purpose, it also
serves a public purpose as well. The replacement requirement not only
protects the current owner but also his or her successor and the
community by preserving property values. 60 FR at 16727.
Further, a time limit on water claims is adverse to the general
scheme of SMCRA. For example, this section would limit Pennsylvania's
ability to take enforcement actions and would interfere with the
administrative methods established by sections 517 and 521 of SMCRA
since it could be difficult to determine when the supply was initially
affected. Since every state could have a different time period, this
section is contrary to the public policy of section 102(a) of SMCRA
that established a nationwide program and with section 101(g) of SMCRA.
It could also preclude some citizen suits because in some situations a
citizen wouldn't know that Pennsylvania wasn't taking action until the
two years elapsed. Additionally, if a claim for water damage were not
made within two years from the date the supply was affected,
[[Page 67015]]
Pennsylvania would not consider it a violation. Since it is not a
violation, this would prevent Pennsylvania from holding operators
responsible for damage to a water supply.
We disagree with Pennsylvania that this time limitation is no less
effective than the federal rules. It is contrary to section 505(b) of
SMCRA, which prohibits any state program from having state laws or
regulations that are inconsistent with SMCRA. The statute of
limitations would seem to insure that at some point a water supply
would not be restored or replaced. Failure to restore or replace a
water supply is in direct contrast with the purposes of EPAct and the
federal regulations that require, without a time limit, the restoration
or replacement of these supplies. Finally, since our decision is based
on the above, we feel it is unnecessary to address Pennsylvania's
interpretation of the federal regulations describing termination of
jurisdiction. As a result, the Director is not approving section 5.1(b)
(52 P.S. 1406.5a(b)) of the BMSLCA.
Section 5.2(a)(1) (52 P.S. 1406.5b(a)(1). This section requires a
landowner to contact the operator with a claim of water loss or
contamination. The section also requires the operator to investigate
such claims with reasonable diligence. In our letter to Pennsylvania of
June 21, 1999, we noted that this section appeared to be less effective
than the federal regulations because the federal rules and statute do
not require the landowner or water user to first contact the operator.
We asked Pennsylvania to explain how this requirement affects a
landowner's or water user's rights or PADEP's responsibilities to
initiate action under citizen complaint procedures.
In its response of June 1, 2000, PADEP indicated that requiring the
landowner to contact the operator has not been a problem during the
first five years of the program's implementation. Pennsylvania believes
that requiring the landowner to contact the operator saves time by
allowing the owners to describe their problem to the operator and to
schedule access to their property for the operator.
The proposal by Pennsylvania to require landowners to notify
operators with a claim of water loss was carefully considered by the
Director relative to the requirements for water supply replacement (30
CFR 817.41(j)) and the requirements for addressing complaints by
citizens (30 CFR part 842). It is important to note that under both the
federal and the proposed Pennsylvania requirements, underground mining
that results in the contamination, diminution, or interruption of a
water supply is not prohibited. Once a water supply is affected, the
federal requirements require prompt replacement while Pennsylvania's
proposed requirements allow operators to delay permanent replacement
for up to at least three years. Specifically at issue under section
5.2(a)(1) (52 P.S. 1406.5b(a)(1)) of the Pennsylvania statute is
whether the requirement for landowners to notify operators with a claim
of water loss is no less effective than federal requirements.
EPAct and 30 CFR 817.41(j) are silent on how the operator is
notified of the water loss. Under section 720 of SMCRA, permittees are
responsible for prompt replacement regardless of whether they are
contacted by property owners or by the regulatory authority in cases
where the property owner failed to do so. Under section 5.2(a)(1) (52
P.S. 1406.5b(a)(1)) of the BMSLCA, Pennsylvania has elected to
establish a water loss notification procedure that requires the
property owner to contact the operator. The section also requires that
the operator shall, with reasonable diligence, investigate the loss.
The proposed changes to the Pennsylvania program are silent on any
procedures that will be followed in the event that landowners choose to
notify the Department rather than the operator. However, under section
5.2(b)(2) (52 P.S. 1406.5b(b)(2)) and 25 Pa. Code 89.146a(b),
Pennsylvania conditioned its ability to require temporary water within
24 hours of issuance of an order to those cases where the landowner
falls within the rebuttable presumption area and notified the operator.
The Director finds section 5.2(a)(1) (52 P.S. 1406.5b(a)(1)) of the
BMSLCA is not inconsistent with the requirements of SMCRA and the
federal regulations and is approving it. The approval is granted
because even though section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) and 25
Pa. Code 89.146a(b) act to limit property owner access to the 24-hour
temporary supply standard under section 5.2(a)(2) (52 P.S.
1406.5b(a)(2)), the Director's required amendment of section 5.1(a)(1)
(52 P.S. 1406.5a(a)(1)) of the BMSLCA will insure the prompt
replacement of all adversely affected water supplies (see required
amendment discussion under section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)).
As a consequence, property owners that do not directly notify the
operator may not receive a temporary supply within 24 hours pursuant to
section 5.2(a)(2) (52 P.S. 1406.5b(a)(2)). However, they will be
guaranteed a prompt replacement consistent with EPAct because of the
amendment required by the Director at section 5.1(a)(1) (52 P.S.
1406.5a(a)(1)).
Section 5.2(a)(2) (52 P.S. 1406.5b(a)(2)). This section requires
operators to provide a temporary water supply to landowners with water
supply problems within the rebuttable presumption area within 24 hours.
However, this section does not address temporary water supply
requirements for those landowners whose water supplies are outside the
presumption area. The federal rules require all protected water
supplies to be promptly replaced on both a temporary and permanent
basis, regardless of location.
Pennsylvania's response to OSM's issue letter of June 21, 1999,
stated (see finding for 25 Pa. Code 89.145a(e)(1)) that section 5.2 of
the BMSLCA provided for temporary water replacement if the affected
water supply is outside the rebuttable presumption area. Pursuant to
5.2, the operator's responsibility does not begin until after the PADEP
issues an order. This is contrary to SMCRA and the federal regulations
that indicate there is an obligation on the permittee to replace water
on a temporary and permanent basis before there is enforcement by the
regulatory authority (see 720(a)(2) of SMCRA and 30 CFR 817.41(j)). As
a condition of a permit, a permittee must comply with all the
conditions of the permit, all applicable performance standards and the
requirements of the regulatory program (see 30 CFR 773.17(c)). The
requirement to promptly replace protected water supplies is a
performance standard. Once the operator is notified of the water
problem (in Pennsylvania, by the landowner or the water user), the
operator is obligated to replace the water. This occurs before there is
enforcement by the regulatory authority. Enforcement by the regulatory
authority commences when there is a violation of the statute,
regulations, and/or applicable program. Accordingly, the Director is
approving section 5.2(a)(2) (52 P.S. 1406.5b(a)(2)) for those water
supplies within the rebuttable presumption area that qualify for the
24-hour temporary supply replacement standard because this portion of
the statute is consistent with the federal regulations at 30 CFR 701.5
and 817.41(j) that require prompt replacement of water supplies and
with 30 CFR 773.17(c). However, because there is no requirement in
BMSLCA to provide temporary water in a prompt manner for those water
supplies that lie outside the rebuttable presumption area, or otherwise
fail to qualify for the 24-hour temporary supply replacement standard,
the Director is requiring Pennsylvania to amend section 5.1(a)(1)
[[Page 67016]]
(52 P.S. 1406.5a(a)(1)) requiring the prompt replacement of water
supplies, including temporary water, to all landowners whose water
supply has been impacted by underground mining.
Section 5.2(a)(3) (52 P.S. 1406.5b(a)(3)). This section provides
that if a temporary water supply is not provided within 24 hours,
PADEP, after notice by the landowner or water user, shall order the
operator to provide temporary water within 24 hours. The operator shall
notify the Department of any claim of contamination, diminution or
interruption made to it by a landowner or water user and its
disposition. This section only applies to those supplies falling within
the rebuttable presumption zone as required by section 5.2(c) (52 P.S.
1406.5b(c)).
The Director is approving this section because it provides the
Department with specific authority to issue orders to require temporary
water within 24 hours for those supplies that meet the requirements of
section 5.2(c) (52 P.S. 1406.5b(c)), and where the operator has refused
to provide the supply. This is consistent with both 30 CFR 817.41(j),
which requires prompt replacement of water supplies, and the
enforcement procedures of Part 843. Once an operator refuses to replace
a protected water supply, a violation has occurred and the regulatory
authority can then enforce this replacement requirement with an order.
For those supplies that meet section 5.2(c) (52 P.S. 1406.5b(c)), this
enforcement authority will assist the Department in securing prompt
replacement. It should be noted that the Director is requiring
Pennsylvania to amend section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) to
require prompt replacement of all supplies covered by EPAct. In
requiring the amended language under section 5.1(a)(1) (52 P.S.
1406.5a(a)(1)), the Director expects that those supplies that do not
meet the conditions of section 5.2(a)(2) and (a)(3) (52 P.S.
1406.5b(a)(2) and (3)) will be addressed by the Department consistent
with chapter 86, subchapter H (Enforcement & Inspection), which
requires citation, and abatement, of violations within a reasonable
time.
Section 5.2(b)(1) (52 P.S. 1406.5b(b)(1)). This section provides
that a landowner may notify the Department if an alternate source has
not been provided or if an operator ceases to provide an alternate
source and requests an investigation be conducted. While there is no
direct federal counterpart to this section, the Director is approving
it because it is not inconsistent with the citizen complaint procedures
in the approved Pennsylvania program (see 49 FR 10253-58) or 30 CFR
842.12, which allow citizens to bring their complaints to the
regulatory authority.
Section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)). This section provides
that within 10 days of notification the Department will investigate
claims and within 45 days make a determination if the operator affected
the water supply. The Department can then issue orders for replacement.
This section also allows three years to pass before orders requiring a
permanent water supply are issued. In our letter to Pennsylvania dated
June 21, 1999, we indicated that this section appeared to be less
effective than the federal rules because it does not require that water
supplies be promptly replaced and that it would allow three years to
elapse before the Department issues an order to provide a permanent
alternate source of water. We further noted that three years is
inconsistent with federal SMCRA 720(a)(2) requiring prompt replacement
of drinking, domestic or residential water supplies.
In their letter to us dated June 1, 2000, Pennsylvania indicated
that the time periods of 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) relate to
PADEP actions. Pennsylvania noted that this section only pertains to
situations where mine operators are apparently failing to fulfill their
obligations. In these cases, PADEP may be required to establish proof
of causation and operator liability before taking appropriate action.
Pennsylvania believes this section of BMSLCA is more stringent because
it requires the regulatory authority to act within specified time
periods while the federal regulations set no deadlines for follow up
action by the regulatory authority. With regard to the three-year
issue, Pennsylvania responded that the three-year period is consistent
with scientific literature that indicates if a water supply is going to
recover it will usually do so within three years of impact. Finally,
Pennsylvania noted that, in some cases, an attempt at permanent
restoration in a shorter time may not be prudent because of the
potential impacts of additional mining that will take place in the
future.
As we stated in the preamble to the federal EPAct rules, ``existing
citizen complaint procedures are adequate and appropriate to address
surface owner complaints of subsidence damage.'' (60 FR at 16735).
While this statement was made in the context of damage to structures,
it applies equally to water loss complaints. The proposal by
Pennsylvania to provide a water loss claims investigation procedure for
affected property owners was carefully considered by the Director
relative to the existing requirements for addressing complaints by
citizens under 30 CFR Part 842. Currently, the approved Pennsylvania
program regarding citizen complaint investigations and enforcement
provides that if an inspection is made, the Department will notify the
citizen within 10 days of completion of the inspection of the results.
If no inspection is made, the Department will notify the citizen within
15 days of receipt of the complaint. Pennsylvania's approved citizen
complaint rules are consistent with 30 CFR 842.12 and allow latitude in
determining what constitutes the point at which an inspection is
complete to allow for the collection of necessary data (see 49 FR
10253-58). The Director recognizes that, in certain cases, citizen
complaint inspection duties could be completed prior to the 45 days
specified in section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)). Under existing
citizen complaint rules, once an inspection is completed, Pennsylvania
has 10 days to describe its enforcement action or lack thereof.
However, under the proposed provision, the completion of inspection
duties may occur in a short time, e.g. two days, but Pennsylvania would
have longer than 10 days to notify the citizen of its inspection
results, e.g. 43 days. This is inconsistent with Pennsylvania's
existing rules and the federal rules regarding time requirements for
responding to citizen complaints. To be consistent with the federal
rules, Pennsylvania must notify the citizen of its decision within 10
days of completing all the inspection duties. Therefore, the Director
is approving this portion of section 5.2(b)(2) (52 P.S. 1406.5b(b)(2))
to the extent that it is consistent with, or more timely than, its
citizen complaint procedures and is requiring Pennsylvania to amend its
program to the extent the time frames are longer than its citizen
complaint procedures.
The Director is not approving the portion of this provision that
states ``* * * where the contamination, diminution or interruption does
not abate within three years of the date on which the supply was
adversely affected.'' As noted in the preamble to the federal rules, a
permittee should connect the user to a satisfactory permanent water
supply within two years of notification (60 FR at 16727). Pennsylvania
makes reference to technical guidance that supports its standard that a
permanent water supply should be replaced within three years. However,
Pennsylvania failed to submit such technical information and OSM
[[Page 67017]]
knows of no technical guidance to support Pennsylvania's assertion.
Section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) allows three years to elapse
without issuance of an order requiring permanent restoration or
replacement. The process of ordering a permanent restoration or
replacement does not start until the three years expired. This means
that permanent restoration or replacement could go well beyond three
years, which is clearly not envisioned by OSM in drafting the federal
rules. Pennsylvania's statute delays permanent replacement by up to 50%
over the federal guidelines. Allowing an operator up to three years to
replace a water supply is not a ``prompt'' replacement, thus it is less
stringent than 720(a)(2) of SMCRA.
Section 5.2(c) (52 P.S. 1406.5b(c)). This section provides that an
underground mine operator is presumed to be responsible for
contamination, diminution or interruption of water supplies within a
rebuttable presumption area. The operator may successfully rebut the
presumption if the landowner denied the operator access to the property
to conduct a premining survey of the water supply.
There is no federal regulation that prohibits the state from
enacting a rebuttable presumption for water. In fact, by finding that
operators are presumed responsible for replacement of water supplies
within the presumption area, this portion of the statute will assist in
insuring that operators are promptly informed of their obligation to
replace affected supplies and will assure they promptly provide
emergency and temporary water. Thus, the Director finds that this
portion of the program is in accordance with Sec. 720(a)(2) of SMCRA,
which requires the prompt replacement of a protected water supply.
Section 5.2(d) (52 P.S. 1406.5b(d)). The full text of the language
of this section is as follows.
Unless the presumption contained in subsection (c) applies, a
landowner, the department or any affected user asserting
contamination, diminution or interruption shall have the burden to
affirmatively prove that underground mining activity caused the
contamination, diminution or interruption. Wherever a mine operator,
upon request, has been denied access to conduct a premining survey
and the mine operator thereafter served notice upon the landowner by
certified mail or personal service, which notice identified the
rights established by sections 5.1 and 5.3 and this section, was
denied access and the landowner failed to provide or authorize
access within ten days after receipt thereof, then such affirmative
proof shall include premining baseline data, provided by the
landowner or the department, relative to the affected water supply.
The amendment provides that the Department, or a landowner outside
the rebuttable presumption area, has the burden of proof in claiming
that a water supply has been contaminated, interrupted or diminished.
This is consistent with enforcement actions where the regulatory
authority has the initial burden, so the Director is approving this
language. However, the last sentence of this portion of the amendment
requires that the burden of proof for landowners who deny access to an
operator to conduct a premining survey, must include premining baseline
data as supplied by the landowner or the Department. The portion of the
amendment requiring premining baseline data as a condition of
establishing burden of proof makes it less effective than the federal
regulations at 30 CFR 817.41(j). This section of the federal
regulations requires the baseline hydrologic information required in 30
CFR 780.21 and 784.14 to be used to determine the impact of mining
activities upon the water supply. Such information is to be supplied by
the applicant. The proposed amendment requires the Department, or
landowner, to provide data that is to be supplied by the operator in
the permit application. Therefore, the following portion of the
amendment is less effective than the federal regulations: ``Wherever a
mine operator, upon request, has been denied access to conduct a
premining survey and the mine operator thereafter served notice upon
the landowner by certified mail or personal service, which notice
identified the rights established by sections 5.1 and 5.3 and this
section, was denied access and the landowner failed to provide or
authorize access within 10 days after receipt thereof, then such
affirmative proof shall include premining baseline data, provided by
the landowner or the Department, relative to the affected water
supply.'' The Director is not approving this language.
Section 5.2(e)(1) (52 P.S. 1406.5b(e)(1)). This section provides
that a mine operator can be relieved of liability for affecting a
public or private water supply when the contamination, diminution or
interruption of the supply existed prior to the mining activity. There
is no direct federal counterpart to this provision. However, the
federal definition of ``replacement of water supply'' at 30 CFR 701.5,
requires the replacement of protected water supplies whenever the
supplies were affected by coal mining operations. If all the
contamination, diminution or interruption existed prior to the start of
coal mining operations, then the supply was not affected by the coal
mining operations. If additional contamination, diminution or
interruption occurred after the start of the coal mining operations,
then the operator would become liable for the damage caused to the
water supply by the coal mining operations. Thus, the Director finds
that this subsection is consistent with 30 CFR 701.5 and is approving
this portion of Pennsylvania's amendment.
Section 5.2(e)(2) (52 P.S. 1406.5b(e)(2)). This section provides
that a mine operator can be relieved of liability for affecting a
public or private water supply when the contamination, diminution or
interruption occurred more than three years after mining activity
occurred. In our letter of June 23, 2000, we indicated to Pennsylvania
that the statute of limitations proposed by this section will allow
water supplies that otherwise will be protected under federal
regulations to continue to be contaminated, diminished or interrupted
because mining occurred more than three years prior to the onset of
water supply problems. PADEP responded in their letter to OSM dated
July 14, 2000, that the same reasoning applied to the statute of
limitation issue of section 5.1(b) of BMSLCA was applicable for this
section. In addition, Pennsylvania indicated that based on the
definition of the term ``underground mining activities,'' the
obligation to replace an affected water supply extends from the time a
water supply is first undermined until three years after the mine has
closed and reclamation has been completed. In essence, the period of
liability is equivalent to the liability period under the federal
regulations which ends at the time that jurisdiction would be
terminated under the federal program. Pennsylvania contends this period
should be sufficient to capture virtually all water supply impacts that
occur as a result of the underground mining activity.
The Director is not approving this portion of the BMSLCA for
several reasons. First, even though there have been no cases reported
to date where this provision has been used to deny restoration or
replacement of affected supplies, it does not mean that it will not
happen. If this provision were ever used to deny coverage that would
otherwise have been provided under federal regulations, it would be
less effective than the federal requirements. This provision virtually
assures that at some point in time, there will be a water supply that
would not be restored or replaced because the landowner did not
[[Page 67018]]
report the contamination, diminution or interruption within the noted
time frame.
Second, for the reasons discussed in our findings for section
5.1(b) (52 P.S. 1406.5a(b)), which are incorporated herein, the
Director believes this section to be less effective. Additionally,
Pennsylvania's three-year limit is not a normal statute of limitations
because it is not tied to an injury. It ignores the legislative history
of analogous Sec. 516 of SMCRA, which acknowledges that ``[s]ubsidence
occurs * * * on a random basis, at least up to 60 years after mining.''
H.R. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977). Pennsylvania's
argument that the net effect of 5.2(e)(2) is the same as the federal
termination of jurisdiction rule is erroneous. According to
Pennsylvania, it is eliminating an operator's liability three years
after the mine has closed and reclamation is completed. However, both
the termination of jurisdiction rule (30 CFR 700.11(d)) and the EPAct
regulations (30 CFR Secs. 701.5 and 817.41(j)) recognize that a
regulatory authority's jurisdiction may not end, if at all, until all
the performance standards are met. The termination of jurisdiction
rule, while consistent with the EPAct regulations, is not applicable
since subsidence can occur on a random basis at any time. Thus, an
operator's liability extends indefinitely into the future. 60 FR at
16736. With section 5.2(e)(2) (1406.5b(e)(2)), once the three years
have passed, there is no recourse for the landowner and no way to force
an operator to restore or replace a water supply even though a water
supply may be affected long after the three years.
Section 5.2(e)(3) (52 P.S. 1406.5b(e)(3)). This section allows a
mine operator to be relieved of liability for affecting a public or
private water supply when the contamination, diminution or interruption
occurred as the result of some cause other than mining. A commenter
noted this section could be construed as allowing an operator who is a
contributing cause of the water loss, to escape responsibility for a
loss for which the operator shares responsibility with another party.
Based on this comment, we asked Pennsylvania in our letter of June 21,
1999, to provide a state Attorney General's opinion that the law
assures that wherever the operator is partially or entirely responsible
for the water loss, state law imposes liability.
Pennsylvania supplied an opinion from the Bureau of Regulatory
Counsel in its letter to us dated June 1, 2000. The opinion indicates
that in accordance with the rules of statutory construction, the intent
of the Pennsylvania General Assembly was to provide a remedy for water
supplies affected by underground mining. This section is construed to
relieve an operator of responsibility to restore or replace a water
supply only where the contamination, diminution or interruption
occurred solely as a result of some cause other than mining. Where
mining is partly the cause of the contamination, diminution, or
interruption the mine operator will not be relieved of the statutory
obligation to restore or replace the affected water supply. The Rules
of Practice before the Pennsylvania Environmental Hearing Board also
support this intention.
There is no direct federal counterpart to this provision. However,
the federal definition of ``replacement of water supply'' at 30 CFR
701.5, requires the replacement, etc. of protected water supplies
whenever the supplies were affected by coal mining operations.
Therefore, this section, as explained by the Attorney General's
opinion, is consistent with the federal definition. The Director finds
Pennsylvania's explanation sufficiently responds to the commenter's
concerns, and is approving this portion of the amendment.
Section 5.2(f) (52 P.S. 1406.5b(f)). This section requires
operators who obtain water samples in a premining or postmining survey
to use a certified laboratory to analyze such samples. The operator
must submit copies of the results of such analysis to the Department
and to the landowner within 30 days of their receipt. Nothing in this
section will prohibit a landowner or water user from using an
independent certified laboratory to sample and analyze the water
supply. This provision is no less effective than 30 CFR 784.20(a)(3),
which requires a permit applicant to pay for a premining survey of the
quantity and quality of all protected water supplies and to provide
copies of such to the property owner and state regulatory authority.
The Director is approving this portion of the amendment.
Section 5.2(g) (52 P.S. 1406.5b(g)). This section indicates that if
an affected water supply is not restored or replaced within three years
an operator may be relieved of responsibility for replacement or
restoration of a water supply by (1) purchase of the property, or (2)
making a one-time payment equal to the difference between the
property's fair market value before the time the water supply was
affected and the time the payment was made. In our letter to
Pennsylvania dated June 21, 1999, we indicated that this section
appears to be less effective than the federal regulations because EPAct
has no provisions for relieving an operator of responsibility for water
restoration or replacement. EPAct also does not provide for
compensation in lieu of replacement or restoration.
In its response of June 1, 2000, Pennsylvania wrote that it may be
cost prohibitive to restore or replace a water supply. This section
provides the landowner the option of agreeing to compensation to
satisfy the mine operator's obligation to restore or replace the
affected water supply. Pennsylvania believes that by affording
landowners and water users monetary compensation in situations where it
is not reasonably possible to afford them an equitable remedy, its
program is consistent with federal law.
The Director is not approving this portion of the BMSLCA because it
is less stringent than section 720 of SMCRA, which requires the prompt
replacement of a protected water supply. The preamble to the federal
regulations at 30 CFR 817.41(j) implementing 720 of SMCRA states:
A commenter recommended that compensation be available as an
option for those limited circumstances where an impacted supply
can't be restored. The commenter went on to note that Congress, in
enacting the Energy Policy Act, clearly noted that these provisions
were not to prohibit, or interrupt underground coal mining
operations. Without the compensation option, the commenter asserted
that operations would be forced to cease operating if they couldn't
replace the water supplies. OSM does not agree. The terms of the
Energy Policy Act unequivocally require replacement. Further, OSM
does not anticipate that underground mining operations will be
unable to comply with this statutory mandate. For example, if the
permittee is unable to restore a spring or aquifer, the permittee
should still be able to provide water from an alternative source,
such as a public water supply, or by pipeline from another location.
60 FR at 16733 (emphasis added).
Clearly both SMCRA and the federal regulations require restoration,
or replacement, and thus compensation in lieu of restoration or
replacement is not an option.
Section 5.2(h) (52 P.S. 1406.5b(h)). This section allows a
landowner to submit a written request asking PADEP to review an
operator's finding that a water supply cannot reasonably be restored or
that a permanent alternate source cannot reasonably be provided. In
response to the request, the Department will issue an advisory opinion
on the validity of the claim within 60 days. In our letter to
Pennsylvania dated June 21, 1999, we indicated that this section
appears to be less effective than the federal regulations because it
allows a finding
[[Page 67019]]
that a permanent alternate source cannot be provided. EPAct requires a
source to be provided without exception.
In its response of June 1, 2000, Pennsylvania reiterated its
argument in response to our comments on section 5.2(g) of BMSLCA.
Pennsylvania notes that providing an opinion for landowners on whether
they should proceed to elect a damage remedy, has done nothing more
than provide a means to assure that a landowner does not accept
compensation in lieu of ``equitable-type'' replacement relief unless it
is true that a replacement water supply cannot be reasonably provided
by the mine operator. Pennsylvania also indicated that BMSLCA addresses
a broader array of water supplies than the federal program. The option
to compensate represents a reasonable policy choice that provides a
flexible approach to the water supply replacement obligation of
underground operators. Finally, Pennsylvania noted that Sec. 720 of
federal SMCRA provides that the water supply replacement obligation
shall not be construed to prohibit or interrupt underground mining. It
is entirely possible underground mining conducted under the federal
program may result in impacts to water supplies that cannot reasonably
be replaced. In these situations the regulatory authority would be
faced with accepting some alternative type of settlement that is
reasonable and equitable to the mine operator and landowner.
As noted in the Director's decision on section 5.2(g) (52 P.S.
1406.5(b)(g)) of the BMSLCA, SMCRA and the federal regulations require
the replacement or restoration of water supplies without exception. The
Director is not approving this portion of the BMSLCA because it is
connected with section 5.2(g) (52 P.S. 1406.5(b)(g)) that allows
compensation in lieu of replacement or restoration. Section 5.2(h) (52
P.S. 1406.5(b)(h)) is not self-sustaining and is unenforceable without
section 5.2(g) (52 P.S. 1406.5(b)(g)). Therefore, it is inconsistent
with the requirements of SMCRA and the federal regulations.
Section 5.2(i) (52 P.S. 1406.5b(i)). This section defines the term
``permanent alternate source'' to include any well, spring, municipal
water supply system or other supply approved by the Department which is
adequate in quantity, quality and of reasonable cost to serve the
premining uses of the affected water supply. In our letter to
Pennsylvania dated June 21, 1999, we indicated that this section
appears to be less effective than the federal rules because it bases
the adequacy of a permanent alternate source of water on premining uses
of the water supply rather than the premining quality and quantity and
that the reasonable cost provision of this section makes it appear to
be less effective than federal regulations which require replacement
without regard to cost.
In its response to us of June 1, 2000, Pennsylvania noted that our
comments were an incorrect characterization of the statutory provision.
The requirement that a replacement water supply must be of reasonable
cost is intended to protect landowners and water users from being
forced to accept water supplies that are unreasonably expensive to
operate or maintain. Replacement water supplies with high costs to
operate or maintain would only be acceptable if the mine operator
provided for payment of the high costs.
The Director is not approving the portion of this provision that
requires permanent alternate replacement sources to be of reasonable
cost. The definition of the term ``replacement of water supply'' as
found in the federal regulations at 30 CFR 701.5 indicates that
replacement includes payment of operation and maintenance costs in
excess of customary and reasonable delivery costs of premining water
supplies. Pennsylvania's argument that the requirement that a
replacement water supply must be of reasonable cost is intended to
protect landowners is not tenable because the federal rules require
operators to assume the operation and maintenance costs of the
replacement delivery systems if they are ``beyond those that are
customary and reasonable for the premining supply.'' 60 FR at 16726.
Therefore, the Director is not approving the phrase ``and of reasonable
cost'' in this section. However, the Director is approving the
remaining portion of this section. For a more complete discussion of
the Director's decision regarding quality and quantity standards for
replacement or restoration of water supplies, please see the Director's
findings for sections 5.1(a)(1) and (a)(2) (52 P.S. 1406.5a(a)(1) and
(a)(2)), which are incorporated into this finding.
Section 5.2(j) (52 P.S. 1406.5b(j)). This section requires an
operator to describe how water supplies will be replaced. This section
also provides that the Department cannot require a mine operator to
provide a replacement water supply prior to mining as a condition of
securing a permit to conduct underground mining. There is no direct
federal counterpart to this section. The Director finds that this
portion of the amendment is in accordance with that portion of
720(a)(2) of SMCRA which states that ``[n]othing in this section shall
be construed to prohibit or interrupt underground coal mining
operations.'' Therefore, the Director approves this portion of the
amendment.
Section 5.2(k) (52 P.S. 1406.5b(k)). This section allows any
landowner, water user, or mine operator, aggrieved by an order or
determination of the department issued under this section, the right to
appeal the action to the Environmental Hearing Board within 30 days of
receipt of the order. This section allows an appeal right that is found
within numerous other sections of Pennsylvania's approved program and
therefore is no less effective than the federal regulations at 30 CFR
843.16 (implementing 30 CFR 840.13). The Director approves this
section.
Section 5.3(a) (52 P.S. 1406.5c(a)). This section provides that the
operator and the landowner may enter into an agreement that establishes
the manner and means by which an affected supply will be restored or an
alternative supply will be provided or providing compensation for the
affected water supply. It also lists what conditions must first be met
before the operator will be released from liability. Finally, it
prohibits double compensation to the landowner. In our letter of June
21, 1999, to Pennsylvania, we noted that EPAct does not allow
compensation for contamination, loss or diminution of water supplies in
lieu of replacement. In its response of June 1, 2000, Pennsylvania
noted these concerns were the same that we noted in sections 5.2(g) and
5.2(g)(1). Pennsylvania's response for this section is the same as in
those sections. In addition, Pennsylvania noted that the decision in
National Mining Assoc. v. U.S. Department of the Interior, 172 F.3d 906
(D.C. Cir. 1999), recognizes the legitimacy of voluntary agreements for
damages under the federal regulatory program.
The Director is approving this provision to the extent that the
agreement to replace a water supply or provide an alternative water
supply meets the requirements established in the federal definition of
``Replacement of Water Supply'' found at 30 CFR 701.5. The Director is
not approving agreements that provide for replacement of an alternate
supply of water to the extent that water supply will not meet the
requirements of the federal definition.
The Director is also not approving this provision to the extent
that it allows compensation in lieu of restoration or replacement of
affected water supplies. The federal rules do not allow operators and
landowners to enter into voluntary
[[Page 67020]]
agreements for compensation in lieu of restoration or replacement of
affected water supplies. As previously noted, in the Director's Finding
for section 5.2(g), which is incorporated herein, SMCRA and the federal
rules require restoration or replacement. The terms of EPAct
unequivocally require replacement. 60 FR at 16733 (emphasis added).
Therefore, this is less effective than SMCRA and the federal rules. The
Director would note that Pennsylvania's reliance on the National Mining
Association decision is misplaced. The voluntary agreements that are
discussed in the court decision are compensation agreements for
subsidence damages to any noncommercial building or occupied
residential dwelling. The opinion does not extend or recognize
compensation agreements for damages to water supplies.
Section 5.3(b) (52 P.S. 1406.5c(b)). This section provides that any
agreement made under section 5.3(a) (52 P.S. 1406.5c(a)) must be
included in every deed for conveyance of the property covered by the
agreement. The Director is not approving this provision to the extent
that section 5.3(a) (52 P.S. 1406.5c(a)) has not been approved and
hence there will be no agreements providing for compensation in lieu of
water supply replacement or restoration. Therefore, section 5.3(b) (52
P.S. 1406.5c(b)) is inconsistent with the requirements of SMCRA and the
federal regulations to the extent that section 5.3(a) (52 P.S.
1406.5c(a)) is less effective.
Section 5.3(c) (52 P.S. 1406.5c(c)). This section allows a
landowner or water user who claims contamination, diminution or
interruption of a water supply to seek any other remedy that may be
provided at law or in equity. The section further indicates that in any
proceedings in pursuit of remedies other than provided in this Act, the
provisions of this act shall not apply and the party or parties against
whom liability is sought to be imposed may assert in defense any rights
or waivers arising from provisions contained in deeds, leases or
agreements pertaining to mining rights or coal ownership on the
property in question.
In our letter of June 21, 1999, we asked Pennsylvania to clarify
the intent of this section. In particular we wanted to know what was
meant by other remedies as used in this section, and if this section
allows an operator to assert rights that afford lesser protection than
is provided by EPAct.
In its response of June 1, 2000, Pennsylvania indicated that the
General Assembly appeared to want to preserve any remedy a landowner or
water user had under existing law covering adverse effects to a water
supply caused by underground mining. This section gives the landowner
or water user the option of pursuing the remedies provided by BMSLCA
for water loss, contamination or diminution or pursuing the remedies
available at common law or pursuing the remedies available under
federal law. Pennsylvania concluded by noting that a mine operator
could only assert rights that afford lesser protection than is provided
by EPAct if the water user elects to pursue a common law remedy and the
mine operator possesses such rights.
This section is inconsistent with Sec. 720(a)(2) of SMCRA and the
federal rules to the extent that any state law negates the requirements
of, or provides less protection than, EPAct. In a challenge to the
federal rules (30 CFR Sec. 817.41(j), 817.121(c)(2) and 701.5),
industry plaintiffs asserted that these regulations interfered with
state law water rights and that the Energy Policy Act did not preempt
state law, thereby allowing a landowner's waiver of water replacement.
National Mining Association v. Babbitt, Civil Action No. 95-0938
(D.D.C. May 29, 1998). The district court agreed with OSM that the
federal rules do not interfere with state law water rights. See also,
60 FR 16727, 16733 (March 31, 1995). The court went on to hold that the
Energy Policy Act ``created federal substantive rights that may extend
beyond the protections afforded by inconsistent or less protective
state laws . . . . Congress did not include limitations in Sec. 720 and
instead made the duty to replace or repair a water supply absolute and
without exception.'' Id. at 12 (emphasis added). For example, any
rights or waivers found in deeds or leases or agreements that waive or
reduce the protections of EPAct are less stringent and not approved.
However, any Pennsylvania law that exceeds the requirements of EPAct is
in accordance with SMCRA. Also, matters involving property rights
disputes are beyond the scope of SMCRA (see Sec. 507(b)(9) and
510(b)(6)(C) of SMCRA). Accordingly, the Director is not approving this
section to the extent any state law negates or provides less protection
than EPAct.
Section 5.4(a) (52 P.S. 1406.5d(a)). This section requires the
operator to either repair or compensate owners for damage to certain
structures caused by underground mining operations. Compensation is to
be made to the owner of structures overlying, or in the proximity of,
the mine for the reasonable cost of its repair or the reasonable cost
of its replacement where the damage is irreparable. Section 720(a)(1)
of SMCRA provides for repair of material damage, which ``shall include
rehabilitation, restoration, or replacement of the damaged'' structure
or dwelling or compensation in the full amount of the decrease in value
resulting from the subsidence. Pennsylvania's statute, as implemented
by its regulation at 25 Pa. Code 89.142a(f)(1), states that the
operator shall fully rehabilitate, restore, replace or compensate the
owner for material damage. The two standards for repair are
substantively identical because they both require the operator to
rehabilitate, restore, or replace the damaged structure. However,
Pennsylvania's standards for compensation are different than SMCRA's
because Pennsylvania's are based on the repair or replacement costs
while SMCRA's are based on the decrease in value. Even though the
standards are different, OSM believes that Pennsylvania's compensation
standard is no less stringent than SMCRA since the standard is based on
providing the amount of funds required to repair or fully replace the
structure. For example, in one federal enforcement case, the
construction estimate to repair the structure significantly exceeded
the appraisal of the structure's diminished value. Therefore, the
Director finds that Pennsylvania's compensation standard is no less
effective than Sec. 720(a)(1) of SMCRA because it provides compensation
equal to the amount needed by a property owner to repair a structure or
to purchase, or build, another structure.
OSM was concerned with Pennsylvania's use of the phrase ``in the
proximity of the mine.'' SMCRA has no distance limitation. Accordingly,
we asked PADEP in our letter of June 21, 1999, what the phrase ``in the
proximity of the mine'' meant in regard to the protections afforded by
this section. Pennsylvania in its response of June 1, 2000, indicated
that while the term was not defined in statute or regulation, it
understands the term to mean the structures defined in this section do
not have to be directly above the mine workings in order to be covered
by repair or compensation requirements, and that the phrase recognizes
the fact that subsidence effects often extend outward from points where
coal is extracted in a mine. Pennsylvania stated that the phrase is not
interpreted to impose any specific distance limitations. We find this
explanation does not place any limits on the location of protected
structures and find section 5.4(a) (52 P.S. 1406.5d(a)) no less
stringent than SMCRA.
[[Page 67021]]
While section 5.4(a) (52 P.S. 1406.5d(a)) is no less stringent than
SMCRA in terms of definition and coverage of types of structures, the
Director is requiring Pennsylvania to amend section 5.4 (52 P.S.
1406.5d) to require the prompt repair and compensation for those
structures protected under Sec. 720(a)(1) of SMCRA and 30 CFR
817.121(c)(2). The Director is requiring this amended protection
because section 5.5 (52 P.S. 1406.5e) of the BMSLCA, and its
implementing regulations under 25 Pa. Code 89.143a, proposed a number
of subsidence damage investigation and enforcement procedures that do
not provide for prompt repair of, or compensation for, covered
structures in certain situations. In requiring the added language, the
enforcement actions requiring prompt repair and compensation will, at a
minimum, be handled in conformance with Chapter 86, Subchapter H
(Enforcement & Inspection), which requires citation and abatement of
violations within a reasonable time.
Please see the Director's findings for sections 5.4(a)(1) through
(3) (52 P.S. 1406.5d(a)(1) through (3)) for further information.
Section 5.4(a)(1) and (a)(2) (52 P.S. 1406.5d(a)(1) and (a)(2)).
These sections provide restoration or compensation to owners of
buildings that are accessible to the public, including commercial,
industrial or recreation buildings and their permanently affixed
structures as well as any noncommercial buildings customarily used by
the public. The federal rule at 30 CFR 817.121(c)(3) requires that non-
commercial buildings must be repaired or the owner compensated. Non-
commercial building is defined at 30 CFR 701.5 as a building that is
used as a public building or a community or institutional building as
that term is defined in 30 CFR 761.5. Buildings used only for
commercial, agricultural, industrial, or retail or other commercial
enterprises are not protected in the federal rules.
While Pennsylvania's statute protects some buildings not protected
by the federal rules, we were concerned that the Pennsylvania statute
was not as inclusive of buildings protected by the federal regulations.
In our letter to Pennsylvania of June 21, 1999, we asked for
clarification. In its response to us dated June 1, 2000, Pennsylvania
indicated that the regulations implementing the changes to the act
define the term noncommercial building to include any community or
institutional building covered by definition in section 25 Pa. Code
86.101. The definition of community or institutional building in
section 25 Pa. Code 86.101 includes scientific and correctional
facilities and structures used for public services. Pennsylvania stated
that its program therefore includes all noncommercial buildings covered
under the federal program.
We find that Pennsylvania's explanation is reasonable and find that
the approved program does cover the same structures as the federal
definition describes in the term ``community or institutional
buildings'' and is no less effective than the federal rules. The
Director is approving this portion of the amendment.
Section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)). This section reads in
part:
Restoration or compensation for structures damaged by
underground mining--(a) Whenever underground mining operations
conducted under this act cause damage to any of the following
surface buildings overlying or in the proximity of the mine:
(3) dwellings used for human habitation and permanently affixed
appurtenant structures or improvements in place on the effective
date of this section or on the date of the first publication of the
application for a Mine Activity Permit or a five-year renewal
thereof for the operations in question and within the boundary of
the entire mine as depicted in said application; * * * the operator
of such coal mine shall repair such damage or compensate the owner
of such building for the reasonable cost of its repair or the
reasonable cost of its replacement where the damage is irreparable.
In our letter to Pennsylvania of June 21, 1999, we noted that:
There is no federal requirement that the structure be within the
boundary of the entire mine. Pennsylvania does not define
``improvements.'' The Black's Law Dictionary defines improvements as
``[a]
valuable addition made to property (usually real estate) or an
amelioration in its condition, amounting to more than mere repairs
or replacement, costing labor or capital, and intended to enhance
its value, beauty or utility or to adapt it for new or further
purposes. Generally, buildings, but may also include any permanent
structure or other development, such as a street, sidewalks, sewers,
utilities, etc.'' Thus, the regulation may be internally
inconsistent since it appears that ``improvements'' and
``permanently affixed appurtenant structures,'' which is defined by
Pennsylvania, include some of the same things.
In its response of June 1, 2000, Pennsylvania noted that DEP
considers improvements to include ``valuable additions'' that fall
outside the scope of the term permanently affixed appurtenant
structures. Pennsylvania stated that according to the rules of
statutory construction, only improvements must be completely within the
boundary of the mine before the operator has a duty to repair or
compensate. Pennsylvania also declared that only improvements must be
in place on the effective date of the proposed regulations or on the
first publishing date of the mine permit.
The federal rules protect structures in place at the time of mining
that are installed on, above or below, or a combination thereof, the
land surface if that building, structure or facility is used in
connection with an occupied residential dwelling (see 30 CFR
817.121(c)(2) and the definition of ``occupied residential dwelling and
structures related thereto'' at 30 CFR 701.5).
Pennsylvania's protection of structures is more limited than the
federal requirements because it requires improvements to be in place at
the time of permit application or at the time of the five-year renewal
and within the boundary of the mine. The federal definition protects
improvements that were in place at the time of mining as long as they
were related to a structure. Thus, a structure could have been built
after the permit application or five-year renewal and still be
protected at the time of mining under the federal rules, but not under
section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) of the BMSLCA. Additionally,
this section of the BMSLCA requires improvements to be located within
the boundary of the mine to be protected. The federal rules do not have
a similar restriction.
The Director finds that the portion of section 5.4(a)(3) (52 P.S.
1406.5d(a)(3)) that states ``dwellings used for human habitation and
permanently affixed appurtenant structures or improvements'' is no less
effective than the federal regulations and is approving it. This
portion of the amendment provides protections similar to that provided
by the federal definition of the term ``occupied residential dwelling
and structures related thereto'' found at 30 CFR 701.5. However, the
Director has found the following phrase in section 5.4(a)(3) (52 P.S.
1406.5d(a)(3)) to be less effective than the federal regulations in
protecting some structures related to residential dwellings: `` * * *
in place on the effective date of this section or on the date of first
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the
boundary of the entire mine as depicted in said application.'' The
Director is not approving this phrase. For the Director's findings on
the term ``permanently affixed appurtenant structures'' please see the
discussion of that term under 25 Pa. Code 89.5.
[[Page 67022]]
Section 5.4(a)(4) (52 P.S. 1406.5d(a)(4)). This section provides
restoration or compensation of agricultural structures. Pursuant to 30
CFR 817.121(c)(3), repair or compensation for material damage to
agricultural structures is required to the extent allowed under state
law. The Director is approving this portion of the amendment because it
provides for protection for structures that are not protected under the
federal regulations and is consistent with 30 CFR 817.121(c)(3).
Section 5.4(b) (52 P.S. 1406.5d(b)). This section allows an
operator to replace an irreparably damaged agricultural structure with
a structure satisfying the functions and purposes served by the damaged
structure before such damage occurred--if the structure was used for a
purpose different from that for which it was originally constructed.
Pursuant to 30 CFR 817.121(c)(3), repair or compensation for material
damage to agricultural structures is required to the extent allowed
under state law. The Director is approving this portion of the
amendment because it provides for protection for structures that are
not protected under the federal regulations and is consistent with 30
CFR 817.121(c)(3).
Section 5.4(c) (52 P.S. 1406.5d(c)). This section indicates the
operator will not be required to repair a structure or compensate a
structure owner for damage if the operator demonstrates the landowner
denied access to the operator to conduct a premining survey. The
section requires operators to serve notice on the landowner by
certified mail or by personal service of the landowners rights
established by sections 5.4, 5.5, and 5.6. In our letter to
Pennsylvania dated June 21, 1999, we noted that under the federal rule
at 30 CFR 817.121(c)(4)(iii), denial of access does not relieve the
operator of its duty to repair or compensate landowners for subsidence
damage. In its response to us dated June 1, 2000, Pennsylvania noted
that:
Act 54 imposes a statutory presumption of liability on the coal
operator for structural damages and consistent with OSM's rationale,
a homeowner who denies access, would preclude the regulatory agency
and the operator from determining where the operator's liability
should begin and where it should end.
All Pennsylvania has done with respect to the right to assert a
claim for compensation is to condition that right; it has not denied
anyone their right to seek a repair or compensation remedy in the
event their properties are damaged by mine subsidence. The
requirement that persons who intend to invoke their rights to repair
or compensation allow the potentially responsible mine operator an
opportunity to inspect the property prior to mining is a reasonable
condition and one which does not render Pennsylvania's program less
effective.
The Director finds that section 5.4(c) (52 P.S. 1406.5d(c)) is less
effective than the federal regulations because the federal rules
requiring repair or compensation for damage to non-commercial buildings
and dwellings and related structures (30 CFR 812.121(c)(2)) do not
provide exception for any reason when an operator's underground mining
operation has caused subsidence damage. Pennsylvania has failed to
account for information that the homeowner or the regulatory authority
possesses. It is possible that the homeowner may hire someone to
conduct a survey. In Pennsylvania's scenario, the homeowner would have
no relief under Act 54 even though he had relevant information that
showed causation. As a result, the Director is not approving this
provision.
Additionally, in the preamble to the March 31, 1995, federal rules
on subsidence (60 FR at 16741), OSM discussed the effect of a landowner
denying access to a property and concluded that in any enforcement
proceeding OSM or the regulatory authority may take the effect of the
denial into account in determining what weight, if any, to give to the
rebuttable presumption of causation. Even though the federal rules
concerning the presumption were suspended, this part of the preamble
clearly indicates OSM's intent that enforcement actions would proceed
even if landowners denied permission to operators to conduct premining
surveys. There are no passages in the preamble or the regulations that
relieve operators of their duty to repair or compensate landowners for
subsidence damage to covered structures.
Section 5.5(a) (52 P.S. 1406.5e(a)). This section requires owners
of buildings described in section 5.4(a) (52 P.S. 1406.5d(a)), who
believe removal of coal has caused mine subsidence damage, to notify
the operator of the damage. In our letter to Pennsylvania dated June
21, 1999, we noted that this section appears to be less effective than
the federal regulations because EPAct does not require landowners to
notify operators of damage.
In its response of June 1, 2000, Pennsylvania noted that:
This is the same concern presented in OSM Statutory Comment 5
regarding [BMSLCA's]
water supply replacement provisions. The
response to that comment is also applicable here. In making this
comment, OSM is failing to consider that in reality there has to be
interaction between the operator and the structure owner in order to
expedite the repair/compensation process. The sooner this
interaction occurs, the sooner claim resolution can begin. The claim
resolution procedures set forth in section 5.5 are intended to
promote settlements without [PA]DEP involvement. [PA]DEP involvement
is intended as a ``second tier'' of protection for the structure
owner.
Similar to the issues discussed under section 5.2(a)(1) (52 P.S.
1406.5b(a)(1)) for water loss notifications, the Director carefully
considered Pennsylvania's proposed requirement that landowners notify
operators with a claim of subsidence damage. The Director considered
the proposal relative to the requirements for subsidence damage
protection (30 CFR 817.121) and the requirements for addressing
complaints by citizens (30 CFR part 842). As with water loss, it is
important to note that under both the federal and the proposed
Pennsylvania requirements, material damage resulting from underground
mining that employs planned subsidence is not prohibited. Once damage
occurs, the federal requirements require prompt repair or compensation,
while Pennsylvania's proposed requirements provide for a six-month
period where the property owner and the permittee address the damage
without PADEP involvement. Specifically at issue under section 5.5(a)
(52 P.S. 1406.5e(a)) is whether the requirement for landowners to
notify operators of mine subsidence damage is in any way less effective
than federal requirements.
EPAct and 30 CFR 817.121(c) are silent on how the operator is
notified of structure damage. Under 720 of SMCRA, permittees are
responsible for prompt repair or compensation regardless of whether
they are contacted by property owners or by the regulatory authority in
cases where the property owners fail to do so. Under section 5.5(a) (52
P.S. 1406.5e(a)) of the BMSLCA, Pennsylvania has elected to establish a
subsidence damage notification procedure that requires the property
owner to contact the operator. The proposed changes to the Pennsylvania
program are silent on any procedures that will be followed in the event
that landowners choose to notify the Department rather than the
operator. However, under section 5.5(b) (52 P.S. 1406.5e(b)), 5.5(c)
(52 P.S. 1406.5e(c)), and 25 Pa. Code 89.143(a), Pennsylvania
established a specific procedure for
[[Page 67023]]
investigating and enforcing structure repair and compensation
requirements for those landowners that provide notification to the
operator.
The Director is approving the portion of section 5.5(a) (52 P.S.
1406.5e(a)) of the BMSLCA that deals with notification of the operator.
Because EPAct and the federal rules do not set a federal standard
concerning structure damage notification, the proposed Pennsylvania
requirement that the property owner contact the operator is not
inconsistent with SMCRA and 30 CFR 817.121(c). The Director's required
amendment of section 5.4(a) (52 P.S. 1406.5d(a)) will insure the prompt
repair and compensation for all structures covered by EPAct whether or
not a landowner has contacted the operator as required by section 5.5
(52 P.S. 1406.5e) of BMSLCA or 25 Pa. Code 89.143(a).
However, the Director finds that use of the phrase ``removal of
coal has caused mine subsidence'' when describing suspected causes of
subsidence damage is not as effective as SMCRA. Section 720(a) of SMCRA
provides that operators are responsible for repairing or compensating
landowners for subsidence damages caused by underground coal mining
operations. Underground coal mining operations include more activities
than just the removal of coal. Consequently, section 5.5(a) (52 P.S.
1406.5e(a)) acts to limit the operator's responsibility for repair or
compensation to subsidence damage caused by coal removal. As a result,
the Director is requiring Pennsylvania to amend section 5.5(a) (52 P.S.
1406.5e(a)) to make it clear that operators are responsible for
subsidence damage from underground mining operations, not just removal
of coal. As a result of this amendment, structure owners who suspect
subsidence damage was caused by underground coal mining operations
would report such damage to the operator.
Section 5.5(b) (52 P.S. 1406.5e(b)). This section provides that
landowners may file a claim with the Department if they cannot come to
terms with the operator within six months from the date of notice as to
the cause of the damage. This section also requires all claims to be
filed within two years of the date damage to the building occurred. In
our letter to Pennsylvania dated June 21, 1999, we indicated that the
portion of this section dealing with the six-month notification period
does not appear to be as effective as the federal regulation because it
does not require the prompt repair or compensation of subsidence
damage. In our letter to Pennsylvania dated June 23, 2000, we indicated
that the portion of the statute requiring claims to be filed within two
years of the date damage to the building occurs ends or limits the
Department's responsibilities if a written claim was filed more than
two years after the date of damage to the building. The statute does
not allow the Department to conduct required investigations or require
operators (via notice of violation) to promptly repair or compensate
landowners for damage to structures protected by EPAct, and may not be
as effective as the federal regulations. While Pennsylvania does not
have a termination of jurisdiction rule, these provisions are contrary
to the federal rule at 30 CFR 700.11(d).
In its letter to us dated June 1, 2000, Pennsylvania indicated that
section 5.5(b) (52 P.S. 1406.5e(b)) does not necessarily preclude the
prompt settlement of structure damage claims, it simply gives mine
operators and structure owners six months to come to terms on the means
of settlement. With regard to the provision requiring claims to be
filed within two years of the date damage to the building occurs,
Pennsylvania wrote in its letter to us dated July 14, 2000, that the
limitation only pertains to PADEP's responsibility to conduct an
investigation and does not release a mine operator from the
responsibility to repair or compensate for structure damage. The
statute does not prohibit PADEP from becoming involved in the
resolution of cases that have gone beyond the two-year claim period.
Pennsylvania further noted this section does not end PADEP's
responsibilities. Section 5.5(c) (52 P.S. 1406.5e(c)) requires PADEP to
issue orders directing the operator to compensate the owner or cause
repairs to be made. Section 9 (52 P.S. 1406.9) also authorizes the
Department to issue orders necessary to aid in enforcement of BMSLCA,
which includes the enforcement of the operator's obligation to
compensate the owner or to repair the subsidence. With regard to the
comment that this provision is contrary to the federal rule at 30 CFR
700.11(d), Pennsylvania reiterated the argument made in response to our
comment on section 5.1(b) (52 P.S. 1406.5a(b)).
The proposal by Pennsylvania to provide a specific claims
investigation procedure for affected property owners was carefully
considered by the Director relative to the existing requirements for
addressing complaints by citizens under 30 CFR part 842 and the
approved Pennsylvania program (see 49 FR 10253-58, March 20, 1984). As
we stated in the preamble to the federal EPAct rules, ``existing
citizen complaint procedures are adequate and appropriate to address
surface owner complaints of subsidence damage.'' (60 FR at 16735).
Currently, the approved Pennsylvania program contains a citizen
complaint investigation and enforcement process consistent with 30 CFR
part 842. That process does not prohibit citizen complaints or limit
the ability of the Department to take enforcement actions based on
whether a landowner has served notice to an operator alleging damage.
Pennsylvania's response with respect to the six-month delay pointed
out that ``it simply gives mine operators and structure owners six
months to come to terms on the means of settlement.'' The EPAct and
implementing rules provide sufficient flexibility to take into account
site conditions, potential repair and compensation alternatives, and
other relevant factors to judge whether a permittee has met the
requirement to promptly repair or compensate for structure damage.
Additionally, section 5.5(b) (52 P.S. 1406.5e(b)) ignores the
requirement of 720(a)(1) of SMCRA, which requires the prompt repair of,
or compensation for protected structures. It allows six months to pass
without operator action even if the operators reach an early impasse
with the owners. Section 5.5(b) (52 P.S. 1406.5e(b)) would prohibit
Pennsylvania from issuing orders to require repair or compensation
before the six months elapsed. As noted under Section 5.4(a) (52 P.S.
1406.5d(a)), the Director is requiring Pennsylvania to amend its
program to require prompt repair and compensation in all cases of
EPAct-covered structure damage. To ensure that Pennsylvania possesses
adequate authority to issue orders requiring the prompt repair and
compensation, regardless of whether the structure owner has notified
the Department or the permittee, the Director is not approving the
portion of this provision that states `` * * * within six months of the
date of the notice.''
Additionally, the section provides that a landowner's right to a
Department investigation will expire after two years. We disagree that
the Ninth Circuit case cited by Pennsylvania is applicable. The
proposition held by the court of appeals and cited by Pennsylvania
states that when a federal statute contains no limitations provisions,
an applicable state statute of limitations should be applied, unless
there is an analogous federal statute of limitations, or the state law
would frustrate or interfere with national policies. The Ninth Circuit
case is the general rule applicable to litigation involving private
parties. However, this general rule and its exceptions do not apply to
government
[[Page 67024]]
actions brought to vindicate public interests. Dole v. Local 427,
International Union of Electrical, Radio and Machine Workers, 894 F.2d
607 (3d Cir. 1990). The general rule that applies to government actions
is that ``no statute of limitations will be applied in civil actions
brought by the Government, unless Congress explicitly imposes such time
limitations.'' Dole, 894 F.2d at 610. The court of appeals in Dole,
held that no statute of limitations applies to the government so long
as a public purpose is served. While section 5.5(b) (52 P.S.
1406.5e(b)) of BMSLCA may benefit a private individual, this is no
different than the situation in Dole, where the Department of Labor
sued to enforce individual and public rights. The fact that a public
suit may benefit a private individual does not change the application
of the general rule for government actions. Under the provisions of the
BMSCLA, it will be Pennsylvania that will enforce the requirement that
the operator restore or compensate a protected structure. The
requirement to restore a structure or compensate its owner not only
serves a private purpose it also serves a public purpose as well. The
requirements not only protect private structure owners but buildings
owned by the government or that serve as a public building or a
community or institutional building.
Further, a time limit on subsidence damage claims is adverse to the
general scheme of SMCRA. For example, this section would limit
Pennsylvania's ability to take enforcement actions and would interfere
with the administrative methods established by 517 and 521 of SMCRA
since it could be difficult to determine when the structure was
initially affected. Since every state could have a different time
period, this section is contrary to the public policy of Sec. 102(a) of
SMCRA, which established a nationwide program and with 101(g) of SMCRA.
It could also preclude some citizen suits because in some situations, a
citizen might not know that Pennsylvania was not taking action until
the two years elapsed. Additionally, if a request for an investigation
by Pennsylvania of possible subsidence damage was not made within two
years from the date of structure damage, Pennsylvania would not
consider it a violation, because Pennsylvania would not investigate the
claim. Since it would not be a cited violation, this would prevent
Pennsylvania from holding operators responsible for subsidence damage
to structures.
We disagree with Pennsylvania that this time limitation is no less
effective than the federal rules. It is contrary to 505(b) of SMCRA,
which prohibits any state program from having state laws or regulations
that are inconsistent with SMCRA. Failure to repair or compensate a
structure owner is in direct contrast with the purposes of EPAct and
the federal regulations that require without a time limit, the repair
or compensation of protected structures. This is evidenced by language
in the Congressional House report that specifically rejected the
Secretary's regulations originally promulgated in 1983. The 1983
regulations only required repair or compensation of structures to the
extent allowed under state law. H.R. Rep. No. 474, 102d Cong., 2d Sess,
pt. 8 at 132 (1992). This provision is also contrary to citizen
complaint investigation standards.
With respect to Pennsylvania's characterization that the limitation
only pertains to PADEP's responsibility to conduct an investigation,
and does not release a mine operator from the responsibility to repair
or compensate for structure damage, the Director observes that the net
effect will be the same because the only entity, PADEP, that could
enforce the obligation is prohibited from doing so. As stated in
section 5.6(c) (52 P.S. 1406.5f(c)), the duty to repair or compensate
for subsidence damage is the sole and exclusive remedy for such damage.
If the operator refuses to acknowledge responsibility for repair or the
amount of compensation, and the structure owner did not request an
investigation within two years, the owner has no recourse because the
state is prohibited from conducting an investigation. We also assert
that Pennsylvania's characterization that the statute does not prohibit
PADEP from becoming involved in the resolution of cases that have gone
beyond the two-year claim period is misleading. First, Pennsylvania
fails to elaborate on how this could occur. OSM interprets the statute
to mean that, if the owner asks for an investigation within two years
but Pennsylvania's enforcement goes beyond two years, Pennsylvania can
continue its enforcement. If the owner fails to ask for an
investigation, Pennsylvania is precluded from enforcement. Finally, we
disagree with Pennsylvania's statement that section 5.5 (52 P.S.
1406.5e) does not end PADEP's responsibilities because of section
5.5(c) (52 P.S. 1406.5e(c)) of the BMSLCA. Section 5.5(c) (52 P.S.
1406.5e(c)) is completely reliant on section 5.5(b) (52 P.S.
1406.5e(b)). Section 5.5(c) (52 P.S. 1406.5e(c)) states that ``[t]he
department shall make an investigation of a claim within thirty days of
receipt of the claim.'' Section 5.5(b) (52 P.S. 1406.5e(b)) states if
the parties are unable to agree, the owner of the building may file a
claim with the Department. Thus, the reference to claim in 5.5(c) (52
P.S. 1406.5e(c)) refers to the claim discussed in 5.5(b) (52 P.S.
1406.5e(b)). Section 5.5(c) (52 P.S. 1406.5e(c)) does not discuss any
other options or alternatives. Based on the above rationale, the
Director finds this section less effective than the federal rules and
is not approving this section.
Finally, since our decision is based on the above, we feel it is
unnecessary to address Pennsylvania's interpretation of the federal
regulations describing termination of jurisdiction.
Section 5.5(c) (52 P.S. 1406.5e(c)). This section provides that the
Department will make an investigation of damage claims within 30 days
of receipt of the claim and, within 60 days following the
investigation, make a determination in writing whether the damage was
caused by subsidence. This section further provides that the Department
will issue a written order directing the operator to compensate the
structure owner or repair the damaged structure within six months or a
longer period. In our letter to Pennsylvania dated June 21, 1999, we
indicated that the Department's written determination made within 60
days of the investigation appears to be less effective than the citizen
complaint procedures of 30 CFR 842.12(d). The federal rule requires a
response within 10 days of the inspection. We further indicated that if
the term ``written order'' means a notice of violation, this section
does not appear to be as effective as the federal regulations in that
six months exceeds the total time allowed for abatement of a notice of
violation. ``The total time for abatement under a notice of violation,
including all extensions, shall not exceed 90 days from the date of
issuance, except upon a showing * * * [of]
one or more of the
circumstances in paragraph (f) of this section.'' 30 CFR 843.12(c).
In its response to us dated June 1, 2000, Pennsylvania wrote that:
The 60-day period the department is allotted to make a
determination cannot be compared with the 10-day period specified in
30 CFR 842.12(d). [This section]
requires PADEP to reach a final
determination within 60 days of making an investigation, where the
federal requirement only relates to communication with the
complainant * * *. There is nothing within 30 CFR 842.12(d) that
specifically requires OSM to take enforcement action within the 10-
day period. [A]lso * * * 30 CFR 842.12(d) establishes no minimum
time period in which OSM must conduct its investigation.
[[Page 67025]]
With regard to the term ``written order'' as used in this section,
Pennsylvania indicated that the term does not refer to a notice of
violation, but rather to an administrative order directing the operator
to repair or compensate the structure owner.
As noted in the finding for section 5.2(b)(2), the preamble to the
federal EPAct rules states ``existing citizen complaint procedures are
adequate and appropriate to address surface owner complaints of
subsidence damage.'' (60 FR at 16735). The proposal by Pennsylvania to
provide a claims investigation procedure for affected property owners
was carefully considered by the Director relative to the existing
requirements for addressing complaints by citizens under 30 CFR part
842. Currently, the approved Pennsylvania program regarding citizen
complaint investigations and enforcement provides that if an inspection
is made, the Department will notify the citizen within 10 days of
completion of the inspection of the results. If no inspection is made,
the Department will notify the citizen within 15 days of receipt of the
complaint. Pennsylvania's approved citizen complaint rules are
consistent with 30 CFR 842.12 and allow latitude in determining what
constitutes the point at which an inspection is complete to allow for
the collection of necessary data (see 49 FR 10253-58). As a result,
citizen complaint inspection duties could be completed prior to the 60
days specified in section 5.5(c) (52 P.S. 1406.5e(c)). Under existing
citizen complaint rules, once an inspection is completed, Pennsylvania
has 10 days to describe its enforcement action or lack thereof.
However, under the proposed provision, an inspection may occur in a
short time, e.g. two days, but Pennsylvania would have longer than 10
days to notify the citizen of its inspection results, e.g., 60 days.
This is inconsistent with Pennsylvania's existing rules and the federal
rules regarding time requirements for responding to citizen complaints.
To be consistent with the federal rules, Pennsylvania, within 10 days
of completing all the inspection duties, must notify the citizen of its
decision. Therefore, the Director is approving this portion of section
5.5(c) (52 P.S. 1406.5e(c)) to the extent that it is consistent with,
or more timely than, the citizen complaint procedures and is requiring
Pennsylvania to amend its program to the extent the time frames are
longer than the citizen complaint procedures.
Section 5.5(c) (52 P.S. 1406.5e(c)) also provides that if the
Department found that mining caused damage, it shall issue an order
directing the operator to compensate or cause repairs to be made within
six months or longer. The Director is not approving the use of an
administrative order that allows the operator six months or longer to
repair damage or compensate landowners. Federal regulations at 30 CFR
843.12(c) provide that ``The total time for abatement under a notice of
violation, including all extensions, shall not exceed 90 days from the
date of issuance, except upon a showing * * * [of]
one or more of the
circumstances in paragraph (f) of this section.'' Because the federal
rules require Pennsylvania to issue a notice of violation within an
abatement date of not more than 90 days, instead of an administrative
order with an abatement date of six months or longer, the Director is
not approving the following phrase from section 5.5(c) (52 P.S.
1406.5e(c)), `` * * * within six months or a longer period if the
department finds that the occurrence of subsidence or subsequent damage
may occur to the same building as a result of mining.'' This phrase is
not as effective as the federal regulations that call for orders with
abatement dates less than 90 days except for the circumstances noted in
section 30 CFR 843.12(c).
Finally, the Director finds that Pennsylvania's use of the term
``underground coal mining'' when making a damage determination is less
stringent than section 720 of SMCRA. SMCRA requires underground coal
mining operations to comply with requirements for damage repair or
compensation. The term ``underground coal mining operations'' is more
expansive than Pennsylvania's definition of underground mining, which
is defined at 25 Pa. Code 89.5 to be the extraction of coal. Therefore,
the Director is requiring Pennsylvania to amend this section to insure
that any written damage determinations made by PADEP will take into
account subsidence due to underground coal mining operations as
required by SMCRA.
Section 5.5(d) (52 P.S. 1406.5e(d)). This section provides that the
operator will not be liable for repairs or compensation in an amount
exceeding the cost of replacement of the damaged structure. The section
also provides that the occupants of a damaged structure shall be
entitled to additional payment for reasonable actual expenses incurred
for temporary relocation and for other actual reasonable incidental
costs agreed to by the parties or approved by the Department. Section
720(a)(1) of SMCRA provides for repair of material damage, which
``shall include rehabilitation, restoration, or replacement of the
damaged'' structure or dwelling or compensation in the full amount of
the decrease in value resulting from the subsidence. As previously
stated in section 5.4(a) (52 P.S. 1406.5d(a)), the cost of replacement
is no less stringent than section 720(a)(1) of SMCRA. There is no
federal counterpart to provisions for relocation and incidental
expenses provided for in this portion of the statute. However, because
these provisions provide additional benefits not required by the
federal regulations, the Director finds that they are not inconsistent
with the requirements of SMCRA or the federal regulations and is
approving this portion of the amendment.
Section 5.5(e) (52 P.S. 1406.5e(e)). This section requires an
operator to deposit in escrow, an amount equal to the cost of repair or
compensation if the operator appeals an order issued by the Department.
In our letter to Pennsylvania dated June 21, 1999, we indicated that
this section appears to be less effective than the federal regulations
because there is no provision, in cases where the operator has not
appealed an order of the Department, to insure that funds are available
for the repair or compensation for damage to structures and no
financial guarantees for the restoration of water supplies.
Pennsylvania responded in their letter of June 1, 2000, that
section 6(b) (52 P.S. 1406.6(b)) of BMSLCA authorizes PADEP to require
bonds of appropriate amounts to ensure the applicant's faithful
performance of mining or mining operations, in accordance with the
provisions of sections 5, 5.4, 5.5, and 5.6 (52 P.S. 1406.5, 1406.5d,
1406.5e, and 1406.5f). These requirements are in addition to the escrow
requirements of section 5.5(e) (52 P.S. 1406.5e(e)). These bonds must
be posted at the time of permit application and will be in place to
ensure the repair of any and all structure damage that occurs during
the term of the mining permit. Finally, Pennsylvania noted that the
requirements to post escrow under section 5.5(e) (52 P.S. 1406.5e(e))
functions as an additional assurance that repairs or compensation will
be provided by mine operators.
OSM agrees that the escrow requirements of section 5.5(e) (52 P.S.
1406.5e(e)) are separate from the requirements of section 6(b) (52 P.S.
1406.6(b)) of BMSLCA. Section 5.5(e) (52 P.S. 1406.5e(e)) allows an
appeal right that is found within numerous other sections of
Pennsylvania's approved program and is no less
[[Page 67026]]
effective than the federal regulations at 30 CFR 843.16 (implementing
30 CFR 840.13). The federal rules do not require an operator to place
into escrow the cost of repair or compensation before it can appeal an
order. Since an escrow account will serve to protect affected structure
owners, the Director finds this section consistent with the federal
rules and therefore, approves it.
Section 5.5(f) (52 P.S. 1406.5e(f)). This section provides for
Pennsylvania to take enforcement action if an operator fails to repair
or compensate for subsidence within six months or longer period as the
Department has established or if the operator has failed to perfect an
appeal of an order. The section further provides for payment of the
escrow deposit if an operator fails to repair or compensate for damage
after exhausting its right of appeal.
The Director has found that the escrow accounts provide a level of
protection beyond that of the federal requirements and is approving
that portion of the amendment. However, the portion of section 5.5(f)
(52 P.S.1406.5(e)(f)) allowing six months or longer to pass before the
Department takes an enforcement action is less effective than the
federal regulations at 30 CFR 843.12(c), which requires abatement of
violations within 90 days. As stated in the finding for 5.5(c) (52 P.S.
1406.5e(c)), an operator's failure to repair or compensate for
subsidence damage is a violation that must be abated within 90 days. To
ensure that Pennsylvania has the ability to enforce the necessary
requirements of EPAct consistent with 30 CFR part 843, the Director is
not approving the portion of section 5.5(f) (52 P.S. 1406.5e(f)) that
states: `` * * * within six months or longer or such period as the
department has established or fail to perfect an appeal of the
department's order directing such repair or compensation.'' Not
approving the portion of the phrase dealing with the six-month period
will remove an enforcement impediment to Pennsylvania. As noted, the
Director is also not approving language in that phrase that deals with
perfecting an appeal of the Department's orders. This phrase prevents
Pennsylvania from issuing a cessation order if an operator takes an
appeal, thus acting as a stay. This provision is not as effective as
the federal regulations at 30 CFR 843.16(b), which indicate that the
filing of an application for review and request for a hearing cannot
operate as a stay of any notice or order.
Section 5.5(g) (52 P.S. 1406.5e(g)). This section provides that,
with the exception of 5.5(f) (52 P.S. 1406.5e(f)), existence of
unresolved claims of subsidence damage shall not be used by the
Department as a basis for withholding permits from, or suspending
review of, permit applications submitted by the mine operator against
whom such claims have been made. In our letter to Pennsylvania dated
June 21, 1999, we asked Pennsylvania to clarify what is meant by the
phrase ``existence of unresolved claims.''
In response, Pennsylvania indicated that the term is self-
explanatory. Structure damage claims often take some time to be
resolved and this section simply provides that an operator is not
deemed to be in violation of its repair or compensation obligations as
long as it is, in good faith, attempting to make appropriate repairs or
pay appropriate compensation, or has posted the escrow amount necessary
to contest its liability. Finally, Pennsylvania also noted that a claim
is only an allegation, not a violation.
The Director is approving this section. The federal regulations at
30 CFR 773.12 and 773.14 prohibit the issuance of a permit if the
applicant has outstanding violations unless both the abatement period
for the notice of violation has not yet expired and the applicant has
certified in the permit application that the violation is being
satisfactorily corrected. Pennsylvania's provision is consistent with
these regulations since no violation was issued.
Section 5.6(a) (52 P.S. 1406.5f(a)). This section deals with
voluntary agreements for repair or compensation for damages to
structures caused by underground mining. In our letter of June 21,
1999, to Pennsylvania we noted that several times within this section
Pennsylvania refers to ``releases'' that could be a part of the
agreements. We asked Pennsylvania to clarify what is meant by the term
``release'' as used in this section.
In its letter to us dated June 1, 2000, Pennsylvania responded that
BMSLCA does not define release. As the term is used in section 5.6 (52
P.S. 1406.5f), it refers to a written discharge, acquittance or receipt
given in exchange for consideration as part of an agreement that
establishes the means and methods by which the mine operator will
repair or compensate for subsidence damage. Pennsylvania noted that
section 5.6(a) (52 P.S. 1406.5f(a)) recognizes that mine operators who
have fully met their statutory obligations are entitled to obtain a
release that precludes the landowner from seeking multiple recoveries
on the same claim.
The Director is approving this portion of the amendment. While
there is no direct federal counterpart to this section, agreements were
recognized in the preamble to the federal rule, so long as the
agreements did not ``negate the requirements of the Energy Policy
Act.'' 60 FR at 16735. Since this section provides that ``remedies
shall be no less than those necessary to compensate the owner of a
building for the reasonable cost of its repair,'' the Director finds
this section not inconsistent with the requirements of SMCRA and the
federal regulations.
Section 5.6(b) (52 P.S. 1406.5f(b)). This section provides that
when a voluntary agreement for repair or compensation is executed
between landowners and operators, every deed for conveyance of property
covered by the agreement must contain a recital of the agreement and
any release contained within the agreement. There is no federal
counterpart to this portion of the amendment. Since this section
provides notice of the agreement and any release, the Director finds it
not inconsistent with the requirements of SMCRA and the federal
regulations and is approving it.
Section 5.6(c) (52 P.S. 1406.5f(c)). This section provides:
The duty created by section 5.5 to repair or compensate for
subsidence damage to the buildings enumerated in section 5.4(a)
shall be the sole and exclusive remedy for such damage and shall not
be diminished by the existence of contrary provisions in deeds,
leases or agreements which relieved mine operators from such duty.
Nothing herein shall impair agreements entered into after April 27,
1966, and prior to the effective date of this section, which, for
valid consideration, provide for a waiver or release of any duty to
repair or compensate for subsidence damage. Any such waiver or
release shall only be valid with respect to damage resulting from
the mining activity contemplated by such agreement.
In our letter of June 21, 1999, to Pennsylvania we noted that this
section appears to be less effective than the federal regulations
because the post-1966 structures may have entered into an agreement
that would have provided requirements that are less effective than 30
CFR 817.121(c). OSM has determined that ``[a]n underground mining
operation has a statutory obligation to repair, which may not be
negated by a prior agreement.'' 60 FR at 16736.
In its response to us dated June 1, 2000, Pennsylvania noted that:
``Post 1966 structures'' or structures built after 4/27/66 had
no protection from subsidence damage under BMSLCA until 8/21/94, the
effective date of section 5.6. Because BMSLCA did not provide
protection to these structures, it is highly unlikely there are any
agreements providing for repair or compensation for ``post 1966
structures.'' Pre 1966 dwellings were completely protected;
[[Page 67027]]
they could not be damaged by subsidence. Post 1966 agreements for
pre 1966 dwellings would have to have provided the homeowners more
than full compensation or repairs otherwise the owner would not have
had any reason to enter into an agreement with a mine operator.
Accordingly, this provision is at least as effective as 30 CFR
817.121(c).
The Director approves the following language:
The duty created by section 5.5 to repair or compensate for
subsidence damage to the buildings enumerated in section 5.4(a)
shall be the sole and exclusive remedy for such damage and shall not
be diminished by the existence of contrary provisions in deeds,
leases or agreements which relieved mine operators from such duty.
There is no requirement in the federal rules that Pennsylvania have
a requirement in addition to the duties enumerated in sections 5.4 and
5.5 (52 P.S. 1406.5d and 1406.5e) of the BMSLCA. If Pennsylvania wishes
to eliminate any common law duties, that is within its discretion.
Accordingly, this language is not inconsistent with the requirements of
SMCRA and the federal regulations. However, the Director does not find
Pennsylvania's explanation with regard to the last two sentences of
section 5.6(c) (52 P.S. 1406.5f(c)) to be persuasive, because to do so
would render that portion of section 5.6(c) (52 P.S. 1406.5f(c))
meaningless. The Director finds that the last two sentences: ``Nothing
herein shall impair agreements entered into after April 27, 1966, and
prior to the effective date of this section, which, for valid
consideration, provide for a waiver or release of any duty to repair or
compensate for subsidence damage. Any such waiver or release shall only
be valid with respect to damage resulting from the mining activity
contemplated by such agreement'' are inconsistent with the federal
regulations at 30 CFR 817.121(c) and the Director is not approving this
portion of section 5.6(c) (52 P.S. 1406.5f(c)). While OSM recognizes
that EPAct and Act 54 are not retroactive, this language seems to
provide that private agreements entered into between April 27, 1966 and
August 21, 1994, waiving or releasing any duty to repair or compensate
for subsidence damage remain effective, including for mining activities
beyond the effective date of the protections of EPAct and Act 54, if
contemplated by the agreement. Thus, these sentences provide that
agreements made after April 1966 and before August 21, 1994, do not
have to comply with the provisions of the BMSLCA if they are written
contrary to the requirements of section 5.5 (52 P.S. 1406.5e) of
BMSLCA. Section 720(a)(1) and 30 CFR 817.121(c)(2) require repair or
compensation for affected structures. Agreements are acceptable if the
terms of the agreement meet ``the requirements under paragraph
817.121(c)(2).'' 60 FR at 16735. ``Any permittee/owner agreements
cannot negate the requirements of the EPAct to repair or compensate for
subsidence related material damage to occupied residential dwellings
and related structures as well as non-commercial buildings.'' Id. Since
this provision negates the requirements of section 5.5 (52 P.S.
1406.5e) of BMSLCA, it is inconsistent with the federal regulations.
Section 5.6(d) (52 P.S. 1406.5f(d)). This section provides that any
agreement made under section 5.6(c) (52 P.S. 1406.5f(c)) must be
included in every deed for conveyance of the property covered by the
agreement. The Director is not approving this provision to the extent
that section 5.6(c) has not been approved. Therefore, section 5.6(d)
(52 P.S. 1406.5f(d)) is inconsistent with the requirements of SMCRA and
the federal regulations to the extent that section 5.6(c) (52 P.S.
1406.5f(c)) is inconsistent.
Section 6 (52 P.S. 1406.6). This section was modified by both
removing former subsection (a) and replacing references in subsection
(b) to sections 4 and 5 with references to sections 5, 5.4, 5.5 and
5.6. The section now requires applicants to file bonds conditioned upon
the applicant's faithful performance of mining or mining operations in
accordance with sections 5, 5.4, 5.5 and 5.6. While this section
requires submission of bonds at the time of application, there is no
requirement similar to that found in 30 CFR 817.121(c)(5), which
requires an adjustment of bond amount for subsidence damage to
structures or water supplies if repair or replacement is not completed
within 90 days of occurrence of damage.
In our letter of June 21, 1999, we indicated that section 5.5(e)
(52 P.S. 1406.5e(e)), regarding establishment of escrow accounts
appears to be less effective than the federal regulations because there
is no provision in cases where the operator has not appealed an order
of the Department to insure that funds are available for the repair or
compensation for damage to structures and no financial guarantees for
the restoration of water supplies. After reviewing Pennsylvania's
response to that comment, we found that the escrow provisions of
section 5.5(e) (52 P.S. 1406.5e(e)) were separate from the requirements
of 30 CFR 817.121(c)(5) to increase the bond in response to subsidence
damage. However, by reviewing Pennsylvania's response to our comment in
section 5.5(e) (52 P.S. 1406.5e(e)), we found that section 6 was
required to be amended to include this provision.
Pennsylvania responded in their letter of June 1, 2000, that:
Section 6(b) of BMSLCA authorizes PADEP to require bonds of
appropriate amounts to ensure the applicant's faithful performance
of mining or mining operations, in accordance with the provisions of
sections 5, 5.4, 5.5, and 5.6.
These requirements are in addition to the escrow requirements of
section 5.5(e). These bonds must be posted at the time of permit
application and will be in place to ensure the repair of any and all
structure damage that occurs during the term of the mining permit.
As Pennsylvania noted, these bonds will be posted at the time of permit
application. However, it is very difficult to predict the amount of
subsidence damage that will occur to structures, therefore, it may be
necessary to raise the bond amounts after damage has occurred. There is
no provision in the Pennsylvania program that requires the state
regulatory authority to increase bonds in response to subsidence
damages that are not repaired or replaced within 90 days.
Pennsylvania's only mechanism for increasing the bond amount is if a
party in interest requests such an increase. The federal rules at 30
CFR 817.121(c)(5) require the regulatory authority to increase the
bonding amounts for the permittee. Pennsylvania's requirement places
the burden on someone other than the state to monitor the bonding
amounts. The state regulatory authority is the only appropriate entity
to determine when the bonds must be adjusted. In addition,
Pennsylvania's program fails to require a bond or a bond increase if
damage occurs to the land or water resources. The federal rule at 30
CFR 817.121(c)(5) requires an increase in the performance bond when
subsidence related material damage to land occurs, or when a protected
water supply is contaminated, diminished or interrupted. Therefore, the
Director is requiring Pennsylvania to amend its program to comply with
the provisions of 30 CFR 817.121(c)(5).
Section 9.1(a) (52 P.S. 1406.9a(a)). This section requires that if
the department determines, and notifies a mine operator, that a
proposed mining technique or extraction ratio will result in subsidence
that causes an imminent hazard to human safety, the technique or
extraction ratio will not be permitted unless the mine operator, prior
to mining, takes measures approved by the Department to eliminate the
imminent hazard.
[[Page 67028]]
Even though there is no corresponding federal regulation, the
Director is approving this section because it is consistent with 30 CFR
817.121(f), which requires the suspension of underground mining if
imminent danger to inhabitants of urbanized areas, cities, towns or
communities is found.
Section 9.1(b) (52 P.S. 1406.9a(b)). This section provides that a
mining technique or extraction ratio that the Department determines
will cause irreparable damage to buildings in section 5.4(a)(3) or (4)
(52 P.S. 1406.5d(a)(3) or (4)) will not be permitted unless the
building owner, prior to mining, consents to such mining or the mine
operator, prior to mining, agrees to take measures approved by the
Department to minimize or reduce impacts resulting from subsidence to
such buildings.
The Director finds that there is no comparable provision in the
federal regulations because the federal regulations do not discuss
irreparable damage. The irreparable damage standard for this portion of
the amendment provides a level of protection to structures threatened
with irreparable damage that is not provided for in federal
regulations. The Director is approving this portion of the amendment.
Section 9.1(c) (52 P.S. 1406.9a(c)). This section provides that
underground mining activities shall not be conducted beneath or
adjacent to public buildings and facilities, churches, schools and
hospitals, impoundments, or bodies of water with volume of 20 acre-feet
or more unless the subsidence control plan demonstrates that subsidence
will not cause material damage to, or reduce the reasonably foreseeable
use of, such facilities. The Department may limit the percentage of
coal extracted under or adjacent to these features or facilities or to
any aquifer or body of water that serves as a significant water source
for any public water supply system if it finds that it is necessary in
order to minimize the potential for material damage. The Director finds
that this portion of the amendment is no less effective than the
federal regulations at 30 CFR 817.121(d), which have substantially the
same requirements.
Section 9.1(d) (52 P.S. 1406.9a(d)). This section provides that
nothing in the act shall supersede standards related to the prevailing
hydrologic balance contained in federal SMCRA and regulations
promulgated by Pennsylvania to obtain or maintain jurisdiction over the
enforcement and administration of SMCRA or any standard contained in
Pennsylvania's Clean Streams Law. Even though there is no direct
federal counterpart, the Director is approving this section because it
does not limit or change the rights of landowners or the
responsibilities of operators as provided for in federal regulations,
nor is it inconsistent with the requirements of SMCRA and the federal
regulations.
Section 15 (52 P.S. 1406.15). This section was repealed by Act 54.
The section allowed landowners to purchase enough support coal beneath
a structure to provide protection from subsidence. There are no similar
provisions in the federal regulations. The Director is approving repeal
of this section because repealing it does not make Pennsylvania's
program less effective than the federal regulations regarding
protection of structures.
Section 17.1 (52 P.S. 1406.17a). This section lists various
conducts that are unlawful under the BMSLCA. Act 54 changed the section
by removing the phrase ``to cause land subsidence or injury'' as one of
the examples of unlawful conduct.
The Director is approving this change to the BMSLCA. The federal
rules anticipate that subsidence will occur and provide compensation
for, or repair of, damages to homes and other structures as well as
replacement of adversely affected water supplies. Subsidence in itself
is not unlawful conduct under the federal regulations.
The portion of the amendment that removes injury as unlawful
conduct is also approved. The Director finds that the portions of the
BMSLCA that require prevention of hazards to human safety and material
damage to certain buildings (section 9.1) provide a similar level of
protection from injury that the federal regulations provide. The
Director is approving the changes to section 17.1 because they are not
inconsistent with SMCRA and the federal regulations.
Section 18.1 (52 P.S. 1406.18a). This section requires the
Department to compile data in deep mine permit applications, monitoring
reports, and other data submitted by operators, and from enforcement
actions. The data are to be used to determine the effects of deep
mining on subsidence of surface structures and on water resources. A
report on the analysis of the data is to be presented to the Governor,
the General Assembly, and the Citizen's Advisory Council every five
years.
There is no direct federal counterpart to this regulation but the
Director is approving this section because it does not limit or change
the rights of landowners or the responsibilities of operators as
provided for in federal regulations nor is it inconsistent with the
requirements of SMCRA and the federal regulations.
Summary Table
The table below summarizes the Director's findings with regard to
each section of the BMSLCA.
------------------------------------------------------------------------
Sections of Act 54
that are Sections of Act 54
Sections of the BMSLCA that conditionally that are not
are approved approved or that are approved in whole or
required to be in part
amended
------------------------------------------------------------------------
Repeal of Section 4 (52 P.S. 5(b) (52 P.S. 5.1(b) (52 P.S.
1406.4)). 1406.5(b)). 1406.5a(b)).
5.1(a)(2) and (3) (52 P.S. 5.1(a)(1) (52 P.S. 5.2(b)(2) (52 P.S.
1406.5a(a)(2) and (3)). 1406.5a(a)(1)). 1406.5b(b)(2)).
5.2(a)(1), (2), and (3) (52 5.4(a) (52 P.S. 5.2(d) (52 P.S.
P.S. 1406.5b(a)(1), (2), 1406.5d(a)). 1406.5b(d)).
and (3)).
5.2(b)(1) (52 P.S. 5.5(a) (52 P.S. 5.2(e)(2) (52 P.S.
1406.5b(b)(1)). 1406.5e(a)). 1406.5b(e)(2)).
5.2(c) (52 P.S. 1406.5b(c)). 6 (52 P.S. 1406.6)). 5.2(g), (h), and (i)
(52 P.S.
1406.5b(g), (h),
and (i)).
5.2(e)(1) and (3) (52 P.S. .................... 5.3(a), (b), and (c)
1406.5b(e)(1) and (3)). (52 P.S.
1406.5c(a), (b),
and (c)).
5.2(f) (52 P.S. 1406.5b(f)). .................... 5.4(a)(3) (52 P.S.
1406.5d(a)(3)).
5.2(j) (52 P.S. 1406.5b(j)). .................... 5.4(c) (52 P.S.
1406.5d(c)).
5.2(k) (52 P.S. 1406.5b(k)). .................... 5.5 (b) and (c) (52
P.S. 1406.5e(b) and
(c)).
5.4(a)(1), (2) and (4) (52 .................... 5.5(f) (52 P.S.
P.S. 1406.5d(a)(1), (2), 1406.5e(f)).
and (4)).
5.4(b) (52 P.S. 1406.5d(b)). .................... 5.6(c) and (d) (52
P.S. 1406.5f(c) and
(d)).
[[Page 67029]]
5.5 (d), (e) and (g) (52
P.S. 1406.5e(d), (e) and
(g)).
5.6(a) and (b) (52 P.S.
1406.5f(a) and (b)).
9.1(a), (b), (c), and (d)
(52 P.S. 1406.9a (a), (b),
(c), and (d)).
Repeal of Section 15 (52
P.S. 1406.15).
17.1 (52 P.S. 1406.17a). ....................
18.1 (52 P.S. 1406.18a). ....................
------------------------------------------------------------------------
B. Changes to the Regulations at 25 Pa Code Chapter 89
Set forth in the explanation below and the table that follows,
pursuant to SMCRA and the federal regulations at 30 CFR 732.15 and
732.17, are the Director's findings concerning the amendments to the
regulations at 25 Pa. Code Chapter 89. The Director's reasons for
approving, conditionally approving, requiring amendments to, or not
approving regulations in 25 Pa. Code Chapter 89 are noted. The sections
are listed in the order they appear in Chapter 89 for easy reference.
Section 89.5, definition of the term ``de minimis cost increase.''
This definition is used in section 89.145a relating to water supply
replacement performance standards. It states an increase in the cost of
providing a restored or replaced water supply is acceptable if the
increased cost of operating the replaced or restored water supply is de
minimis. This section defines de minimis as either less than 15% of the
annual operating and maintenance costs of the previous water supply
that is restored or replaced, or is less than $60 per year. In our
letter to Pennsylvania dated June 21, 1999, we indicated that there was
no counterpart in federal regulations to this definition. However, the
preamble to the federal regulations at 60 FR 16726 provides that the
payment of replacement water supply operation and maintenance costs in
excess of premining costs is a logical aspect of the requirement to
replace a water supply. The goal of the provision is to insure that the
owner or user of the water supply is made whole, and that no additional
costs are passed on to the water supply user after the replacement
supply is installed, beyond those that are customary and reasonable for
the premining supply. We concluded that the definition appears to be
less effective than the federal regulation because it passes costs in
excess of premining costs to the landowner or water supply user.
In their June 1, 2000, response to our letter, Pennsylvania
indicated that:
The court decisions in Carlson Mining Co v. DER, EHB 91-547-E,
Gioia Coal v. DER, 1986 EHB 82, and Buffy and Landis v. DER, 1990
EHB 1665 defined what constituted an adequate replacement water
supply. These Court decisions addressed increased operation and
maintenance costs, increased maintenance, control, accessibility,
reliability and performance of the replacement water supply. The
Court found that a property owner has been made whole if the
increase in operating and maintenance costs is de minimis. The
Pennsylvania case law is codified in these regulations to facilitate
understanding of the law by water supply users and the regulated
community.
The Pennsylvania regulations, which incorporated court
determinations of what cost increases were more than de minimis and
were required to be paid by the operator are as effective as OSM's
provision requiring a permittee to ``replace any drinking, domestic
or residential water supply that is contaminated, diminished or
interrupted by underground mining activities.'' The federal
regulations do not establish any specific requirements for operating
and maintenance costs * * *
The Director is not approving the definition of de minimis cost
increase from 25 Pa. Code 89.5 because it allows some increased costs
of operating and maintaining a restored or replaced water supply system
to be passed on to the landowner or water user. Depending on the
original costs, both a 15% increase as well as a $60 increase could be
excessive. The increased costs are still beyond the intent of the
federal regulations, that ``[t]he owner or user of the water supply is
made whole, and that no additional costs are passed on to the water
supply user.'' (60 FR 16726). Only by fully subsidizing all costs
associated with the replacement or restored water supply will that
intent be realized.
Finally, OSM notes that the cases cited by PADEP were all issued
before Act 54 and EPACT was enacted (except Carlson, which was issued 5
days after EPAct's date). Accordingly, these cases could not
contemplate EPAct's requirements.
Section 89.5, definition of the term, ``dwelling.'' Pennsylvania is
proposing the definition of the term dwelling to be ``a building or
other structure that, at the time subsidence occurs, is used either
temporarily, occasionally, seasonally or permanently for human
habitation.''
This definition is the same as OSM's definition of the phrase
``occupied dwelling and structures related thereto'' found in 30 CFR
701.5, except it does not include related structures. The related
structure information is found in Pennsylvania's regulations at 25 Pa.
Code 89.5 in the definition of ``permanently affixed appurtenant
structures.'' The Director finds that Pennsylvania's definition of the
term ``dwelling'' when used in conjunction with the phrase
``permanently affixed appurtenant structure'' is no less effective than
the federal definition of ``occupied dwelling and structures related
thereto,'' so long as the limitations on the definition of
``permanently affixed appurtenant structure'' discussed later in this
rulemaking are implemented.
Section 89.5, definition of the term, ``fair market value.''
Pennsylvania's definition of fair market value is the amount at which
property would exchange hands between a willing buyer and a willing
seller, neither being under any compulsion to buy or sell and both
having reasonable knowledge of the relevant facts. The only place this
term is used in Chapter 89 is at 25 Pa. Code 89.152(a)(5)(i) with
regard to an operator's purchase of a property to gain relief from the
responsibility of water supply replacement. Because that section of the
regulations has not been approved and is not self-sustaining, there is
no need for the Pennsylvania program to contain the definition of
``fair market value.'' As a result, the Director is not approving the
definition of the term ``fair market value'' found in 25 Pa. Code 89.5.
Section 89.5, definition of the term, ``irreparable damage.''
Through its definition of ``irreparable damage,'' Pennsylvania has
created four ways in which a structure can be classified as irreparably
damaged. They include: (1) Where the cost of repair would exceed the
cost of replacement; (2) the damage is so great that its repair is
prohibited by law; (3) it is impossible or impractical to restore the
structure to its previous strength; or (4) for structures recognized as
historical or architecturally
[[Page 67030]]
significant, one of the following: the damage would adversely affect
the structures historical or architectural value, or the cost of repair
with the same craftsmanship and historically and architecturally
equivalent components exceeds the cost of replacement, or it is
impossible to repair or restore the historical and architectural value
of the structure with the same craftsmanship and historically and
architecturally-equivalent components.
There is no federal counterpart to this definition. The federal
rules define ``material damage'' at 30 CFR 701.5 as (1) Any functional
impairment; (2) any physical change that has a significant adverse
impact on the land; or (3) any significant change in the condition,
appearance or utility. Any material damage must be corrected (for
structures, the other option is compensation). Pennsylvania's
irreparable damage standard, does not contemplate correction. Thus, by
creating an irreparable damage standard, Pennsylvania has defined a
class of damage that may be more severe than the material damage
standard found in federal regulations. As discussed later, there are
certain situations, where Pennsylvania does not require protection from
material damage. However, the Director is approving the definition of
the phrase ``irreparable damage'' since it is not inconsistent with the
federal rules. The Director notes that this approval does not affect
the requirements afforded by the material damage standard found in
federal regulations.
Section 89.5, definition of the term, ``material damage.''
Pennsylvania's definition is substantially the same as and therefore no
less effective than the federal definition of material damage at 30 CFR
701.5. The Director is approving Pennsylvania's definition of the term
``material damage.''
Section 89.5, definition of the term, ``noncommercial building.''
Pennsylvania's definition is substantially the same as, and therefore
no less effective than, the federal definition of noncommercial
building at 30 CFR 701.5. The Director is approving Pennsylvania's
definition of the term ``noncommercial building.''
Section 89.5, definition of the term, ``permanently affixed
appurtenant structures.'' This term is used in conjunction with
structures listed in 25 Pa. Code 89.142a(f)(1)(i) and (iii) relating to
subsidence control performance standards. The term is defined as a
structure or facility securely attached to the land surface if that
structure or facility is adjunct to, and used in connection with,
structures listed in 25 Pa. Code 89.142a(f)(1)(i) and (iii).
In our letter to Pennsylvania dated June 21, 1999, we indicated
that the federal definition of the term ``occupied residential dwelling
and structures related thereto'' does not require that the appurtenant
structure be ``securely attached to the land.'' This is a meaningful
difference in coverage for some structures that would be set on the
surface but not readily removable, i.e., storage sheds that are not
built on a foundation but are set in place on the surface of the
ground. We asked Pennsylvania to clarify how the proposed definition
will account for damage to appurtenant structures not attached to the
land.
In their letter to us of June 1, 2000, Pennsylvania indicated that
under Pennsylvania law, those structures which are not permanently
affixed appurtenant structures would be generally classified as
improvements. Accordingly, these structures would be protected under 25
Pa. Code 89.142a(f) to the extent that they were in place on August 21,
1994, or on the date of first publication of the permit application or
permit renewal application and within the boundary of the entire mine
as depicted in the permit application. In addition, Pennsylvania noted
that structures that are not attached to the ground are less prone to
experience subsidence damage. Since these structures do not have
foundations, they are not subject to the stresses that result from
ground movement.
The Director has found that Pennsylvania's definition of
``permanently affixed appurtenant structures'' is less effective than
the federal regulations. The federal definition of the term ``occupied
residential dwelling and structures related thereto'' at 30 CFR 701.5,
lists examples of protected facilities. Pennsylvania has adopted a
similar listing of protected facilities in its definition of
``permanently affixed appurtenant structures.'' However, in that
definition, Pennsylvania requires that these facilities be ``securely
attached to the land surface.'' Pennsylvania's protection of structures
is less inclusive than the federal regulations because the federal
requirements do not require structures to be attached to the land
surface to be protected. This finding is acknowledged by Pennsylvania
in its preamble when discussing the definition of ``permanently affixed
appurtenant structures'' by stating that the definition does ``not
include all structures encompassed by the Federal definition'' and it
only includes those structures permanently affixed to the ground. 28
Pa.B. 2766.
The Director is not approving the portion of the definition that
requires structures to be ``securely attached to the land surface.''
The federal regulations (definition of the term ``occupied residential
dwelling and structures related thereto'' at 30 CFR 701.5) require
protection for structures or facilities installed on, above or below,
or a combination thereof, the land surface, if that building structure
or facility is adjunct to or used in connection with an occupied
residential dwelling. There is no requirement that such structures or
facilities be securely attached to the land surface. By protecting only
structures that are securely attached to the land surface, Pennsylvania
is creating a class of facility or structure that will not be afforded
the protections of the federal regulations.
Section 89.5, definition of the term, ``public buildings and
facilities.'' Pennsylvania defines ``public buildings and facilities'
as structures that are owned or leased and principally used by a
government agency for public business or meetings and anything built,
installed, assembled or used by a government agency to provide a public
service. Pennsylvania then listed examples of ``public buildings and
facilities.'' In the federal program ``public building'' is defined at
30 CFR 761.5 to mean any structure that is owned or leased, and
principally used by a governmental agency for public business or
meetings. Pennsylvania's definition of ``public buildings and
facilities'' includes everything in the federal definition. The
Director finds that Pennsylvania's definition of ``public buildings and
facilities'' is no less effective than the federal definition of
``public building'' and is approving the definition.
Section 89.5, definition of the term, ``public water supply
system.'' There is no corresponding federal definition to this term.
Pennsylvania defines ``public water supply system'' as a water delivery
system which does one of the following; serves at least 15 service
connections used by year-round residents or regularly serves at least
25 year-round residents, or provides water to a public building,
church, school, hospital or nursing home. Pennsylvania uses this term
several times throughout Chapter 89 of its regulations to describe
protections to public water supplies. The Director is approving this
definition because it is used to protect water supplies that are
protected by the federal regulations and it also could be used to
protect water supplies that may
[[Page 67031]]
not be protected under the federal program. Therefore the definition is
not inconsistent with the requirements of SMCRA and the federal
regulations.
Section 89.5, definition of term, ``rebuttable presumption area.''
Pennsylvania defines ``rebuttable presumption area'' in the context of
water supply replacement, to mean the area in which an operator is
presumed responsible for diminishing, contaminating or interrupting a
water supply. The area is defined by projecting a 35-degree angle from
the vertical from the outside of any area where the operator has
extracted coal from an underground mine. There is no federal
counterpart to this definition. The Director is approving the
definition because landowners and water users will benefit from the
presumption through a more rapid response by operators to their
complaints. The Director finds that this definition is not inconsistent
with the requirements of SMCRA at section 720(a)(2) and the federal
regulations at 30 CFR 817.41(j) to provide prompt replacement of
protected water supplies.
Section 89.5, definition of the terms, ``underground mining,'' and
``underground mining operations.'' Pennsylvania's definition of
``underground mining'' is the extraction of coal in an underground
mine. The federal definition of the term ``underground mining
activities'' is found at 30 CFR 701.5 and is a combination of two
parts: (a) Surface operations incident to underground extraction of
coal or in situ processing, such as construction, use, maintenance, and
reclamation of roads, above-ground repair areas, storage areas,
processing areas, shipping areas, areas upon which are sited support
facilities including hoist and ventilating ducts, areas utilized for
the disposal and storage of waste, and areas on which materials
incident to underground mining operations are placed; and (b)
Underground operations such as underground construction, operation, and
reclamation of shafts, adits, underground support facilities, in situ
processing, and underground mining, hauling, storage, and blasting.
Pennsylvania's proposed definition of ``underground mining operations''
is substantially the same as (b) of the federal definition of
``underground mining activities.'' Pennsylvania's definition of
``underground mining'' is consistent with how the term underground
mining is used in paragraph (b) of the federal definition of
``underground mining activities'' since it is an underground operation.
The Director finds that the definitions of the terms ``underground
mining'' and ``underground mining operations'' is consistent with the
federal definition of ``underground mining activities'' and is
approving both definitions.
Section 89.5, definition of the term, ``water supply.''
Pennsylvania's definition of ``water supply'' includes existing sources
of water used for domestic, commercial, industrial or recreational
purposes or for agricultural uses. It also includes supplies that serve
a public building or a noncommercial structure customarily used by the
public, including churches, schools and hospitals. This definition
differs from the federal definition of the term ``drinking, domestic or
residential water supply'' found at 30 CFR 701.5. Pennsylvania has
stated in the preamble to its regulations that ``[t]he definition of
``water supply'' includes all water supplies covered under the federal
program, including those which are used for irrigating noncommercial
gardens and noncommercial agricultural operations.'' 28 Pa.B. 2767.
The Pennsylvania term is more inclusive in that it protects
agricultural supplies, which the federal regulations do not protect
unless they are used for direct human consumption or human sanitation,
or domestic use. However, it does not appear to include the appurtenant
delivery systems of the federal definition. As stated in our finding to
section 5.1(a)(3) (52 P.S. 1406.5a(a)(3)), we expressed this concern to
Pennsylvania in our letter of June 21, 1999. Pennsylvania responded by
stating ``connections from a well or spring are permanent affixed
appurtenant structures that must be repaired by the mine operator.''
Pennsylvania went on to state that damage to a water main and its
connecting piping would be regulated under 25 Pa. Code 89.142a(g) if it
was owned by the water company. If the connecting piping was owned by
the property owner, the mine operator would be required to repair.
Additionally, Pennsylvania's proposed performance standards at 25 Pa.
Code 89.145a(f)(4) indicate that replacement of a water supply shall
include the installation of any piping, pumping equipment and treatment
equipment necessary to put the replaced water source into service. This
performance standard includes the items contemplated by the appurtenant
delivery system requirements of the federal regulations.
Therefore, based on the Pennsylvania Bulletin language,
Pennsylvania's explanation, and when used with the performance
standards of 25 Pa. Code 89.145a(f)(4), the Director finds that the
definition of ``water supply'' is no less effective than the federal
definition of ``drinking, domestic, or residential water supply'' and
is approving this portion of the amendment.
Section 89.33. This section deals with the geologic data
requirements of the permit. Pennsylvania made only two minor revisions
to this section; the nonsubstantive addition of the metric equivalent
of 200 feet (60.96 meters) after the term of ``200 feet'' in subsection
(a)(1), and the requirement that the operation plan include a
description of the coal seam thickness (to be added to subsection
(a)(1) as item (iii)). The addition of this requirement necessitated
designating former section (iii) as (iv) and designating former section
(iv) as (v). The federal rule at 30 CFR 784.20(b)(3) requires a
subsidence control plan to contain a description of seam thickness.
Therefore, this addition is no less effective than the federal
regulations and the Director is approving this portion of the
amendment.
Section 89.34. Pennsylvania has made two minor changes in this
portion of the amendment. Both are found in subsection (a)(1)(i). This
section lists the information operators must submit in their
application regarding groundwater. The first sentence of subsection (i)
formerly read, ``The results of a groundwater inventory of existing
wells, springs and other groundwater resources, providing information
on location, quality, quantity, depth to water and usage for the
proposed permit area and potentially impacted offsite areas.'' The
first sentence now reads, ``The results of a groundwater inventory of
existing wells, springs and other groundwater resources, providing
information on location, ownership, quality, quantity, depth to water
and usage for the proposed permit area and adjacent area.'' The
Director finds that the changes to this section are no less effective
than the requirements for ground water information found in the federal
regulations at 30 CFR 784.14(b)(1) since the federal rules also require
ownership information on the proposed permit and adjacent areas. The
Director is approving the changes to this section.
Section 89.35. This section involves prediction of the hydrologic
consequences of mining. The first sentence of the section was modified
by adding the phrase ``and whether underground mining activities may
result in contamination, diminution or interruption of any water
supplies within the permit or adjacent area'' to the end of the
sentence. The sentence now reads, ``The operation plan shall
[[Page 67032]]
include a prediction of the probable hydrologic consequences of the
proposed underground mining activities upon the quantity and quality of
groundwater and surface water within the proposed permit, adjacent and
general areas under seasonal flow conditions, and whether underground
mining activities may result in contamination, diminution or
interruption of any water supplies within the permit or adjacent
area.''
The federal regulations regarding this section are found at 30 CFR
784.14(e)(3)(iv). These regulations require the probable hydrologic
consequences determination to include findings on whether underground
mining activities conducted after October 24, 1992, may result in
contamination, diminution or interruption of a well or spring in
existence at the time the permit application is submitted and used for
domestic, drinking, or residential purposes within the permit or
adjacent areas. The Pennsylvania amendment requires a finding for any
water supplies within the permit or adjacent area. This would make the
Pennsylvania program more inclusive than the federal regulation, which
limits required findings for only those water supplies used for
domestic, drinking or residential purposes. Since Pennsylvania's
program would require findings for those water supplies covered by the
federal program, the Director finds this addition no less effective
than 30 CFR 784.14(e)(3)(iv) and is approving this portion of the
amendment.
Section 89.36. This section describes the information an operator
needs to submit to ensure the protection of the hydrologic balance.
Pennsylvania's amendment adds a subsection (c) to this section.
Subsection (c) states, ``The operation plan shall include a description
of the measures which will be taken to replace water supplies which are
contaminated, diminished or interrupted by underground mining
activities. An operator is not required to provide a replacement water
supply prior to mining as a condition for securing a permit.''
The federal regulations regarding information to be submitted in a
subsidence control plan are found at 30 CFR 784.20. Subsection (b)(8)
of the federal rule requires a description of the measures to be taken
in accordance with 30 CFR 817.41(j) and 817.121(c) to replace adversely
affected protected water supplies or to mitigate or remedy any
subsidence-related material damage to the land and protected
structures. Pennsylvania's regulation language is substantively
identical to and no less effective than the federal regulation with
regard to replacement of water supplies. The Director is approving this
portion of the amendment.
Section 89.67. Pennsylvania is amending subsection (b) by requiring
surface mining activities associated with an underground mine to be
conducted in a manner that minimizes damage, destruction or disruption
of services provided by oil, gas and water wells; oil, gas and coal-
slurry pipelines; railroads; electric and telephone lines; and water
and sewage lines that pass over, under or through the permit area,
unless otherwise approved by the owner of those surface facilities and
the Department. Formerly, this section applied to all underground
mining activities instead of surface mining activities associated with
an underground mine, as it now reads.
In responding to commenters who favored retention of the existing
language at 25 Pa. Code 89.67(b), Pennsylvania stated in the preamble
to the proposed regulations that:
The [Environmental Quality]
Board believes that it is
appropriate to narrow the scope of this regulation to address only
those activities which take place at surface sites associated with
an underground mine. There is sufficient authority in Chapter 89,
Subchapter F (relating to subsidence control) to regulate those
aspects of the underground mining activity which take place
underground. Together, these requirements are no less effective than
the Federal regulation in 30 CFR 817.180. (28 Pa.B. 2768)
The authority in Chapter 89, Subchapter F of the Environmental
Quality Board referred to was 25 Pa. Code 89.142a(g)(1). This section
requires underground mining to be planned and conducted in a manner
that minimizes damage, destruction or disruption in services provided
by the same utilities listed in 25 Pa. Code 89.67. As noted in the
Director's findings regarding 25 Pa. Code 89.142a(g)(1), we found that
25 Pa. Code 89.142a(g)(1) did not provide the same level of protection
for utilities that is required under the federal regulations at 30 CFR
817.180. The Director is requiring 25 Pa. Code 89.142a(g)(1) to be
amended to insure that all underground mining activities are conducted
in a manner consistent with 30 CFR 817.180. Please see the Director's
finding at 25 Pa. Code 89.142a(g)(1) for more information.
In changing the language of 25 Pa. Code 89.67(b), Pennsylvania has
limited protection to utilities from surface mining activities
associated with an underground mine where prior to the proposed
amendment, protection was extended from underground mining activities.
However, because of Pennsylvania's reliance on 25 Pa. Code
89.142a(g)(1) to make 25 Pa. Code 89.67(b) no less effective than the
federal regulations, the Director believes that the amendment required
at 25 Pa. Code 89.142a(g)(1) will serve to accomplish that goal. As a
result, the Director is approving Pennsylvania's amendment to 25 Pa.
Code 89.67(b) as not inconsistent with 30 CFR 817.180.
Section 89.141(a). Subsection (a) deals with information operators
are required to submit regarding the geology overlying the proposed
permit area. Subsection (a) formerly read, ``The application shall
include a description of the geology overlying the proposed permit
area, from the surface down to the first stratum below the coal seam to
be mined. For the same strata, a detailed description and cross-section
shall be provided from available test borings and core samples. A copy
of the information developed for 25 Pa. Code 89.33 (relating to
geology) may be submitted to meet the requirement in this subsection.''
The subsection now reads, ``The application shall include a
description of the geology overlying the proposed permit area, from the
surface down to the first stratum below the coal seam to be mined. The
description shall include geologic conditions which are relevant to the
likelihood or extent of subsidence or subsidence related damage. For
the same strata, a detailed description and cross-section shall be
provided from available test borings and core samples. A copy of the
information developed for 25 Pa. Code 89.33 (relating to geology) may
be used as appropriate to meet the requirements of this section.''
The addition of the language requiring information on geologic
conditions that are relevant to the likelihood or extent of subsidence
or subsidence related damage makes this section no less effective than
the federal regulations at 30 CFR 784.20(b)(3), which require the
subsidence control plan to include a description of the physical
conditions that affect the likelihood or extent of subsidence and
subsidence-related damage. The Director is approving this portion of
the amendment.
Section 89.141(d). This subsection requires the permit application
to include a subsidence control plan that describes the measures that
will be taken to control the subsidence effects from the proposed
underground mining. In our letter of June 21, 1999, we also indicated
that 25 Pa. Code 89.141(d) did not address the provisions of 30 CFR
784.20(b)(8) that require the subsidence control plan to contain a
description of
[[Page 67033]]
the measures to be taken to replace adversely affected protected water
supplies or to mitigate or remedy any subsidence-related material
damage to the land and protected structures.
Pennsylvania indicated in its response to us dated June 1, 2000,
that its regulations include requirements to describe the measures to
be taken to replace adversely affected protected water supplies and
mitigate subsidence-related material damage to the land and protected
structures. Requirements relating to descriptions of water supply
replacement measures are found in 25 Pa. Code 89.36(c). Descriptions of
the measures to be used to correct material damage to surface land are
required under 25 Pa. Code 89.141(d)(5). Descriptions of measures to
prevent irreparable damage to dwellings and agricultural structures are
required under 25 Pa. Code 89.141(d)(6). Requirements relating to the
protection of public buildings and other specified structures are found
in 25 Pa. Code 89.141(d)(3).
We agree with Pennsylvania that the requirements relating to
descriptions of measures to remedy contamination, diminution, or
interruption of water supplies found within 25 Pa. Code 89.36(c) and
that the descriptions to prevent material damage to surface lands found
at 25 Pa. Code 89.141(d)(5) are as effective as the requirements found
in the federal regulations. However, we have found that Pennsylvania's
amendment does not require the subsidence control plan to contain
descriptions of measures to mitigate or remedy material damage to non-
commercial buildings and residential structures as required by 30 CFR
784.20(b)(8). The Pennsylvania program discusses prevention of damage
to structures but does not discuss the measures in the subsidence
control plan to be taken once damage has occurred to structures. While
the Director is able to approve the general requirements of 25 Pa. Code
89.141(d), subsection (d)(6) is required to be amended to insure that
the subsidence control plan contains a description of measures to
mitigate or remedy material damage to all protected structures. See the
discussion at 25 Pa. Code 89.141(d)(6) for more information regarding
the required amendment.
The Director is also requiring 25 Pa. Code 89.141(d) to be amended
because of the use of the term ``underground mining.'' Please see the
combined finding regarding use of the term ``underground mining'' as
opposed to ``underground mining operations'' at the end of the
regulation section for more information.
Section 89.141(d)(2). Pennsylvania deleted all the existing wording
of subsection (d)(2) and added the following wording which requires,
``A narrative describing whether subsidence, if it is likely to occur,
could cause material damage to, or diminish the value or reasonably
foreseeable use of, any structures or could contaminate, diminish, or
interrupt water supplies.''
In our letter to Pennsylvania of June 21, 1999, we indicated that
the term ``if it is likely to occur'' is not the same as the federal
narrative requirement of 30 CFR 784.20 (a)(2) ``indicating whether
subsidence, if it occurred, could cause material damage * * *'' We
indicated that the federal term requires more information because it
would tell the public whether material damage or water loss would occur
if subsidence occurred. PADEP regulations would only tell the public
whether material damage or water loss would occur if subsidence is
likely to occur. We also stated that while 30 CFR 784.20(a)(2) requires
the narrative to take into account subsidence effects on ``renewable
resource lands,'' 25 Pa. Code 89.141(d)(2) fails to include ``renewable
resource lands.''
In its response of June 1, 2000, Pennsylvania indicated that its
regulation at 25 Pa. Code 89.141(d) requires a subsidence control plan
for all underground mines without regard to the presence of overlying
structures, water supplies or renewable resource lands or whether or
not those structures and features could suffer material damage as a
result of mine subsidence. In doing so, Pennsylvania noted that its
regulations are as effective as 30 CFR 784.20(a)(2). Through these
plans, DEP and the general public can see how planned mining interfaces
with overlying structures and features.
Pennsylvania further noted that in regard to the terminology, there
is no practical difference between the phrase ``if it is likely to
occur'' and ``if it occurred'' for the purpose of predicting the level
of damage. As a practical matter, when full extraction (either longwall
mining or pillar extraction during retreat mining) is the principal
method of mining, the applicant will always provide information about
what will happen when subsidence occurs. In addition, by requiring
descriptions of effects in areas where subsidence is ``likely to
occur,'' the Pennsylvania regulations provide information that is less
speculative. Pennsylvania noted that its regulations provide the
general public with more usable information. DEP can predict whether or
not subsidence will occur and affect these features. DEP also evaluates
the stability of underground mine workings to ensure that subsidence
will not occur in locations where it is not planned.
The Director finds that Pennsylvania's explanation is logical and
makes this portion of the amendment no less effective than the federal
provision at 30 CFR 784.20(a)(2).
Section 89.141(d)(3). This subsection requires that, for each
structure and feature, or class of structures and features, described
in 25 Pa. Code 89.142a(c) (which include public buildings and
facilities, churches, schools and hospitals, certain sized impoundments
and bodies of water, and bodies of water or aquifers which serve as a
significant source to a public water supply system), there must be a
description of the measures to be taken to ensure that subsidence will
not cause material damage to, or reduce the reasonably foreseeable uses
of, the structures or features. The federal rule at 30 CFR 784.20(b)(5)
requires for non-planned subsidence a description of measures that will
be taken to prevent or minimize subsidence and subsidence related
damage. The federal rule does not limit the descriptions to specific
structures or features, while Pennsylvania's regulation does limit the
description to specified structures and features. Therefore, the
Director finds that to the extent a description is required of some
structures and features, this section is no less effective than 30 CFR
784.20(b)(5). However, to the extent that the description is not all
inclusive (for example, dwellings, buildings accessible to the public,
and noncommercial buildings customarily used by the public would not be
included), the Director is requiring that Pennsylvania amend its
program to provide the protections of 30 CFR 784.20(b)(5).
Section 89.141(d)(4). This section provides that a subsidence
control plan must include a description of the anticipated effects of
planned subsidence, if any. The Director finds that this regulation is
substantively identical to, and no less effective than, the federal
regulation at 30 CFR 784.21(b)(6) and is approving it.
Section 89.141(d)(5). This section requires subsidence control
plans to include a description of the measures to be taken to correct
any subsidence-related material damage to the surface land. The
Director finds that this regulation is substantively identical to, and
no less effective than, the portion of the federal regulation at 30 CFR
784.21(b)(8) that requires subsidence control plans to provide a
description of measures to be taken to mitigate or remedy any
subsidence-related material
[[Page 67034]]
damage to the land. The Director is approving this portion of the
amendment.
Section 89.141(d)(6). This section requires that the subsidence
control plan include a description of measures to be taken to correct
any subsidence-related material damage to the structures enumerated in
25 Pa. Code 89.142a(f)(1)(iii)-(v), if the structure owner does not
consent to the damage. In our letter to Pennsylvania dated June 21,
1999, we indicated that the federal rules do not have an irreparable
damage standard. For occupied dwellings and non-commercial structures,
the federal rules apply a no material damage standard for non-planned
subsidence and, a minimize damage standard for planned subsidence
(unless waived by the owner) [see sections 30 CFR 784.20(b)(7),
817.121(a)(1), and 817.121(a)(2)]. Under OSM regulations for non-
planned subsidence, subsidence-related material damage must be
prevented (see 30 CFR 817.121(a)(1)) for all structures and features.
We indicated that the Pennsylvania regulations do not require the
prevention of material damage for occupied dwellings and non-commercial
structures (except those specifically protected under 25 Pa. Code
89.142a(c): public buildings and facilities, churches, schools, etc.,
which is the same as OSM's list at 30 CFR 817.121(d)).
In its response letter to us dated June 1, 2000, Pennsylvania
indicated that:
Section 817.121 does not unequivocally require permittees to
prevent material damage to occupied dwellings. It only requires
prevention of material damage to the extent technologically and
economically feasible. If prevention of material damage is not
technologically feasible, the permittee need not prevent material
damage. More importantly, the federal regulation provides that
material damage need not be prevented if it is not economically
feasible. The federal regulation clearly provides for economics to
determine whether preventive measures are employed instead of the
repair or compensation remedy. Similarly, under Pennsylvania's
regulation a permittee will prevent the material damage from
occurring if it is more cost effective than paying for repairs or
compensation. The Pennsylvania regulation is actually more effective
at protecting homes than the federal regulation, because the federal
regulation allows for economics to always be the determining factor
as to whether any damage prevention measures will be employed by the
permittee regardless of the magnitude of damage. The Pennsylvania
regulation prohibits economics from being the determinative factor
if subsidence will cause irreparable damage. If Pennsylvania
determines that the proposed mining will result in irreparable
damage to occupied dwellings and appurtenant structures or
agricultural structures, it will notify the operator that the
proposed mining will not be allowed to occur unless the structure
owner consents to the damage or the mine operator agrees to take
surface measures to minimize or reduce the level of expected damage.
See section 89.141(d)(6) and section 89.142a(d).
The federal regulation at 30 CFR 784.20(b)(5) requires a
description of the measures to prevent or minimize subsidence damage to
structures. The federal regulation at 30 CFR 784.20(b)(7) requires
that, with certain exceptions, when planned subsidence is projected to
be used, the subsidence control plan is to contain a description of the
methods to be employed to minimize damage from subsidence to non-
commercial buildings and occupied residential dwellings. Neither the
Pennsylvania statute nor the Pennsylvania regulations state the
requirement that an operator must prevent and/or minimize for material
damage to occupied residential dwellings and community or institutional
buildings not included in 25 Pa. Code 89.141(d)(3) (see Pennsylvania's
response to section 9.1(b) and 28 Pa.B. 2768, ``[d]wellings * * * are
protected against irreparable damage but not against lesser levels of
damage.'').
The Director is approving 25 Pa. Code 89.141(d)(6) to the extent
that it provides a description of measures to prevent irreparable
damage. However, to the extent the damage to occupied residential
dwellings and structures related thereto and community or institutional
buildings are not protected in 25 Pa. Code 89.141(d)(3) and they are
materially damaged but not irreparably damaged, the Director is
requiring Pennsylvania to amend 25 Pa. Code 89.141(d)(6) to insure that
the requirements of 30 CFR 784.20(b)(5) and (b)(7) are met.
Section 89.141(d)(7). This section requires subsidence control
plans to contain a description of the monitoring, if any, the operator
will perform to determine the occurrence and extent of subsidence so
that, when appropriate, other measures can be taken to prevent, reduce
or correct damage.
The Director is approving this portion of the amendment because it
is no less effective than 30 CFR 784.20(b)(4), which requires the
subsidence control plans to contain a description of monitoring needed
to determine the commencement and degree of subsidence so that measures
can be taken to prevent, reduce or correct material damage.
Section 89.141(d)(8). This section requires subsidence control
plans to contain a description of the measures to be taken to maximize
mine stability and maintain the value and reasonably foreseeable use of
the surface land.
There is no federal regulation that directly corresponds to this
provision. The Director is approving this section because its purpose
is in keeping with the federal requirements that a permittee adopt
measures that will maximize mine stability and maintain the value and
reasonably foreseeable use of surface lands found in 30 CFR
817.121(a)(1). Additionally, the information required in the subsidence
control plan by 25 Pa. Code 89.141(d)(8) is consistent with the federal
regulation at 30 CFR 784.20(b)(9), which allows the regulatory
authority to require information to demonstrate that the operation will
be conducted in accordance with 30 CFR 817.121.
Section 89.141(d)(9). Under this subsection, Pennsylvania requires
a description of measures, and discussion of the effectiveness of such
measures, that will be taken to maintain the value and foreseeable uses
of perennial streams that may be impacted by underground mining. The
Director is approving this section because it provides information
similar to that in previously approved 25 Pa. Code 89.141(d)(2), which
required a discussion of perennial streams based on 25 Pa. Code
89.143(d)(1). Section 89.141(d)(9) is also consistent with the
requirements of 30 CFR 784.20(b)(8), which calls for the permit
subsidence control plan to contain a description of the measures to be
taken to mitigate any subsidence-related material damage to the land
(including perennial streams). However, the Director is requiring this
section to be amended because of the use of the term ``underground
mining.'' Please see the combined finding regarding use of the term
``underground mining'' as opposed to ``underground mining operations''
at the end of the regulation section for more information.
Section 89.141(d)(10). This section requires the subsidence control
plan to include a description of the measures to be taken to prevent
material damage to perennial streams and aquifers that serve as a
significant source to a public water supply system. The Director is
approving this section because it provides information similar to that
in previously approved 25 Pa. Code 89.141(d)(2), which required a
discussion regarding the protection of perennial streams and aquifers
that serve as a significant source to a public water supply system
based on 25 Pa. Code 89.143(b). The Director also finds 25 Pa. Code
89.141(d)(10) is consistent with the requirements of 30 CFR
[[Page 67035]]
817.121(d), which calls for the protection of any aquifer or body of
water that serves as a significant water source for a public water
supply system.
Section 89.141(d)(11). This section requires subsidence control
plans to include a description of utilities and a description of the
measures to be taken to minimize damage, destruction, or disruption of
utility service. There is no federal regulation that corresponds
directly to this portion of Pennsylvania's program. However, it is
consistent with 30 CFR 817.180, which requires that all underground
mining activities must be conducted in a manner that minimizes damage,
destruction or disruption of services provided by wells, pipelines,
railroads, electric and telephone lines, and water and sewage lines. It
is also consistent with 30 CFR 784.20(b)(9), which requires subsidence
control plans to contain information specified by the regulatory
authority necessary to demonstrate that the operation will be conducted
in accordance with 30 CFR 817.121. The Director is approving this
section.
Section 89.142. Pennsylvania is deleting this entire section that
required a permittee to submit a general mine map and a six-month map.
These provisions have been moved, with some modifications, to 25 Pa.
Code 89.154. The modifications include removal of reference to
structures in place as of April 27, 1966. Pennsylvania replaced those
provisions with requirements that mine maps include the structures
listed in 25 Pa. Code 89.142a(f)(1)(i)-(iv) as well as dwellings,
public buildings and facilities, churches, schools, and hospitals. The
Director is approving the deletion of 25 Pa. Code 89.142 because the
deletion of references to April 27, 1966, provides protections no less
effective than those found in the federal regulations and because the
remaining provisions of 25 Pa. Code 89.142 can be found in 25 Pa. Code
89.154.
Section 89.142a(a). This section requires underground mining to be
planned and conducted in accordance with requirements found in
subsections (1) through (4). The Director is requiring this section to
be amended because of the use of the term ``underground mining.''
Please see the combined finding regarding use of the term ``underground
mining'' as opposed to ``underground mining operations'' at the end of
the regulation section for more information.
Section 89.142a(a)(1). This section requires underground mining to
be planned and conducted in accordance with the subsidence control plan
and the postmining land use requirements in 25 Pa. Code 89.88. There is
no direct counterpart in federal regulations to this section. The
Director is approving 25 Pa. Code 89.142a(a)(1) because it is
consistent with the requirements of 30 CFR 784.20(b), which requires
subsidence control plans as part of the permit application if premining
surveys show that subsidence damage would occur and 30 CFR 773.11,
which requires permits for operators to engage in mining operations.
Section 89.142a(a)(2). This section requires underground mining to
be planned and conducted in accordance with the performance standards
in subsections (b)-(j). There is no direct federal counterpart to this
section. The Director is approving this section because it is
consistent with the requirements of 30 CFR 817.121, which provide the
subsidence control performance standards to be followed when conducting
underground mining.
Section 89.142a(a)(3). This section provides that underground
mining will not be authorized beneath structures where the depth of
overburden is less than 100 feet unless the subsidence control plans
demonstrate that the mine workings will be stable and that overlying
structures will not suffer irreparable damage. There is no direct
federal counterpart. The Director is approving this portion of the
amendment because it is consistent with the federal regulation at 30
CFR 817.121(a)(1) that requires permittees to adopt measures consistent
with known technology that prevent subsidence from causing material
damage, maximize mine stability and maintain the value and reasonably
foreseeable use of surface lands.
Section 89.142a(a)(4). This section requires mine operators to
adopt measures to maximize mine stability. This section also states
that it does not prohibit planned subsidence or room and pillar mining.
Section 817.121(a)(1) of the federal rules requires operators to
maximize mine stability. Additionally, Sec. 720(a)(2) of SMCRA states
that nothing in Sec. 720 of SMCRA shall prohibit underground coal
mining operations. Therefore, this provision is not inconsistent with
the requirements of SMCRA and the federal regulations and the Director
is approving it.
Section 89.142a(b). This section lists the requirements for
conducting surveys of protected structures and the conditions that
relieve an operator from conducting a survey. As noted in the December
22, 1999, Federal Register (64 FR 71652), OSM suspended the portion of
30 CFR 784.20(a)(3) that required a specific structural condition
survey of all EPAct protected structures. We suspended this regulation
to make our rules consistent with a decision of the U.S. Court of
Appeals for the District of Columbia Circuit [National Mining
Association v. Babbitt, 173 F.3d 906 (1999)]. However, state regulatory
authorities have the option of retaining the premining surveys.
Pennsylvania has not indicated that it wishes to eliminate the survey
requirements. Since there is no federal counterpart and because the
survey will provide additional information to the regulatory authority,
the Director is approving 25 Pa. Code 89.142a(b) and the related
subsections (b)(1)(i)-(v) and (b)(2)(i)-(iii). This section is not
inconsistent with the requirements of SMCRA and the federal
regulations. The Director does note that Pennsylvania may be required
to submit a program amendment to conform with any future federal rules
regarding structure surveys.
Section 89.142a(c)(1). This section provides that no underground
mining shall be conducted beneath or adjacent to public buildings and
facilities, churches, schools and hospitals, impoundments with a
storage capacity of 20 acre-feet (2.47 hectare-meters) or more, or
bodies of water or aquifers that serve as significant sources to public
water supply systems unless the subsidence control plan demonstrates
that subsidence will not cause material damage to, or reduce the
foreseeable use of, the structures. This provision is similar to
section 9.1(c) (52 P.S. 1406.9a(c)) of the BMSLCA that the Director
approved. However, there is a difference in the language between
Pennsylvania's statute and its regulation. The regulation only
restricts underground mining beneath or adjacent to the listed
facilities, while the statute restricts underground mining activities
beneath or adjacent to the listed facilities. This is significant
because the federal regulations (as noted in the definition of
underground mining activities at 30 CFR 701.5) restrict surface
operations incident to underground extraction of coal or in situ
processing, such as construction, use, maintenance, and reclamation of
roads, above-ground repair areas, storage areas, processing areas,
shipping areas, areas upon which are sited support facilities including
hoist and ventilating ducts, areas utilized for the disposal and
storage of waste, and areas on which materials incident to underground
mining operations are placed. The Pennsylvania regulation would
restrict only underground mining which is defined in the Pennsylvania
regulations
[[Page 67036]]
at 25 Pa. Code 89.5 as the extraction of coal in an underground mine.
However, the Director is approving this section of the regulations
because the statutory language of section 9.1(c) (52 P.S. 1406.9a(c))
of the BMSLCA is controlling over the conflicting language of the
regulation. Accordingly, the Director finds that 25 Pa. Code
89.142a(c)(1), when read in conjunction with section 9.1(c) (52 P.S.
1406.9a(c)) of the BMSLCA, is no less effective than the federal
regulations at 30 CFR 817.121(d).
Section 89.142a(c)(2)(i)-(v). This section lists the measures to be
adopted by the operator to comply with 25 Pa. Code 89.142a(c)(1). The
requirements include limiting the percentage of coal extracted,
specifications on the size and configuration of the support area,
backfilling or backstowing of voids, leaving areas in which no coal
extraction will occur, and initiating a monitoring program to detect
surface movement. The Director is approving subsections
89.142a(c)(2)(i) (A)-(D), (ii), (iii), (iv), and (v) because these
requirements are substantively the same or no less effective than the
federal requirements at 30 CFR 784.20(b)(5).
Section 89.142a(c)(2)(vi). This subsection requires a monitoring
program to detect surface movement resulting from underground mining.
The monitors are to be placed sufficiently in advance of the
underground mining so that it can be stopped before protected
structures or features are damaged.
In our letter to Pennsylvania of June 21, 1999, we indicated that
this section appears to be less effective than the federal regulations
because it does not require monitoring in conformance with 30 CFR
784.20(b)(4) of occupied dwellings, non-commercial structures and
surface lands.
In its response of June 1, 2000, Pennsylvania indicated that:
30 CFR 784.20(b)(4) provides that an application shall contain a
description of the monitoring, if any, needed to determine the
extent of subsidence that may occur so that appropriate mitigation
measures can be implemented. It does not, as OSM suggests in its
comment, ``require'' monitoring. In any event, section
89.142a(c)(2)(vi) was not intended to implement the provisions of
Sec. 784.20(b)(4). Instead, section 89.141(d)(7) (which virtually
mirrors the federal regulation) is designed to do so. Clearly,
section 89.141(d)(7) is as effective as Sec. 784.20(b)(4) in regard
to the monitoring of occupied dwellings, noncommercial structures
and surface land.
There is no direct counterpart in federal regulations to this
section. The Director agrees with Pennsylvania's explanation and is
approving this section with regard to the monitoring program because
the monitoring required will help operators and Pennsylvania to
determine if subsidence is likely to affect protected structures and
features and is consistent with the federal regulations in providing
protection to those structures or features.
Section 89.142a(c)(3). This subsection states that if the measures
implemented by the operator cause material damage or reduce the
reasonably foreseeable use of structures or features listed in
paragraph (1), the department will impose additional measures to
minimize the potential for these effects. In our letter to Pennsylvania
dated June 21, 1999, we indicated that the federal rule at 30 CFR
817.121(e) states that if there is material subsidence damage to
structures listed in 30 CFR 817.121(d), then the regulatory authority
may suspend mining under or adjacent to such structures or facilities
until the subsidence control plan is modified to ensure prevention of
further material damage. Section 30 CFR 784.20(b)(4) requires the
subsidence control plan to contain, ``A description of the monitoring,
if any, needed to determine the commencement and degree of subsidence
so that, when appropriate, other measures can be taken to prevent,
reduce or correct material damage in accordance with Sec. 817.121(c) of
this chapter.'' When taken together, the EPAct sections mean that the
prevention of material damage (and not ``minimize the potential'')
standard is in place. We further indicated to Pennsylvania that this
section appears to be less effective than the federal regulations
because it does not include the option for Pennsylvania to suspend
mining or have the subsidence control plan modified to ensure
prevention of further material damage.
In its response to us of June 1, 2000, Pennsylvania indicated that:
OSM has intertwined various regulatory sections resulting in a
misinterpretation of the federal regulations to assert a standard
that does not exist and is not supported by the federal regulations.
Although the language of section 89.142a(c)(3) differs somewhat from
that of 30 CFR 817.121(e), the intended result is the same--
increased protection of public buildings, etc. that are susceptible
to damage by mine subsidence. Therefore, the Pennsylvania regulation
is as effective as the federal regulation. In order for the
provisions of section 89.142a(c)(3) to come into play, the measures
previously proposed by the operator and approved by DEP must have
failed to adequately protect one or more of the structures or
features listed in paragraph (c)(1). At that point it is necessary
to impose additional restrictions or require additional protective
measures to ensure that other protected structures or features will
not be materially damaged by subsidence. Since it could be argued
that the failed measures were designed to ``prevent material
damage,'' a new standard providing greater protection must be
targeted. In setting this standard, DEP chose the phrase ``minimize
the potential for these effects'' to clarify that new measures must
be proposed and that these measures must be sufficient to further
reduce the likelihood of effects similar to those observed.
OSM agrees with Pennsylvania that 25 Pa. Code 89.142a(c)(3) and 30
CFR 817.121(e) increase protection of the structures and surface
features at 25 Pa. Code 89.142a(c)(1) and 30 CFR 817.121(d),
respectively. However, 30 CFR 817.121(e) imposes on the regulatory
authority the obligation to require permittees to modify subsidence
control plans to ensure the prevention of further material damage in
the cases where the initial plan or operator's actions fail. In
addition, 30 CFR 817.121(e) provides the authority to suspend mining
until such a plan is approved. Pennsylvania's response to OSM did not
establish that the regulations at 25 Pa. Code 89.142a(c)(3) allow
Pennsylvania the discretion to suspend mining until the operator's
subsidence control plan ensures the prevention of further material
damage. Pennsylvania's regulation merely requires additional measures
to minimize the effects, but does not give Pennsylvania the option to
stop the mining until Pennsylvania reviews the additional measures and
determines that the measures will minimize the effects. The Director is
requiring Pennsylvania to amend its regulations to address the
requirement.
Section 89.142a(d). This section provides that if the Department
determines and notifies a mine operator that a proposed mining
technique or extraction ratio will result in irreparable damage to a
structure in subsection (f)(1)(iii)-(v), the operator may not use the
technique or extraction ratio unless the building owner, prior to
mining, consents to the mining or the operator, prior to mining, takes
measures approved by the Department to minimize or reduce the impacts
resulting from subsidence to these structures. The federal regulations
at 30 CFR 817.121(a) require that operations, depending on the type,
must either prevent or minimize material damage to occupied residential
dwellings and community or institutional buildings. The federal
regulations do not provide for an irreparable damage standard. As a
result, the provisions of this section are no less effective than the
federal regulations regarding structures in danger of being irreparably
damaged,
[[Page 67037]]
but it is less effective in regard to structures that may be materially
damaged because it provides no protection for those structures. While
this section can be approved for structures in danger of being
irreparably damaged, the Director is requiring Pennsylvania to amend
its program to insure that structures in danger of being materially
damaged are protected also.
Section 89.142a(e). This section requires operators to correct
material damage to surface lands resulting from subsidence to the
extent technologically and economically feasible. In our letter of June
21, 1999, to Pennsylvania we noted that this section did not require,
as 30 CFR 817.121(c)(1) does, the permittee to restore the land ``to a
condition capable of maintaining the value and reasonably foreseeable
uses that it was capable of supporting before subsidence damage.''
In its response to us of June 1, 2000, Pennsylvania stated that the
operator is required to correct material damage as defined by 25 Pa.
Code 89.5 and that since the definition of ``material'' includes those
components required in 30 CFR 817.121(c)(1), when 25 Pa. Code
89.142a(e) is read in conjunction with 25 Pa. Code 89.5, it is as
effective as 30 CFR 817.121(c)(1).
The Director agrees with Pennsylvania's interpretation and is
approving this section because when it is read in conjunction with 25
Pa. Code 89.5, it is no less effective than 30 CFR 817.121(c)(1)
regarding correction of material damage to surface lands.
Section 89.142a(f)(1). This section requires correction of damage
to protected structures from underground mining conducted on or after
August 21, 1994. The federal regulations at 30 CFR 817.121(c)(1) and
(2) state that the permittee must correct any material damage resulting
from subsidence caused to surface lands or structures. Pennsylvania's
definition of underground mining only relates to extraction of coal,
therefore subsidence from other underground mining activities (such as
underground construction, operation and reclamation of shafts, adits,
underground support facilities, in situ processing, and underground
hauling, storage, and blasting) would not be covered. As a result, this
portion of the amendment is less inclusive than the federal regulations
that require repair of structures damaged by subsidence. The Director
is requiring Pennsylvania to amend this section to insure that
protected structures damaged by subsidence are repaired. Please see the
combined finding regarding use of the term ``underground mining'' as
opposed to ``underground mining operations'' at the end of the
regulation section for more information.
Additionally, this section is not as effective as 30 CFR
817.121(c), which requires permittees to promptly repair or compensate
owners for material damage caused by subsidence. Section 89.142a(f)(1)
does not contain any standard requiring operators to show a diligent
and timely effort in repairing structures or compensating landowners
for subsidence damage. For further information on the standard
requiring prompt repair or compensation, see the Director's decision on
section 5.4 of the BMSLCA. The Director is requiring this section to be
amended to be no less effective than 30 CFR 817.121(c) in requiring
prompt repair or compensation to landowners.
Section 89.142a(f)(1)(i) and (ii). These sections list the type of
structures that operators are responsible for repairing or providing
compensation for damages to landowners when underground mining causes
subsidence damage. Subsections (i) and (ii) are nearly identical to the
statutory sections of 5.4(a)(1) and (a)(2). Therefore, the findings for
5.4(a)(1) and (a)(2) are incorporated herein by reference and the
Director is approving subsection (i) and (ii).
Section 89.142a(f)(1)(iii). This section provides for compensation
for damage to dwellings that are used for human habitation and
permanently affixed appurtenant structures or improvements in place on
August 21, 1994, or on the date of first publication of the application
for a coal mining activity permit or a 5-year renewal thereof for the
operations in question and within the boundary of the entire mine as
depicted in the application. This section is similar to section
5.4(a)(3) of the BMSLCA. In section 5.4(a)(3) the Director did not
approve the language `` * * * in place on the effective date of this
section or on the date of first publication of the application for a
Mine Activity Permit or a five-year renewal thereof for the operations
in question and within the boundary of the entire mine as depicted in
said application.'' For the same reasons, the Director is not approving
the language, `` * * * or on the date of first publication of the
application for a coal mining activity permit or a 5-year renewal
thereof for the operations in question and within the boundary of the
entire mine as depicted in the application,'' from 25 Pa. Code
89.142a(f)(1)(iii).
Section 89.142a(f)(1)(iv) and (v). These sections address
agricultural structures that are protected under Pennsylvania's
program. Pursuant to 30 CFR 817.121(c)(3), repair or compensation for
material damage to agricultural structures is required to the extent
allowed under state law. The Director is approving these sections
because they protect structures not covered under federal regulations
and they are consistent with 30 CFR 817.121(c)(3).
Section 89.142a(f)(2)(i). This section provides for compensation to
landowners for subsidence damages to structures rather than repair. The
federal regulations require the compensation to be in the full amount
of the decrease in value of the structure resulting from the
subsidence. Pennsylvania's amendment provides that compensation is to
be equal to the reasonable cost of repairing the structure or if the
structure is determined to be irreparably damaged, the compensation
shall be equal to the reasonable cost of its replacement. These
standards for compensation are the same as those in 5.4(a) (52 P.S.
1406.5d(a)) of BMSLCA. Therefore, the finding for 5.4(a) (52 P.S.
1406.5d(a)) is incorporated herein by reference and the Director is
approving this portion of the regulation.
The Pennsylvania amendment also discusses damage to agricultural
structures. Pursuant to 30 CFR 817.121(c)(3), repair or compensation
for material damage to agricultural structures is required to the
extent allowed under state law. The Director is approving this portion
of the amendment because it provides for protection for structures that
are not protected under the federal regulations and is consistent with
30 CFR 817.121(c)(3).
However, the Director is requiring this section to be amended
because of the use of the term ``underground mining.'' Please see the
combined finding regarding use of the term ``underground mining'' as
opposed to ``underground mining operations'' at the end of the
regulation section for more information.
Section 89.142a(f)(2)(ii). This section provides for operators to
compensate occupants of covered structures for payment of reasonable,
actual expenses incurred during temporary relocation. The section
further provides that the operator shall also compensate the occupants
for other actual reasonable incidental costs agreed to by the parties
or approved by the Department.
There is no direct federal counterpart for this regulation. This
portion of the amendment affords a benefit to occupants of subsidence-
damaged structures that goes beyond the protections in the federal
regulations. The Director finds that the section is not inconsistent
with the requirements of
[[Page 67038]]
SMCRA and the federal regulations and is approving it.
Section 89.142a(g)(1). Subsection (1) provides that underground
mining must be planned and conducted in a manner that minimizes damage,
destruction or disruption in services provided by utilities.
Underground mining is defined in Pennsylvania's regulations as the
extraction of coal in an underground mine. The federal rule at 30 CFR
817.180 requires that all underground mining activities, not just
underground mining, must be planned and conducted in a manner that
minimizes damage, destruction or disruption in services provided by
utilities. The federal definition of underground mining activities is a
combination of two parts. The first includes surface operations
incident to underground extraction of coal or in situ processing, such
as construction, use, maintenance, are reclamation of roads, above-
ground repair areas, storage areas, processing areas, shipping areas
upon which are sited support facilities including hoist and ventilation
ducts, areas utilized for the disposal and storage of waste, and areas
on which materials incident to underground mining are placed. The
second part includes underground operations such as underground
construction, operation and reclamation of shafts, adits, underground
support facilities, in situ processing, and underground mining,
hauling, storage, and blasting. Thus, the federal rule is more
inclusive of the activities that must be conducted in a manner that
minimizes damage, destruction or disruption in services.
The Director is approving this section to the extent that
underground mining must be planned and conducted in a manner that
minimizes damage, destruction or disruption to utilities. However, the
Director is requiring Pennsylvania to amend its program to require all
underground mining activities be conducted in a manner consistent with
30 CFR 817.180.
Section 89.142a(g)(2). Subsection (2) provides a list of measures
an operator may take to minimize damage, destruction or disruption in
services from utilities listed in 25 Pa. Code 89.142a(g)(1). There is
no direct federal counterpart to this regulation. The Director is
approving this section because it lists specific measures operators may
implement to insure that utilities can continue to provide their
services. These measures are not inconsistent with the requirements of
SMCRA and the federal regulations.
Section 89.142a(g)(3). This section provides that a mine owner
shall take measures to minimize damage to customer-owned gas and water
service connections. In our letter of June 21, 1999, we noted that
since customer-owned gas and water service connections are part of a
residential dwelling (see definition of ``permanently affixed
appurtenant structures'' at 25 Pa. Code 89.5), Pennsylvania should
require the prevention of subsidence from causing material damage to
the extent feasible for non-planned subsidence and minimize, repair and
compensate for planned subsidence.
In its response to us of June 1, 2000, Pennsylvania noted:
Under Pennsylvania's program a mine operator must either remove
enough coal to induce planned subsidence or leave support that will
maximize mine stability. If mining will result in planned
subsidence, a mine operator is required to take measures to minimize
damage to customer-owned gas and water service connections, unless
the property owner does not consent to allow the measure to be
taken. If mining will not result in planned subsidence, the workings
must be designed to remain stable in accordance with section
89.142a(a)(4), thereby precluding material damage that would result
from unplanned subsidence.
The Director is approving this portion of the amendment. The
federal rule at 30 CFR 817.121 requires the permittee to prevent (to
the extent it is technologically and economically feasible) damage when
the mining does not result in unplanned subsidence. The federal rule at
30 CFR 817.121(a)(2) requires minimization of subsidence damage for
occupied residential dwellings and structures related thereto, which by
definition includes utilities. The exception to this minimization
requirement is if the permittee has the written consent of the owner.
Since 25 Pa. Code 89.142a(a)(4) prohibits material damage whenever
there is unplanned subsidence and 25 Pa. Code 89.142a(g)(3) requires an
operator to minimize damage to customer utility connections unless the
owner prohibits such measures, these sections together protect
customer-owned gas and water service connections to the extent required
by the federal regulations and are no less effective than the federal
regulations.
Section 89.142a(g)(4). This section requires the Department to
suspend or restrict underground mining if it determines that mining
beneath or adjacent to a utility will present an imminent hazard to
human safety. In our letter to Pennsylvania of June 21, 1999, we
indicated that the federal rules at 30 CFR 817.121(f) do not have the
option of restricting underground mining but provide only for
suspension of underground mining activities in imminent hazard
situations. While the federal regulations require suspension of
underground mining beneath or adjacent to a utility if it presents an
imminent hazard to human safety, the Pennsylvania rules would allow the
Department to restrict mining in this situation. The term ``restrict''
denotes that mining, in some fashion, could continue. By providing the
option to allow mining to continue, this section appears to be less
effective than the federal regulations.
In its response to us of June 1, 2000, Pennsylvania indicated that
in writing its regulations, PADEP decided to use the term ``restrict''
rather than the term ``suspend'' in describing the appropriate action
to be taken when an imminent hazard is recognized. The term
``restrict'' can be applied to limit the percentage of coal extracted
where there is a need to prevent subsidence that would, in turn, give
rise to a hazardous situation. The term ``restrict'' can also be
applied to prevent mining from encroaching into a specified area or
delay mining until damage prevention measures are taken at the land
surface. By contrast, the term ``suspend,'' as defined by Webster's
Dictionary, only seems to imply a temporary cessation of mining. PADEP
believes its choice of terms more clearly indicates there must be a
final outcome in which there is no imminent hazard to human safety
resulting from mining. Irrespective of the term used, PADEP believes
that both the Pennsylvania and the federal regulation are applied in
the same manner to prevent imminent hazards to human safety.
Based on Pennsylvania's interpretation of the word ``restrict,''
the Director is approving this regulation. In effect, this would give
Pennsylvania authority to suspend operations when necessary. In this
manner, the Pennsylvania program will be no less effective than the
federal program with regard to suspension of operations that could
involve imminent harm situations.
Section 89.142a(h)(1) and (2). Section 89.142a(h)(1) formerly
appeared at 25 Pa. Code 89.143(d)(1). Section 89.143(d)(1) was deleted
by this amendment and its provisions moved, with some modification, to
25 Pa. Code 89.142a(h)(1). The provision read, prior to deletion,
``[U]nderground mining activities shall be planned and conducted in a
manner which maintains the value and reasonably foreseeable uses of
perennial streams, such as aquatic life, water supply and recreation,
as they existed prior to mining beneath streams.'' The provision
[[Page 67039]]
at 25 Pa. Code 89.142a(h)(1) deletes the word ``activities'' and
changes ``mining beneath streams'' to ``coal extraction beneath
streams.''
Section 89.142a(h)(2) formerly appeared at 25 Pa. Code
89.143(d)(3). Section 89.143(d)(3) was deleted by this amendment and
its provisions moved, with some modifications, to 25 Pa. Code
89.142a(h)(2). The provision read, prior to deletion, ``[I]f the
Department finds that the measures have adversely affected a perennial
stream, the operator shall meet the requirements of [section]
89.145(a)
(relating to surface owner protection) and file revised plans or other
data to demonstrate that future activities will meet the requirements
of paragraph (1).'' The section now reads, ``[I]f the Department finds
that underground mining has adversely affected a perennial stream, the
operator shall mitigate the adverse effects to the extent
technologically and economically feasible, and, if necessary, file
revised plans or other data to demonstrate that future underground
mining will meet the requirements of paragraph (1).'' As can be seen,
there are two changes to this section: (1) the revised regulation
defines the operator's responsibility to mitigate adverse effects to
perennial streams to the extent technologically and economically
feasible, and (2) substituting the phrase ``underground mining'' for
``future activities.''
The Director is approving the change in 25 Pa. Code 89.142a(h)(2)
regarding the operator's responsibility to mitigate adverse effects to
perennial streams. Under federal requirements, perennial streams are a
component of surface lands and are regulated relative to planned and
unplanned subsidence. See 60 FR at 16725. For unplanned subsidence (30
CFR 784.20(b)(5)), permittees must take measures on the surface to
prevent or minimize material damage or diminution in value of the
surface. For planned subsidence, material damage does not have to be
prevented; however, the permittee must correct any material damage
resulting from subsidence caused to surface lands, to the extent
technologically and economically feasible, by restoring the land to a
condition capable of maintaining the value and reasonably foreseeable
uses that it was capable of supporting before subsidence damage
(817.121(c)(1)). Since 25 Pa. Code 89.142a(h) requires underground
mining to be planned and conducted in a manner that maintains the value
and reasonably foreseeable use of perennial streams and for adverse
effects to be mitigated to the extent technologically and economically
feasible, the Director is approving this portion of the amendment
because it is no less effective than the requirements at 30 CFR
Secs. 784.20(b)(5), 784.20(b)(8) and 817.121(c)(1).
However, the Director is requiring both subsections (h)(1) and
(h)(2) to be amended because of the use of the term ``underground
mining.'' Please see the combined finding regarding use of the term
``underground mining'' as opposed to ``underground mining operations''
at the end of the regulation section for more information.
Section 89.142a(i). This section provides situations where the
Department will suspend underground mining if the operations present an
imminent danger to the public. Pennsylvania's regulations are no less
stringent than Sec. 516(c) of SMCRA and 30 CFR 817.121(f) since they
both require the suspension of underground mining under urbanized
areas, cities, towns, and communities and adjacent to industrial or
commercial buildings, major impoundments, or perennial streams. In
addition, Pennsylvania extends the same protection to lined solid and
hazardous waste disposal areas. However, the Director is requiring
subsection (1) to be amended because of the use of the term
``underground mining.'' Please see the combined finding regarding use
of the term ``underground mining'' as opposed to ``underground mining
operations'' at the end of the regulation section for more information.
Section 89.142a(j). This section provides that underground mining
is prohibited under an area that is not included within a subsidence
control plan that has been submitted and approved by the Department.
There is no direct corresponding federal regulation to this section.
The Director is approving this portion of the amendment because it is
not inconsistent with the federal regulations at 30 CFR 784.20
requiring a subsidence control plan as part of the permit application.
Section 89.142a(k). This section provides the steps operators must
take when they receive a claim of subsidence damage to a structure or
surface feature. There is no direct corresponding federal counterpart
to this section. Since this section establishes procedures for
operators to contact the regulatory authority and will insure that any
complaints that are received by an operator will be forwarded to the
regulatory authority in a timely manner, the Director finds that this
section is not inconsistent with the requirements of SMCRA and the
federal regulations. The Director is approving this portion of the
amendment.
Section 89.142a(l). This section prohibits the Department from
adjudicating property rights disputes between mine operators and other
parties. Section 507(b)(9) of SMCRA states in part that nothing in
SMCRA ``shall be construed as vesting in the regulatory authority the
jurisdiction to adjudicate property title disputes.'' The Director
finds that this section is in accordance with SMCRA because it does not
give PADEP the authority to adjudicate property rights. The Director is
approving this section.
Section 89.143(a). This section provided performance standards for
operators to follow when conducting underground mining activities. This
section has been deleted with provisions (a)(1), (2), and (4) moved,
with some minor modifications, to 25 Pa. Code 89.142a(a)(1), (2), and
(4) respectively. Section 89.143(a)(3) was modified and moved to 25 Pa.
Code 89.142a(a)(3). Section 89.143(a)(3) stated that no underground
mining activity will be authorized beneath structures where the depth
of overburden is less than 100 feet, with the exception of mine-related
openings to the surface such as entries, shafts and boreholes and site
specific variances for entry development as approved by the Department.
In moving this section, Pennsylvania kept the prohibition of mining
beneath structures where the overburden is less than 100 feet, but
deleted the exceptions and replaced them with the phrase ``unless the
subsidence control plan demonstrates to the Department's satisfaction
that the mine workings will be stable and that overlying structures
will not suffer irreparable damage.'' The Director is approving the
deletion of 25 Pa. Code 89.143 because the requirements of subsections
(a)(1), (2), and (4) remain as part of the Pennsylvania program and the
modification of subsection (a)(3) as found in 25 Pa. Code 89.142a(a)(3)
has been approved. However, the Director is requiring Pennsylvania to
amend its program at 25 Pa. Code 89.142a(a) to take into account
underground mining operations when describing performance standards for
operators to follow.
Section 89.143(b)(1). This section has been deleted with its
provisions modified and moved to 25 Pa. Code 89.142a(c)(1). Section
89.143(b)(1) required underground mining activities to be planned and
conducted in a manner that prevents subsidence damage to: (i) public
buildings and noncommercial structures customarily used by the public,
including churches, schools and hospitals, (ii) dwellings, cemeteries,
municipal public service
[[Page 67040]]
operations and municipal utilities in place on April 27, 1966, (iii)
impoundments and other bodies of water with a storage capacity of 20
acre feet or more, (iv) aquifers, perennial streams and bodies of water
which serve as a significant source for a public water supply system as
defined in the Pennsylvania Safe Drinking Water Act (35 P.S. section
721.1-721.17), and (v) coal refuse disposal areas authorized by permits
issued under Chapter 90 (relating to coal refuse disposal).
The section as it was modified and moved to 25 Pa. Code
89.142a(c)(1) now reads, ``Unless the subsidence control plan
demonstrates that subsidence will not cause material damage to, or
reduce the reasonably foreseeable use of the structures and surface
features listed in subparagraphs (i)-(v), no underground mining shall
be conducted beneath or adjacent to: (i) Public buildings and
facilities, (ii) Churches, schools and hospitals, (iii) Impoundments
with a storage capacity of 20 acre-feet (2.47 hectare-meters) or more,
(iv) Bodies of water with a volume of 20 acre-feet (2.47 hectare-
meters) or more, and (v) Bodies of water or aquifers which serve as
significant sources to public water supply systems.'' The Director is
approving the deletion of 25 Pa Code 89.143(b)(1) because it provided
more comprehensive protections than the federal regulations.
Section 89.143(b)(2). This section was deleted in its entirety.
Prior to deletion, this section listed the damages prohibited by this
subsection, including the cracking of walls, foundations, and
monuments, the draining of aquifers, perennial streams or other bodies
of water that serve as a significant source for a public water supply
system and the weakening of impoundments and embankments. The section
further noted that damage to structures described in paragraph (1)(i)
need not be prevented if done with the consent of the current owner.
The Director is approving this deletion because under federal rules,
such damages may be allowed to occur if the operator promptly repairs
or compensates the landowners for the damages or promptly provides
alternate water supplies. Deletion of this section will not make the
Pennsylvania program less effective than the federal regulations.
Section 89.143(b)(3). This section has been deleted with several of
its provisions moved to 25 Pa. Code 89.142a(c)(2). The provisions that
were moved, with some minor modifications, were: 25 Pa. Code
89.143(b)(3)(i) (A) through (C). The remaining provisions that were
deleted were 25 Pa. Code 89.143(b)(3)(i)(D) and (ii)(A) through (D).
Section 89.143(b)(3)(i)(D) provided that more stringent measures may be
imposed or mining may be prohibited if the measures fail to prevent
subsidence damage. Section (ii) allowed full extraction techniques
where the operator demonstrates that the proposed measures are at least
as effective in prevention of subsidence damage as those described in
this subsection.
The Director is approving the deletion of this section because 25
Pa. Code 89.143(b)(3)(i)(A) through (C) still remain in the approved
program and 25 Pa. Code 89.143(b)(3)(i)(D) and (ii)(A) through (D)
provided protections beyond that contemplated by the federal
regulations. The deletion of 25 Pa. Code 89.143(b)(3) will not make the
Pennsylvania program less effective than the federal regulations.
Section 89.143(c)(1). This section has been deleted and the
provisions moved to section 25 Pa. Code 89.142a(g)(1). The section
discussed protection of utilities and requires underground mining
activities to be planned and conducted in a manner that minimizes
damage, destruction or disruption in services provided by utilities.
When the section was moved to 25 Pa. Code 89.142a(g), Pennsylvania
dropped the word ``activities'' from the phrase ``underground mining
activities.'' The Director is approving the deletion of 25 Pa. Code
89.143(c)(1), but is requiring Pennsylvania to amend its program at 25
Pa. Code 89.142a(g)(1) to insure that underground mining activities are
planned and conducted in a manner that minimizes damage, destruction or
disruption in services provided by utilities. See the Director's
decision under 25 Pa. Code 89.142a(g)(1) for further information.
Section 89.143(c)(2). This section was deleted and the provisions
moved with some modifications to 25 Pa. Code 89.142a(g)(2). The section
originally indicated that the measures adopted to minimize damage,
destruction or disruption of utility services protected by this
subsection may include, in addition to those measures discussed in 25
Pa. Code 89.141(d), a program for detecting subsidence damage and
avoiding disruption in services, and a notification to the owner of the
facility that specifies when the mining activity beneath or adjacent to
the structure will occur. When Pennsylvania moved the section it
changed the phrase ``avoiding disruption in services'' to ``minimizing
disruption in services'' (see 25 Pa. Code 89.142a(g)(2)(i)). The
federal rules at 30 CFR 817.180 require underground mining activities
to be conducted in a manner that minimizes damage, destruction, or
disruption of services provided by utilities. Therefore, the Director
is approving deletion of this section because the provisions appear in
25 Pa. Code 89.142a(g)(2)(i) and (ii) and therefore deleting this
section will not make the Pennsylvania program less effective than the
federal regulations.
Section 89.143(d)(1). This section was deleted and the provisions
moved to 25 Pa. Code 89.142a(h)(1). The provision required, prior to
deletion, underground mining activities to be planned and conducted in
a manner that maintains the value and reasonably foreseeable uses of
perennial streams, such as aquatic life, water supply and recreation,
as they existed prior to mining beneath streams. The provision at 25
Pa. Code 89.142a(h)(1) deleted the word ``activities'' and changed
``mining beneath streams'' to ``coal extraction beneath streams.'' The
Director has approved the deletion of 25 Pa. Code 89.143(d)(1), but is
requiring 25 Pa. Code 89.142a(h)(1) to be amended to be as effective as
section 720 of SMCRA regarding underground mining operations.
Section 89.143(d)(2). This section was deleted in its entirety. The
section, which dealt with perennial streams, read, ``The measures to be
adopted to comply with this subsection shall be described in the
application and include a discussion of the effectiveness of the
proposed measures as related to prior mining activities under similar
conditions.'' There is no federal counterpart to this section. The
Director finds that deleting this section will not make the
Pennsylvania program less effective than the federal regulations.
Section 89.143(d)(3). This section was deleted and the provisions
moved, with some modifications, to 25 Pa. Code 89.142a(h)(2). The
provision originally read, ``If the Department finds that the measures
have adversely affected a perennial stream, the operator shall meet the
requirements of 25 Pa. Code 89.145(a) (relating to surface owner
protection) and file revised plans or other data to demonstrate that
future activities will meet the requirements of paragraph (1).'' As
found in 25 Pa. Code 89.142a(h)(2), the section now reads, ``If the
Department finds that the underground mining has adversely affected a
perennial stream, the operator shall mitigate the adverse effects to
the extent technologically and economically feasible, and, if
necessary, file revised plans or other data to demonstrate that future
underground mining will meet the requirements of paragraph (1).'' The
Director is approving the deletion of 25 Pa. Code 89.143(d)(3), but is
requiring 25 Pa. Code 89.142a(h)(2) to be amended to require operators
to mitigate
[[Page 67041]]
the adverse effects of underground mining operations on perennial
streams.
Section 89.143(e). This section requires underground mining
activities to be planned and conducted in a manner that maintains the
value and reasonably foreseeable use of the overlying surface land
prior to mining. This section has been deleted. Pennsylvania has
incorporated this provision in the amendment at 25 Pa. Code
89.141(d)(8), which requires the subsidence control plan to contain a
description of the measures to be taken to maintain the value and
reasonably foreseeable use of the surface land and at 25 Pa. Code
89.142a(e), which requires correction of material damage to surface
lands to the extent technologically and economically feasible. The
Director is approving deletion of this section because similar
provisions that are as effective as the federal regulations in
maintaining the value and foreseeable use of surface lands are found
elsewhere in the Pennsylvania program.
Section 89.143(f). This section has been deleted and the provisions
moved, with some modification, to 25 Pa. Code 89.142a(i)(1). Prior to
deletion, this section was titled ``Urbanized areas'' and indicated
that underground mining activities shall be suspended beneath urbanized
areas, cities, towns and communities, and adjacent to or beneath
industrial or commercial buildings, solid and hazardous waste disposal
areas, major impoundments or perennial streams, if the activities
presented an imminent danger to the inhabitants of the urbanized areas,
cities, towns or communities. Section 89.142a(i)(1) now states the
Department will suspend underground mining beneath urbanized areas,
cities, towns and communities and adjacent to or beneath industrial or
commercial buildings, lined solid and hazardous waste disposal areas,
major impoundments of 20 acre-feet (2.46 hectare-meters) or more, or
perennial streams, if the operations present an imminent danger to the
public. The Director finds that Pennsylvania's deletion of 25 Pa. Code
89.143(f) and moving of its provisions to 25 Pa. Code 89.142a(i)(1) did
not make this section less effective than the provisions of SMCRA at
section 516(c) and is approving the deletion. However, the Director is
requiring 25 Pa. Code 89.142a(i)(1) to be amended to provide for the
suspension of underground mining operations as per the requirements of
30 CFR 817.121(f).
Section 89.143(g). This section has been deleted and its provisions
moved, with some modification, to 25 Pa. Code 89.142a(j). This section
provides that underground mining activities are prohibited under an
area that is not included within a subsidence control plan submitted
under 25 Pa. Code 89.141(d) and that has been approved by the
Department. In moving the provision, Pennsylvania deleted the word
``activities'' from the phrase ``underground mining activities.'' The
Director finds that deletion of this section does not make the
Pennsylvania program any less effective than the federal program
because the provisions of the deleted section are found elsewhere in
the Pennsylvania program (see the Director's finding at 25 Pa. Code
89.142a(j)).
Section 89.143a(a). This provision requires structure owners with
subsidence damage to notify operators of the damage. This provision is
similar to section 5.5(a) (52 P.S. 1406.5e(a)) of the BMSLCA. The
Director is approving this provision for the same reasons as noted in
regard to section 5.5(a) (52 P.S. 1406.5e(a)) of the statute found
earlier in this rulemaking.
However the Director is requiring this section to be amended
because of the term ``underground mining.'' Please see the combined
finding regarding use of the term ``underground mining'' as opposed to
``underground mining operations'' at the end of the regulation section
for more information.
Section 89.143a(b). This subsection provides that if the operator
agrees that mine subsidence damaged the structure, the operator shall
fully repair the damage or compensate the owner for the damage under
either 25 Pa. Code 89.142a(f) or under a voluntary agreement authorized
by section 5.6 (52 P. S. 1406.5f) of the BMSLCA. Since this subsection
requires full repair or compensation and merely cross references to
other statutory or regulatory provisions, the Director finds this
section no less effective than the federal regulations at 30 CFR
817.121, which require repair or compensation of material damage to
structures.
Section 89.143a(c). This section provides that if, within six
months of the date that the building owner sent the operator
notification of subsidence damage, the parties are unable to agree as
to the cause of the damage or the reasonable cost of repair or
compensation for the structure, the owner may, within two years of the
date damage to the structure occurred, file a claim in writing with the
Department.
This section is substantively identical to section 5.5(b) (52 P.S.
1406.5e(b)) of the BMSLCA. Both the statute and the regulation provide
that a landowner must wait for six months after notifying an operator
of subsidence damage before filing a claim with the Department. Section
5.5(b) (52 P.S. 1406.5e(b)) and the proposed regulation further
restricts the period of time for a landowner to file a complaint by
requiring complaints to be filed within two years of the date damage
occurred to a structure. The Director has not approved the portion of
section 5.5(b) (52 P.S. 1406.5e(b)) of the statute that states `` * * *
within six months of the date of the notice.'' The reasons for not
approving that language can be found under section 5.5(b) (52 P.S.
1406.5e(b)) earlier in this rulemaking. The Director is not approving
the portion of the 25 Pa. Code 89.143a(c) that states, ``* * * within 6
months of the date that the building owner sent the operator
notification of subsidence damage to the structure * * *'' for the same
reasons as noted for section 5.5(b) (52 P.S. 1406.5e(b)) of the
statute.
Additionally, the Director has not approved the portion of section
5.5(b) (52 P.S. 1406.5e(b)) of the BMSLCA requiring complaints to be
filed within two years of the date damage has occurred to a structure.
The Director is not approving the phrase ``within 2 years of the date
damage to the structure occurred * * *'' in 25 Pa Code 89.143a(c) for
the same reasons as found in section 5.5(b) (52 P.S. 1406.5e(b)) of the
statute.
Section 89.143a(d). This section describes the procedures the
Department will follow in conducting an investigation into a subsidence
damage claim. This regulation is similar to section 5.5(c) (52 P.S.
1406.5e(c)) of the BMSLCA. Both the statute and the regulation require
the Department to conduct an investigation within 30 days of receipt
the claim and within 60 days of completion of the investigation provide
a written response. Additionally, both the statute and regulation
provide that, if the Department finds that the operator's underground
mining caused the damage, the Department will either issue a written
order directing the operator to compensate the structure owner or issue
an order directing the operator to repair the damage structure within
six months of the date of issuance of the order. More than six months
may be allowed if the Department finds that further damage may occur to
the same structure as a result of additional subsidence.
The Director approved the portions of section 5.5(c) (52 P.S.
1406.5e(c)) dealing with the time limitations of PADEP's inspection
responsibilities. The approval was made to the extent that Pennsylvania
recognizes that existing provisions of the Pennsylvania
[[Page 67042]]
program regarding responses to citizen complainants could require
Pennsylvania to respond to a citizen more quickly than the 60 days
allowed in this section. Therefore, the Director is approving 25 Pa.
Code 89.143a(d)(1) and (2) to the same extent.
The Director did not approve the provision in 5.5(c) (52 P.S.
1406.5e(c)) of the BMSLCA that allowed written orders with abatement
periods of six months or longer to complete repairs or compensate
landowners for damages. For the same reasons, the Director is not
approving the portion of 25 Pa. Code 89.143a(d)(3) that states, `` * *
* within 6 months of the date of issuance of the order. The Department
may allow more than 6 months if the Department finds that further
damage may occur to the same structure as a result of additional
subsidence.''
Finally, the Director is requiring subsections (d)(1) through (3)
to be amended because of the use of the term ``underground mining.''
Please see the combined finding regarding use of the term ``underground
mining'' as opposed to ``underground mining operations'' at the end of
the regulation section for more information.
Section 89.144. This section lists the requirements to notify the
landowners of impending underground mining beneath their property. The
section was deleted and its provisions moved, with some minor
modifications, to 25 Pa. Code 89.155. Because all of the provisions of
25 Pa. Code 89.144 were moved to 25 Pa. Code 89.155, and those
provisions were found to be as effective as the federal regulations
regarding public notice at 30 CFR 817.122, the Director is approving
the deletion of 25 Pa. Code 89.144.
Section 89.144a(a)(1). This provision provides that the operator
will not be required to repair a structure or compensate a structure
owner for damage to structures if the operator demonstrates that the
landowner denied the operator access to the property upon which the
structure is located to conduct a premining survey or postmining survey
of the structure and surrounding property. This provision is similar to
section 5.4(c) (52 P.S. 1406.5d(c)) of the BMSLCA. The Director is not
approving this portion of the amendment for the same reasons as given
for not approving section 5.4(c) (52 P.S. 1406.5d(c)) of the BMSLCA, as
noted earlier in this rulemaking.
Section 89.144a(a)(2). This provision provides that an operator can
be granted relief from responsibility to repair a structure or
compensate a structure owner for damage to a structure if the
operator's underground mining did not cause the damage. The Director is
approving this portion of the amendment. There is nothing in the
federal regulations requiring operators to compensate owners or repair
damage that was not caused by the operator's underground mining
activities. Therefore, this provision is not inconsistent with the
requirements of SMCRA and the federal regulations.
Section 89.144a(a)(3). This provision provides that an operator can
be granted relief from responsibility to repair a structure or
compensate a structure owner for damage to a structure if the operator
and the landowner entered into a voluntary agreement that satisfies the
requirements of section 5.6 (52 P.S. 1406.5f) of the BMSLCA. Section
5.6(a) (52 P.S. 1406.5f(a)) requires agreements to provide for
``remedies [that]
shall be no less than those necessary to compensate
the owner of a building for the reasonable cost of its repair * * * .''
The Director has approved section 5.6(a) (52 P.S. 1406.5f(a)) of the
BMSLCA and is approving 25 Pa. Code 89.144a(a)(3) of the regulations
because it is consistent with the federal rules at 30 CFR 817.121,
which require permittees to repair damage to structures or compensate
the owner.
Section 89.145(a). This section was deleted in its entirety. This
section required operators to correct material damage resulting from
subsidence to surface lands, including perennial streams, to the extent
technologically and economically feasible, by restoring the land to a
condition capable of maintaining the value and reasonably foreseeable
uses that it was capable of supporting before subsidence.
Pennsylvania's program amendment provides for repair of damage to
surface lands at 25 Pa. Code 89.142a(e). Please see the discussions of
25 Pa. Code sections 89.142a(e), 89.142a(h), and 89.141(d)(3) for
findings on how those sections are no less effective than the federal
regulations that require operators to correct material damage to
surface lands (including streams) by restoration of the land to a
condition capable of maintaining the value and reasonably foreseeable
uses that it was capable of supporting before subsidence. The Director
is approving the deletion of 25 Pa. Code 89.145(a) because the
provisions of that section are covered by 25 Pa. Code section
89.142a(e) and 89.142a(h).
Section 89.145(b). This section was deleted in its entirety. The
section required operators to report claims of subsidence damage to
PADEP within 10 days of notification. There is no comparable federal
standard requiring operators to notify the regulatory authority of
subsidence damage claims. Both the BMSLCA at section 5.5 (52 P.S.
1406.5e) and the implementing regulations at 25 Pa. Code 89.143a
describe procedures for reporting subsidence damage claims to PADEP.
For the Director's findings on reporting, please see the discussions of
those sections. Because there is no federal counterpart to 25 Pa. Code
89.145(b), the Director finds that Pennsylvania's deletion of this
section does not impair the effectiveness of its program. The deletion
is approved.
Section 89.145a(a)(1). This subsection requires operators to
conduct premining water surveys prior to mining within 1000 feet of a
water supply. In our letter of June 21, 1999, to Pennsylvania we stated
that this section contemplates that the premining water survey would be
done after the permit is approved while the federal rule at 30 CFR
784.20(a)(3) requires the completion of the survey prior to permit
approval. In addition, OSM's February 9, 1998, policy memorandum
provides that:
State program amendments that would delay the timing of the
water supply surveys required under 30 CFR 784.20(a)(3) should not
be approved.
In the June 21, 1999, letter we also noted that 25 Pa. Code
89.145a(a)(1) provides that survey information is to be submitted only
to the ``extent that it can be collected without extraordinary efforts
or the expenditure of excessive sums of money'' and that the federal
rules do not allow for waiving survey information. Finally, we asked
Pennsylvania to clarify whether the information required in subsections
25 Pa. Code 89.145a(a)(1)(i) through (vi) will give sufficient
information to determine the premining water quality and quantity. As
stated in the federal rules, ``the survey should incorporate the
baseline water quality and quantity information on existing water
supplies required under existing rules at 30 CFR 784.14 and 784.22.''
60 FR at 16730 (2d col).
Pennsylvania's response of June 1, 2000, noted that its regulations
do not waive the requirement to conduct premining surveys and that, as
required by 25 Pa. Code 89.145a(a), all water supplies that may be
adversely affected by mining must be surveyed by the mine operator.
Pennsylvania advised that the only exception is where the property
owner will not allow the mine operator access to conduct the survey and
that, fundamentally, there is no difference between the federal and
state's regulations in terms of ensuring the availability of baseline
data against which to measure effects.
[[Page 67043]]
Pennsylvania further noted that the survey requirements of 25 Pa.
Code 89.145a(a) are designed around Pennsylvania's water supply
replacement requirements, which are more inclusive than federal
counterpart requirements, and as a result, Pennsylvania's program must
include provisions for surveying water supplies that are installed
after the time of permit application. Finally, Pennsylvania advised
that its program does not postpone the submission of all water supply
information until mining operations have begun. Information relating to
the quality and quantity of water supplies is presented at the time of
permit application in accordance with the requirements of 25 Pa. Code
89.34(a)(1) relating to groundwater information.
The Director addressed this situation in a memorandum to the
Regional Directors dated February 9, 1998, titled ``Timing of
Presubsidence Surveys,'' and in March 1999 letters to the Interstate
Mining Compact Commission and Tri-State Citizens Mining Network (the
``March 1999 letters''). Guidance from the Director provides that
baseline data collected at the time of permit application must be
sufficient to develop the Probable Hydrologic Consequences and
Cumulative Hydrologic Investigation Assessment documents and that
states may use the regulatory program amendment process to identify
what additional information required under 30 CFR 784.20(a)(3) must be
submitted at the time of permit application and which, if any, could be
collected at a time closer to when mining would actually occur. The
Director committed to giving serious consideration to approving state
program amendments that identify what water supply information required
under 30 CFR 784.20(a) must be submitted at the time of permit
application and which, if any, could be collected at a time closer to
when mining actually occurs. Finally, the Director required that states
must demonstrate, through the regulatory program amendment process for
any delayed water supply surveys, that those analyses would be
completed sufficiently in advance of mining to avoid any adverse effect
to the water supply.
OSM considered Pennsylvania's proposed amendment relative to
current program requirements for baseline hydrologic surveys,
information in the Pennsylvania Bulletin (28 Pa.B. 2761), and responses
to OSM requests for clarification relative to the March 1999 letters.
Specifically at issue is whether OSM can approve the Pennsylvania
requirement that operators conduct premining water surveys after the
permit application is approved and prior to mining within 1000 feet of
a water supply. The federal rule at 30 CFR 784.20(a)(3) requires a
survey at the time of the permit application of each and every
protected water supply, i.e. a survey of individual wells, springs,
etc. Pennsylvania advised OSM that its amendment proposal does not
postpone the submission of all water supply information until after the
permit is approved (see the Director's finding at 25 Pa. Code
89.34(a)(1)). The Director notes that the approved Pennsylvania program
at 25 Pa. Code 89.43(a)(1) contains requirements for permittees to
collect baseline hydrology information in a manner no less effective
than the federal requirements at 30 CFR 784.14(b)(1). The federal rules
at 30 CFR 784.14 require sampling of ground water information at the
time of the permit application, but there is the option to use modeling
to meet the requirements for hydrologic prediction. Modeling means that
not every water supply will be sampled. Pennsylvania's existing program
also allows for modeling. This introduces uncertainty into predicting
the type and extent of information that will be collected on each water
supply at the time of the permit application. Additionally, the
preamble to the Pennsylvania Bulletin stated that 25 Pa. Code
89.145a(a)(1) provides for Department technical staff to adjust the
survey distance (1,000 foot limitation) based on site-specific
conditions. Accordingly, it is not clear what parameters Pennsylvania
would require to be collected on each individual supply as part of a
permit application, and which, if any, would be subject to a delayed
survey after permit approval.
Based upon the language contained in the Pennsylvania amendment,
Pennsylvania's responses to OSM's comments, Pennsylvania's existing
program and the Pennsylvania Bulletin, the Director is not approving
the provision that allows for water supply surveys to be delayed until
mining advances within 1,000 feet of a supply. Such information must be
submitted by the permittee with the application. The Director is
requiring Pennsylvania to amend its program to require permittees to
submit the information required by 25 Pa. Code 89.145a(a)(1)(i)-(vi)
that is necessary to meet the provisions of 30 CFR 784.20(a)(3) at the
time of the application for all existing drinking, domestic, or
residential water supplies. As part of that amendment, Pennsylvania may
submit the information requested in the March 1999 letters to identify
what water supply information must be submitted at the time of permit
application and which, if any, could be collected at a time closer to
when mining actually occurs. Along with any such request, Pennsylvania
must demonstrate for any delayed water supply surveys, that those
analyses would be completed sufficiently in advance of mining to avoid
any adverse effect to the water supply.
Pennsylvania further noted that the proviso that survey information
need only be acquired to the extent that it can be collected without
extraordinary efforts or expenditures of excessive sums of money is a
matter of both practicality and preventing inconvenience to property
owners. PADEP noted that this proviso was based on its experience and
pertains especially to situations where rigid requirements to obtain
quantity information would result in tearing apart a well or digging up
the floor of a structure to gain access for measurements. Although the
federal regulations do not include a similar proviso, PADEP does not
believe that OSM would apply them without exercising similar
discretion.
The Director is requiring 25 Pa. Code 89.145a(a)(1) to be amended
to include the provision that survey information need only be acquired
to the extent that it can be collected without extraordinary efforts or
expenditures of excessive sums of money is only applicable when it
applies to inconveniencing landowners. The federal regulations require
the water supply information to be collected without regard to the cost
and effort applied by operators. This provision makes this portion of
the Pennsylvania program less effective than the federal program, which
does not include limits on efforts, or expense, operators are subjected
to in the course of gathering premining survey information.
Section 89.145a(a)(1)(i)-(vi). These six subsections list
information operators are required to include in the premining survey
and, if one is desired, the postmining survey of all water supplies
within the permit and adjacent areas. The Director finds these
subsections no less effective than the federal rules and is approving
the six subsections for the reasons noted below (please also see our
finding concerning 25 Pa. Code 89.145a(a)(1)).
The requirement at subsection (i) for the location and type of
water supply is consistent with the federal regulations at 30 CFR
784.20(a)(1) requiring the subsidence control map to show the location
and type of drinking, domestic,
[[Page 67044]]
and residential water supplies that could be contaminated, diminished,
or interrupted by subsidence. The Director is approving this section
because it is substantially the same as the requirements found at 30
CFR 784.20(a)(1).
Subsection (ii) requires the water supply surveys to include the
existing and reasonably foreseeable uses of the water supply. There is
no similar provision in the federal regulations. The Director is
approving this provision because requiring the operator to gather more
information than is required in the federal regulations does not lessen
the protections afforded by the federal regulations. Additionally, this
information is essential for implementing the provisions of 25 Pa. Code
89.145a(b) and 89.145a(f).
Subsections (iii) and (iv) provide that the surveys include the
chemical and physical characteristics of the water and that a certified
laboratory must be used to analyze the samples and the quantity of
water. These sections require substantially the same information as is
required in the federal regulations at 30 CFR 780.21(b)(1). The
Director is approving this portion of the amendment because it is
consistent with the federal regulations. Subsection (v) requires the
survey to include the physical description of the water supply and
subsection (vi) requires the survey to include hydrogeologic data such
as the static water level and yield determination. The Director is
approving subsections (v) and (vi) because they require information
similar to the ground water information required by the federal
regulations at 30 CFR 780.21(b)(1).
Section 89.145a(a)(2). This provision requires an operator to
submit copies of the results of analyses (described under 25 Pa. Code
89.145a(a)(1)) as well as the results of any quantitative analysis to
the Department and the landowner within 30 days of their receipt by the
operator. Since the federal regulation at 30 CFR 784.20(a)(3) requires
the permit applicant to provide copies of any assessment or evaluation
to the property owner and the state regulatory authority, the Director
finds that this provision is no less effective than 30 CFR
784.20(a)(3).
Section 89.145a(a)(3). This subsection combined with subsection
(a)(1) provides that the operator does not have to conduct a premining
and postmining survey if the landowner does not authorize access to the
site within 10 days of the operator's intent to conduct a survey.
In our letter of June 21, 1999, to Pennsylvania we noted that
federal regulations place no notice requirement on the property owner.
The 10-day requirement of Pennsylvania's regulations makes it appear to
be less effective than the federal regulation because under EPAct, even
though access may initially be denied, the property owner can later
decide to allow a survey.
In its response to us dated June 1, 2000, Pennsylvania noted that
25 Pa. Code 89.145a(a)(3) is intended to alert PADEP to situations
where property owners have denied mine operators access to conduct
premining surveys. This allows PADEP to communicate with the property
owners to further explain the importance of allowing premining surveys
or the procedures to be followed in arranging their own surveys.
Section 89.145a(a)(3) does not preclude property owners from changing
their minds and subsequently authorizing operators to conduct surveys.
The Director is approving this portion of the proposed amendment
based on Pennsylvania's interpretation that there is nothing in the
amendment precluding a landowner from requesting a water supply survey
after initially denying the operator's access to the property.
Therefore, it is no less effective than 30 CFR 784.20 since it does not
prevent surveys.
Section 89.145a(b). This provision requires operators to restore or
replace affected water supplies with a permanent alternate source that
adequately serves the premining uses of the water supply or any
foreseeable uses of the water supply. This regulation implements
section 5.1(a)(1) and 5.1(a)(2) (52 P.S. 1406.5a(a)(1) and (2)) of the
BMSLCA. The Director is approving Pennsylvania's standard regarding the
quality of restored or replaced water supplies and is conditionally
approving its standard regarding the quantity of restored or replaced
water supplies. Please see the discussion at section 5.1(a)(1) and
5.1(a)(2) (52 P.S. 1406.5a(a)(1) and (2)) for more information.
However, this section is less effective than 30 CFR 817.41(j),
which requires permittees to promptly replace drinking, domestic or
residential water supplies. Section 89.145a(b) does not contain any
standard requiring operators to show a diligent and timely effort in
replacing water supplies. For further information on the standard
requiring prompt replacing of water supplies, see the Director's
decision on section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) of the BMSLCA.
The Director is requiring 25 Pa. Code 89.145a(b) to be amended to be no
less effective than 30 CFR 817.41(j) in requiring prompt replacement of
water supplies.
Section 89.145a(c). This section provides that within 24 hours of
an operator's receipt of a claim of water supply contamination,
diminution or interruption, the operator shall notify the Department of
the claim. There is no corresponding federal counterpart to this
section. Since this establishes procedures for operators to contact the
regulatory authority and will insure that any complaints that are
received by an operator will be forwarded to the regulatory authority
in a timely manner, the Director finds that this section is not
inconsistent with the requirements of SMCRA and the federal
regulations.
Section 89.145a(d). This section provides that upon receipt of a
complaint that a water supply has been contaminated, diminished or
interrupted, operators must diligently investigate the complaint and
notify the Department in a timely manner of the results of its
investigation. There is no direct federal counterpart. Since this
establishes procedures for investigations by operators, the Director
finds that this section is not inconsistent with the requirements of
SMCRA and the federal regulations.
Section 89.145a(e)(1). This section provides that if an affected
water supply is within the rebuttable presumption area and the
presumption applies, the operator will provide a temporary water supply
within 24 hours. We noted in our letter to Pennsylvania of June 21,
1999, that the proposed amendment only requires the temporary
replacement of water supplies if three conditions are met: (1) If the
water supply is within the rebuttable presumption area, (2) the
presumption applies and, (3) if ``the landowner or water user is
without a readily available alternate source.'' The federal rules
require the permittee to replace the supply that has been interrupted,
etc., regardless of whether there is an available alternate source and
where there is no rebuttable presumption. The federal rules do not have
a rebuttable presumption standard for water supplies.
In its response of June 1, 2000, Pennsylvania noted that its
program
* * * does provide for the provision of temporary water irrespective
of whether the affected water supply lies inside or outside of the
rebuttable presumption area. The BMSLCA requires the provision of
temporary water within 24 hours if the water supply lies within the
rebuttable presumption area. This requirement is reflected in
section 89.145a(e). If the affected water supply lies outside the
rebuttable presumption area, the responsibility to provide temporary
water is
[[Page 67045]]
driven directly by section 5.2 of BMSLCA. Procedurally, in cases
where a water supply has been affected outside the rebuttable
presumption area, the law requires DEP to issue an order before an
operator is obligated to provide temporary water. For this reason,
the responsibility to provide temporary water in cases where the
affected water supply lies outside the rebuttable presumption area
is not stated in regulation. The requirements of section 89.145a(e)
and the provisions of section 5.2 of BMSLCA act together to ensure
the provision of temporary water in cases where water supply impacts
occur inside and outside of the rebuttable presumption area. It is
further notable that throughout its first five years in enforcing
the water supply replacement requirements of BMSLCA, DEP has never
had to issue an order to compel the provision of temporary water in
any case where the affected water supply was outside the rebuttable
presumption area.
In regard to the rebuttable presumption of causation, there is
no way in which this provision can be interpreted or construed to
render Pennsylvania's program any less effective than the federal
program. The rebuttable presumption amounts to nothing more than
shifting the burden of proof onto the mine operator.
This section is substantively identical to 5.2(a)(2) (52 P.S.
1406.5b(a)(2)) of BMSLCA. Accordingly, the finding for 5.2(a)(2) (52
P.S. 1406.5b(a)(2)) is incorporated herein by reference and the
Director is approving this portion of the regulations to the extent the
statutory section was approved and is requiring Pennsylvania to submit
an amendment requiring the prompt supply of temporary water to all
landowners whose water supply has been impacted by underground mining
activities.
Section 89.145a(e)(2). This subsection provides that the temporary
water supply shall meet the requirements of paragraph (f)(2) and
provide a sufficient amount of water to meet the water supply user's
premining needs. In our letter of June 21, 1999, to Pennsylvania we
noted that the federal definition for ``replacement of water supply''
at 30 CFR 701.5 provides for a ``* * * water supply on both a temporary
and permanent basis equivalent to premining quantity and quality.'' We
noted that this section appears to be less effective than the federal
rules, in that it provides for temporary water based on users' needs
rather than the premining quality.
In its response of June 1, 2000, Pennsylvania noted that under its
program, a temporary water supply is just that, temporary. It is
intended to satisfy the water users' needs so that they can carry out
their daily activities with minimal disruption. By contrast, a
permanent water supply must be adequate to serve not only the water
user's premining needs but also any reasonably foreseeable uses of the
original water supply.
Finally Pennsylvania also notes the federal terms ``drinking,
domestic or residential water supply'' and ``replacement of water
supply'' are defined to include water delivery systems (i.e., the pumps
and piping that deliver water to the point of use). As a general
observation, these systems are usually designed based on the existing
uses of the water supplies. Pennsylvania believes this factor serves to
further align its replacement requirements with those of the federal
regulations.
The federal definition of the term ``replacement of water supply''
at 30 CFR 701.5 requires the provision of both permanent and temporary
water supplies that are the equivalent to the premining quantity and
quality. In 25 Pa. Code 89.145a(e)(2), Pennsylvania has indicated that
temporary water supplies will be restored to the same quality levels as
permanent supplies by requiring that temporary water supplies meet the
quality requirements of 25 Pa. Code 89.145a(f)(2). However,
Pennsylvania has not required temporary water supplies to meet the same
quantity requirements of permanent supplies as defined in 25 Pa. Code
89.145a(f)(3)(i) and (ii), i.e., the amount of water necessary to meet
the water user's needs and any reasonably foreseeable uses. Instead,
Pennsylvania only requires temporary water supplies to provide a
sufficient amount of water necessary to meet the water supply user's
premining needs. The Director has conditionally approved 25 Pa. Code
89.145a(f)(3)(i) and (ii), as being as effective as the federal
regulations regarding quantity of replacement supplies. Therefore, the
Director finds that to be consistent with the federal regulations, 25
Pa. Code 89.145a(e)(2) should require the quantity of temporary water
supplies to meet the requirements of 25 Pa. Code 89.145a(f)(3)(i) and
(ii). Accordingly, the Director is requiring Pennsylvania to amend this
section to insure that temporary water supplies are restored to the
same levels as are required of permanent water supplies. Please see the
discussion in section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) for more
information on the Director's conditional approval regarding quantity
of replacement water supplies.
Section 89.145a(f)(1)(i)--(iv). This section requires that a
permanently restored or replaced water supply shall include any well,
spring, municipal water supply system or other supply approved by the
Department that meets criteria listed in subsections (1)(i) through
(iv). Section 89.145a(f)(1) talks about reliability, cost, maintenance
and control. Subsection (i) requires the restored or replaced water
supply to be as reliable as the previous water supply. Subsection (ii)
requires the restored or replaced water supply to be as permanent as
the previous water supply and subsection (iii) requires the supply to
not require excessive maintenance. Subsection (iv) requires that the
supply provide the owner and the user with as much control and
accessibility as exercised over the previous water supply. The Director
is approving 25 Pa. Code 89.145a(f)(1)(i) through (iv). There are no
direct corresponding federal regulations to these sections. The
Director finds that these sections are no less effective than the
requirements found in the definition of the term ``replacement of water
supply'' in the federal regulations at 30 CFR 701.5 because it helps
return the water supply to its premining status.
Section 89.145a(f)(1)(v). This subsection provides that a restored
or replaced water supply must not result in more than a de minimis cost
increase to operate and maintain. The operator must pay for increased
operating and maintenance costs that exceed a de minimis cost increase.
As noted earlier in this rulemaking (see our finding for 25 Pa. Code
89.5, definition of ``de minimis cost increase''), the Director has not
approved a ``de minimis cost increase.'' The Director does not believe
that passing any increased costs to operate or maintain replacement
water supply systems to landowners will fulfill the intent of the
federal regulations to make the landowner whole. Accordingly the
Director is not approving 25 Pa. Code 89.145a(f)(1)(v) to the extent
that it passes de minimis cost increases to landowners.
Section 89.145a(f)(2). This section provides that a restored or
replaced water supply will be deemed adequate when it differs in
quality from the premining water supply if it meets the standards of
the Pennsylvania Safe Drinking Water Act or is comparable to the
premining water supply when that water supply did not meet those
standards. This regulation is comparable to section 5.1(a)(2) (52 P.S.
1406.5a(a)(2)) of the BMSLCA. Please see our discussion regarding
section 5.1(a)(2) (52 P.S. 1406.5a(a)(2)) for a discussion of the
Director's approval regarding quality of replacement water supplies.
The Director is approving this section for the same reasons.
Section 89.145a(f)(3)(i). This subsection provides that a restored
or replaced water supply will be deemed adequate in quantity if it
delivers the
[[Page 67046]]
amount of water necessary to satisfy the water user's needs and the
demands of any reasonably foreseeable uses. This section of the
regulations implements section 5.1(a)(1) (52 P.S. 1406.5a(a)(1) of the
BMSLCA. For a complete discussion of the Director's conditional
approval of this section, please see the discussion of section
5.1(a)(1) (52 P.S. 1406.5a(a)(1)). The Director's findings are
incorporated herein and this section is approved to the extent that
section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) is approved.
Section 89.145a(f)(3)(ii). This subsection provides that a restored
or replaced water supply will be adequate in quantity if it is
established through a connection to a public water supply system that
is capable of delivering the amount of water necessary to satisfy the
water user's needs and the demands of any reasonable foreseeable uses.
The Director is conditionally approving this portion of the
amendment. For more information on the Director's conditional approval
of this section, please see the discussion of section 5.1(a)(1) (52
P.S. 1406.5a(a)(1)) of the BMSLCA under the statute section.
Section 89.145a(f)(3)(iii). This subsection defines the term
``reasonably foreseeable uses with respect to agricultural water
supplies'' to include the reasonable expansion of use where the water
supply available prior to mining exceeded the farmer's actual use.
The Director is approving this portion of the amendment. For more
information on the Director's approval of this section, please see the
discussion of section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) of the BMSLCA
under the statute section.
Section 89.145a(f)(4). This section of the regulations provides
that replacement of a water supply shall include the installation of
any piping, pumping equipment and treatment equipment necessary to put
the replaced water source into service. The Director is approving this
portion of the regulations. This section is no less effective than the
requirements found in definition of the term ``drinking, domestic, or
residential water supply'' in the federal regulations at 30 CFR 701.5.
This definition provides that the drinking, domestic, or residential
water supply includes appurtenant delivery systems. This portion of
Pennsylvania's regulations specifies the type of equipment that would
be included in appurtenant delivery systems and therefore is consistent
with the federal definition and is approved. For more information on
standards for delivery systems, please see the Director's findings for
section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) of the BMSLCA.
Section 89.146a(a). This section provides the procedures to be used
for landowners or water supply users to secure resolution of water
supply damage claims. Subsection (a) requires landowners to notify mine
operators when they experience contamination, diminution or
interruption of a water supply. The requirement for landowners to
contact operators is also found in section 5.2(a)(1) of the BMSLCA. The
Director has approved that requirement for the reasons noted in the
discussion of section 5.2(a)(1). The Director is approving 25 Pa. Code
89.146a(a) for the same reasons.
Section 89.146a(b). This section provides that the Department will
order the operator to provide temporary water to the landowner or water
supply user within 24 hours of issuance of the order if: (1) No
alternate temporary water supply is available to the landowner or water
user, (2) the water supply is contaminated, diminished or interrupted,
(3) the water supply is located within the rebuttable presumption area
and, (4) the owner notified the operator of the water supply problem.
These requirements are similar to those found in section 5.2(a)(1)
through (3) of the BMSLCA. The Director is approving 25 Pa. Code
89.146a(b)(1) through (4). The requirement to provide temporary water
within 24 hours is within guidelines proposed by OSM in the preamble to
the federal regulations (60 FR 16727) and is consistent with the
federal definition of ``replacement of water supply'' at 30 CFR 701.5,
which requires replacement of protected water supplies on a temporary
basis. It is also consistent with the enforcement procedures found in
Part 843 of the federal regulations since a failure by the operator to
replace the water supply as required under 25 Pa. Code 89.145a(e) is a
violation of a performance standard.
Section 89.146a(b)(1), which limits PADEP's ability to issue an
order requiring operators to provide temporary water within 24 hours of
issuance of an order if an alternate temporary source is available to
landowners, is approved based on an explanation provided by
Pennsylvania. In its June 1, 2000, response to our June 21, 1999,
letter regarding the same subject covered in section 89.145a(e),
Pennsylvania noted that, ``[PA]DEP does not interpret subsection (1) as
imposing any responsibilities on property owners. If plumbing
connections are required to establish a temporary water service, they
must be provided by the mine operator. [T]he regulation simply provides
that if an alternate source exists and the property owner can put it
into service with no more than the flip of a switch or a turn of a
valve, the mine operator may be relieved of the responsibility to do
any thing more in the way of providing temporary water.'' Since the
federal rules do not allow additional costs or burdens to be placed on
the water user, the Director finds Pennsylvania's explanation
consistent with the federal rules and as previously stated, finds this
section is no less effective than the federal regulations in securing
temporary water for landowners.
Section 89.146a(b)(4) is similar to section 5.2(a)(1) of the
BMSLCA, which also requires landowners to notify operators of water
supply problems. The Director is approving 25 Pa. Code 89.146a(b)(4)
for the same reasons as section 5.2(a)(1) was approved.
Section 89.146a(c). Section 89.146a(c) provides that a landowner or
water user may notify the Department and request an investigation if an
alternate water supply has not been provided or if the alternate source
is later discontinued. This section is similar to section 5.2(b)(1) of
the BMSLCA. The Director has approved section 5.2(b)(1) and for the
same reasons is approving 25 Pa. Code 89.146a(c).
The procedures for securing an investigation are provided in 25 Pa.
Code 89.146a(c) (1) through (3). These subsections are similar to
section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) of the BMSLCA. The Director
is approving section 5.2(b)(2) to the extent that Pennsylvania
recognizes that the approved program may require a more timely response
to complaints than that allowed by that section. The Director is
approving 25 Pa. Code 89.146a(c)(1) through (3) to the same extent and
with the same requirements as section 5.2(b)(2).
Section 89.152(a)(1). This section provides the circumstances under
which an operator may be relieved from liability from water supply
replacement. Subsection (1) provides that an operator will not be
required to restore or replace a water supply if the contamination,
diminution or interruption existed prior to the underground mining
activities and the mining activities did not worsen the preexisting
condition. The Director is approving this portion of the amendment. The
federal regulations at 817.41(j) do not require replacement of water
supplies unless contamination, diminution or interruption due to mining
activities has occurred, therefore, 25 Pa. Code 89.152(a)(1) is
consistent with the federal rules.
[[Page 67047]]
Section 89.152(a)(2). This section provides that the operator is
not required to restore or replace a water supply if the operator can
demonstrate that the contamination, diminution or interruption is due
to underground mining activities that occurred more than three years
prior to the onset of the water supply contamination, diminution or
interruption. This subsection is similar to section 5.2(e)(2) of the
BMSLCA. The Director did not approve 5.2(e)(2) because the statute of
limitations provision virtually assures that at some point in time,
there will be a water supply that will not be restored or replaced
because the landowner did not report the contamination, diminution or
interruption within the noted time frame. Further discussion on the
Director's decision to not approve section 5.2(e)(2) of the BMSLCA can
be found earlier in this rulemaking. The Director is not approving this
section of the regulations for the same reasons.
Section 89.152(a)(3). This section provides that the operator will
not be required to restore or replace a water supply if the
contamination, diminution or interruption occurred as the result of
some cause other than the underground mining activities. This section
of the regulations is similar to the provisions of section 5.2(e)(3) of
the BMSLCA. The Director's approval of 5.2(e)(3) can be found earlier
in this rulemaking. The Director is approving this section for the same
reasons.
Section 89.152(a)(4). This section provides that the operator will
not be required to restore or replace a water supply if the claim for
contamination, diminution or interruption of the water supply was made
more than two years after the water supply was adversely affected by
the underground mining activities. This section is similar to section
5.1(b) of the BMSLCA. The Director has not approved section 5.1(b) for
the reasons found in the discussion of that section earlier in this
rulemaking. The Director is not approving 25 Pa. Code 89.152(a)(4) of
the regulations for the same reasons.
Section 89.152(a)(5)(i). This section provides that the operator
will not be required to restore or replace a water supply if the
operator has purchased the property for a sum equal to the property's
fair market value immediately prior to the time the water supply was
affected or has made a one-time payment equal to the difference between
the property's fair market value prior to the time the water supply was
affected and the fair market value determined at the time the payment
is made. This section is similar to the provisions of section 5.2(g)(1)
and (2) of the BMSLCA. The Director has not approved 5.2(g)(1) and (2)
because the federal program does not provide for compensation in lieu
of replacement or restoration of water supplies. A complete discussion
of the reasons for not approving sections 5.2(g)(1) and (2) can be
found earlier in this rulemaking. The Director is not approving 25 Pa.
Code 89.152(a)(5)(i) of the regulations for the same reasons.
Section 89.152(a)(5)(ii). This section provides that the operator
will not be required to restore or replace a water supply if the
landowner and operator have entered into a valid voluntary agreement
under section 5.3 of the BMSLCA. This section is similar to a portion
of section 5.3(a) of the BMSLCA. We did not approve that portion of
section 5.3(a) that allowed compensation in lieu of restoration or
replacement of affected water supplies. As the Director previously
noted, OSM's policy as set forth in the preamble to the federal EPAct
rules, is to require restoration or replacement. The federal rules do
not allow operators and landowners to enter into voluntary agreements
in lieu of restoration or replacement of affected water supplies. The
full discussion of the Director's reasons for not approving a part of
section 5.3 of the BMSLCA can be found in the discussion of that
section earlier in this rulemaking. Section 89.152(a)(5)(ii) is not
approved for the same reasons.
Section 89.152(b). This subsection states that the section does not
apply to underground mining activities that are governed by Chapter 87
(relating to surface mining of coal). In our letter of June 21, 1999,
to Pennsylvania, we noted that the preamble to the federal definition
of ``replacement of water supply'' states that the ``definition is
applicable to both underground coal mining operations and surface
mining operations that affect water supplies.'' The preamble to the
federal rules indicates that, ``The final rule is intended to apply to
replacement of water supply under both sections 717(b) and 720(a)(2) of
SMCRA.'' 60 FR at 16726. We asked Pennsylvania to clarify how the
Pennsylvania program meets the federal regulations in protecting water
supplies affected by both underground and surface mining operations.
In its reply of June 1, 2000, Pennsylvania noted:
[The]
water supply replacement requirements originate in two
different statutes. In cases where impacts are due to operations
carried out below the surface in the workings of an underground
mine, replacement requirements are driven by BMSLCA. In cases where
impacts are due to activities at the land surface (i.e., surface
mines, surface sites associated with underground mines, coal
preparation plants and coal refuse disposal areas), requirements are
driven by SMCRA. While replacement requirements are similar under
both BMSLCA and SMCRA, there are subtle differences that demand
separate treatment. For example, BMSLCA includes a rebuttable
presumption provision that is defined by an angular projection from
underground mine workings, whereas, the rebuttable presumption
provision of SMCRA is defined by a horizontal projection from the
area where activities take place at the surface. Due to these
differences, effects resulting from surface operations at an
underground mine must be treated separately from effects resulting
from underground operations. In deciding the appropriate treatment,
DEP first decides whether effects are due to activities at a surface
site or activities in the underground mine workings. If the effects
are due to operations in the underground workings, DEP applies the
replacement requirements of 25 Pa Code 89.145a. If the effects are
due to operations at a surface activity site, DEP applies the
replacement requirements in section 87.119 or section 88.107.
There is no direct federal counterpart. The federal regulations at
30 CFR 817.41(j) require the permittee to replace any affected water
supply that is affected by underground mining activities. The federal
definition of ``underground mining activities'' at 30 CFR 701.5
includes surface operations incident to underground coal extraction and
underground operations. Section 89.152(b) merely delineates which parts
of the Pennsylvania program address the various underground mining
activities. Accordingly, it is not inconsistent with the requirements
of SMCRA and the federal regulations. The Director notes that
Pennsylvania's program amendment regarding water supply replacement
provisions of surface mines, including surface operations incident to
underground coal extraction, has not yet been approved by OSM.
Section 89.153(a) and (b). This section deals with the relationship
between a rebuttable presumption and water supply replacement. The
provisions of subsections (a) and (b) are substantively identical to
the provisions of section 5.2(c) of the BMSLCA. As we stated
previously, there is no federal regulation that prohibits the state
from enacting a rebuttable presumption for water supply replacement. In
fact, by finding that operators are presumed responsible for
replacement of water supplies, these regulations will assist in
insuring that operators are promptly informed of their obligation to
replace affected supplies and provide emergency and temporary water
[[Page 67048]]
promptly. Thus, the Director finds that these sections are in
accordance with section 720(a)(2) of SMCRA, which requires the prompt
replacement of a protected water supply.
Section 89.153(c). This subsection provides that affirmatively
proving that an operator was denied access to conduct a premining or
postmining survey of a water supply does not relieve the operator of
liability for the contamination, diminution or interruption when the
landowner, affected water user or the Department proves the operator's
underground mining activities caused the contamination, diminution or
interruption. There is no direct counterpart to this section in the
federal regulations. However, this section is not inconsistent with the
requirements of SMCRA and the federal regulations because it does not
eliminate an operator's responsibility and it is not inconsistent with
enforcement actions where the regulatory authority has the initial
burden of going forward with evidence. Therefore, the Director is
approving this section.
Section 89.154. This section describes the type and make up of maps
to be submitted with the permit application. Subsection (a) describes
the general mine map and the elements that are required to be
incorporated into the map. Numerous provisions of this section were
moved from 25 Pa. Code 89.142, which was previously approved by OSM.
Specifically, 25 Pa. Code 89.142(a)(1) through (5) were moved to 25 Pa.
Code 89.154. The Director is approving the subsections since they were
previously approved by OSM and the federal rules have not changed since
that approval.
Section 89.142(a)(6) was also moved to 25 Pa. Code 89.154, with the
exception of the deletion of references in subsections (6)(ii) and
(iii) to buildings in place as of April 27, 1966, and the deletion of
the reference to cemeteries in place as of April 27, 1966, in
subsection (6)(iii). These references were deleted in PADEP's
rulemaking of May 10, 1997 (27 Pa.B. 2371) that was made in response to
Act 54's deletion of protection to structures in place as of April 27,
1966. The May 10, 1997, rulemaking that modified subsections (6)(ii)
and (iii) was not submitted to OSM for approval prior to the current
amendment. The Director is approving the deletion of 25 Pa. Code 89.154
because the deletion of references to April 27, 1966, provides
protections no less effective than those found in the federal
regulations. The deletion will not make Pennsylvania's program less
effective than the federal program.
In addition, several provisions not previously found in 25 Pa. Code
89.142 were added to 25 Pa. Code 89.154. These include 25 Pa. Code
89.154(6)(iii), (x), (xi), (xix). Section 89.154(a)(6)(iii) requires
maps to contain structures or classes of structures listed in 25 Pa.
Code 89.142a(f)(1)(i)-(v). Section 89.154(a)(6)(x) requires maps to
depict oil, gas and coal slurry pipelines larger than 4 inches in
diameter. Section 89.154(a)(6)(xi) requires maps to depict water and
sewer main and transmission lines. Section 89.154(a)(6)(xix) requires
maps to depict proposed underground workings, including a description
of the location and extent of the areas in which planned subsidence
mining methods will be used and the identification of all areas where
measures will be taken to prevent or minimize subsidence and
subsidence-related damage.
The Director is approving these various subsections. The federal
rule at 30 CFR 784.20(a)(1) requires a map of the permit and adjacent
area showing the location and type of structures, lands and water
supplies that could be affected by subsidence. The Pennsylvania rules
list such items, therefore they are no less effective than the federal
requirements for maps found in 30 CFR 784.20(a)(1). In addition,
Pennsylvania's mapping requirements include items which are required
under 30 CFR sections 783.24(c), 783.25(a)(1), 783.25(a)(4) and
783.25(a)(5) and are no less effective than these federal regulations.
In our letter of June 21, 1999, to Pennsylvania, we noted that this
subsection does not contain a requirement that the general mine map
include renewable resource lands or drinking or domestic or residential
water supplies as is required by 30 CFR 784.20(a)(1).
In its response to us of June 1, 2000, Pennsylvania noted that:
Section 89.154(a) does require the General Mine Map to include
water supplies (see subparagraph (6)(vii)). The definition of water
supply under 25 Pa Code 89.5 includes domestic water supplies and
virtually all other types of developed water supplies commonly found
in the bituminous coal fields. There is also a general requirement
to show all water wells under subparagraph (6)(xiv). These
requirements would include all water supplies within the scope of
the federal term, ``drinking, domestic or residential water
supply.''
Although section 89.154(a) does not include an explicit
requirement to show renewable resource lands on the map, it does
include requirements to map most elements that fall within the scope
of the term, renewable resource lands. First of all, the General
Mine Map must include the entire surface area above the proposed
mine and additional area beyond the mine boundaries where structures
may be damaged and surface lands may suffer material damage. This
area would include all renewable resource lands that exist above or
adjacent to the proposed mine. It would include the recharge area of
aquifers that lie above and adjacent to the mine plan. It would also
include areas where agricultural operations take place.
The federal definition of ``renewable resource lands'' found at 30
CFR 701.5 means aquifers and areas for the recharge of aquifers and
other underground waters as well as areas for agricultural or
silvicultural production, production of food and fiber, and grazing
lands. The Director accepts Pennsylvania's position that 25 Pa. Code
89.154 will require the requisite information on aquifers and areas for
agricultural production and is approving this section.
Section 89.154(b). This section requires mine maps to be submitted
to the Department every six months and also gives the requirements for
the objects that are to be included on the maps. There is no federal
counterpart to this section. The Director finds that this section is
not inconsistent with the requirements of SMCRA and the federal
regulations because it will not limit protection to landowners and
water users and will allow them to monitor the progress of underground
mining operations. The Director is approving this section.
Section 89.154(c). This section requires the six-month maps to be
filed with the recorder of deeds for each county in which underground
mining is projected and proof of filing to be submitted to the
Department. There is no federal counterpart to this section. The
Director finds that this section is not inconsistent with the
requirements of SMCRA and the federal regulations because it will not
limit protection to landowners and water users and will assure the
progress maps are available to the public. The Director is approving
this section.
Section 89.154(d). This section provides that no underground mining
may occur until it is shown as projected mining on the maps required by
subsection (b) and the maps have been on file with the recorder of
deeds office for 10 days. There is no federal counterpart to this
section. The Director finds that this section is not inconsistent with
the requirements of SMCRA and the federal regulations because it will
not limit protection to landowners and water users and will assure
mining maps delineating mining progress are
[[Page 67049]]
available for inspection. The Director is approving this section.
Section 89.155. This section provides for public notice to property
owners, utilities, and political subdivisions at least six months, but
less than five years, prior to mining beneath the property. It also
requires that the notice identify the area where underground mining
will occur, the time frames for mining, the location where the maps and
applications (which includes the subsidence control plan) may be
inspected, and where the owners can submit complaints. These
requirements are essentially the same as the requirements of the
federal regulations at 30 CFR 817.122. The federal rules require at
least six months notice to all owners and occupants. The notice must
include the areas to be mined, the time frames and the location where
the subsidence control plan may be examined. The Director is approving
this public notice portion of the regulation because it is no less
effective than the federal regulations at 30 CFR 817.122. However, the
Director is requiring this section to be amended because of the use of
the term ``underground mining.'' Please see the combined finding
regarding use of the term ``underground mining'' as opposed to
``underground mining operations'' at the end of the regulation section
for more information.
Sections 89.141(d), 89.141(d)(9), 89.142a(a), 89.142a(f)(1),
89.142a(f)(2)(i), 89.142a(h)(1), 89.142a(h)(2), 89.142a(i)(1),
89.143a(a), 89.143a(d)(1), 89.143a(d)(2), 89.143a(d)(3), 89.155(b)(1)
and (2), and 89.155(c). The Director has found that these sections of
25 Pa. Code Chapter 89 are less stringent than section 720(a) of SMCRA
because of their reference to underground mining. These sections
require a description of the impacts of underground mining on surface
features, structures and facilities and provide performance standards
to remedy those impacts. Section 720(a) of SMCRA requires underground
coal mining operations to comply with those requirements. The term
``underground coal mining operations'' is more expansive than
Pennsylvania's definition of underground mining, which is defined at 25
Pa. Code 89.5 to be the extraction of coal. The federal definition of
underground coal mining activities describes underground operations as
underground construction, operation and reclamation of shafts, adits,
underground support facilities, in situ processing, and underground
mining, hauling, storage and blasting. Thus, under Pennsylvania's
proposed sections, the only activity that must meet the environmental
requirements of Chapter 89 is coal extraction, while under SMCRA, all
underground operations must meet the environmental requirements. The
Director is requiring the above noted sections of 25 Pa. Code to be
amended to be no less stringent than section 720(a) of SMCRA.
Summary Table
The table below summarizes the Director's findings with regard to
each section of 25 Pa. Code Chapter 89.
------------------------------------------------------------------------
Sections of the
regulations under 25 Sections of the
Pa. Code Chapter 89 regulations under 25
Sections of the regulations that are Pa. Code Chapter 89
under 25 Pa. Code Chapter 89 conditionally that are not
that are approved approved or are approved in whole or
required to be in part
amended
------------------------------------------------------------------------
Section 89.5, the 89.141(d), (d)(3), 89.5, the
definitions of the (6), and (9). definitions of the
following terms: 89.142a(a).......... following terms:
``dwelling,'' ``irreparable 89.142a(c)(3)....... ``de minimis cost
damage,'' ``material 89.142a(d).......... increase,'' ``fair
damage,'' ``noncommercial 89.142a(f)(1)....... market value,''
building,'' ``public 89.142a(f)(2)(i).... ``permanently
buildings and facilities,'' 89.142a(g)(1)....... affixed appurtenant
``public water supply structures''.
system,'' ``rebuttable 89.142a(f)(1)(iii).
presumption area,'' 89.143a(c).
``underground mining,'' 89.143a(d)(3).
``underground mining
operations,'' ``water
supply''.
89.142a(h)(1) and 89.144a(a)(1).
(2)
89.142a(i)(1) 89.145a(a)(1).
89.143a(a) 89.145a(f)(1)(v).
89.143a(d)(1) and 89.152(a)(2) and
(2) (4).
89.33....................... 89.145a(b).......... 89.152(a)(5)(i) and
(ii).
89.34....................... 89.145a(e)(1) and
(2)
89.35....................... 89.145a(f)(3)(i) and
(ii)
89.36....................... 89.146a(c)
89.67....................... 89.155(b)(1) and
(2), and (c)
89.141(a)
89.141(d)(2), (d)(4),
(d)(5), (d)(7), (d)(8),
(d)(10) and (d)(11)
Deletion of 89.142
89.142a(a)(1), (2), (3) and
(4)
89.142a(b)
89.142a(c)(1) and (2)(i)-
(vi)
89.142a(e)
89.142a(f)(1)(i), (ii),
(iv), and (v)
89.142a(f)(2)(ii)
89.142a(g)(2), (3), and (4)
89.142a(i)(2), (j), (k), and
(l)
Deletion of 89.143(a)
through (g)
89.143a(b)
Deletion of 89.144
89.144a(a)(2), and (3)
Deletion of 89.145(a) and
(b)
89.145a(a)(1)(i)-(vi)
89.145a(a)(2) and (3)
89.145a(c)
89.145a(d)
89.145a(f)(1)(i)-(iv)
89.145a(f)(2)
89.145a(f)(3)(iii)
[[Page 67050]]
89.145a(f)(4)
89.146a(a), and (b)
89.152(a)(1) and (3)
89.152(b)
89.153 (a) through (c)
89.154(a) through (d)
89.155(a), (b)(3) and (4)
------------------------------------------------------------------------
IV. Summary and Disposition of Comments
Federal Agency Comments
On August 5, 1998, we asked for comments from various federal
agencies that may have an interest in the Pennsylvania amendment
(Administrative Record Number PA 841.08). We solicited comments in
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of
the federal regulations.
The U.S. Department of Labor, Mine Safety and Health
Administration, Coal Mine Safety and Health, Districts 1 and 2
indicated it had no comments on the proposed amendment.
The U.S. Fish and Wildlife Service (FWS) submitted comments
regarding several areas. The first comments were concerned with
endangered species. FWS pointed out that Pennsylvania's regulations at
25 Pa. Code, Chapter 89, Subchapters A, D, E, F, and G do not mention
endangered species protection. FWS goes on to say that the provision in
Subchapter C, section 89.82(e) appears to be less protective than the
federal requirement found in 30 CFR 773.15(c) and appears to apply only
to reclamation activities. FWS also described the requirements for
protection of endangered species found in Subchapter B, section 86.37.
FWS concludes its comments on endangered species by indicating it is
unclear whether the provisions of Chapter 86.37(a)(15) apply to all
portions of Chapter 89, including the less protective section 89.82(e).
OSM did not find these comments to be relevant to the amendment
submitted by Pennsylvania. Pennsylvania is requesting to change its
program to deal with subsidence damage to structures and water
supplies. The portions of Chapter 89 dealing with endangered species
were not part of the amendment Pennsylvania submitted for approval.
Neither section 86.37 nor section 89.82 were requested to be changed by
Pennsylvania in this rulemaking. These sections are part of
Pennsylvania's approved program and as such it would be inappropriate
for OSM to comment on them in the context of the current rulemaking.
FWS also submitted comments regarding streams. FWS noted that
Pennsylvania limits subsidence protection for streams to perennial
streams, which is a limitation not found in the federal program. FWS
asserts that there is no similar limitation in the federal program,
which generally protects ``streams'' or ``intermittent and perennial''
streams. Presumably, FWS's assertion that Pennsylvania's program
provides lesser protection to intermittent and perennial streams was
made relative to full extraction mining and on the basis that proposed
sections 89.141(d)(9) and (10) under subsidence control application
requirements only mention perennial streams.
Two points are relevant to address the FWS's concern. First, the
above referenced requirements were previously included in the approved
Pennsylvania program. More specifically, sections 89.141(d)(9) and (10)
were previously addressed in the approved program under old section
89.141(d)(2). Old section 89.141(d)(2) required a discussion of
perennial streams based on 89.143(d) and 89.143(b)(1)(iv),
respectively, and addressed the specific topics found at the new
89.141(d)(9) and (10).
Second, the Pennsylvania program requires the same level of
subsidence damage prevention and mitigation for streams (perennial and
intermittent) that is required under the federal requirements. Federal
requirements address full extraction mining impacts to surface lands
through a material damage standard. As noted in the preamble to the
1995 federal EPAct rules, ``[T]he definition of ``material damage''
covers damage to the surface and to surface features, such as wetlands,
streams, and bodies of water * * *'' (60 FR 16724). Under 30 CFR
784.20(b)(8), the permit subsidence control plan must contain a
description of the measures to be taken to mitigate any subsidence-
related material damage to the land. In addition, under 30 CFR
817.121(c)(1), the permittee must correct any material damage resulting
from subsidence caused to surface lands, to the extent technologically
and economically feasible, by restoring the land to a condition capable
of maintaining the value and reasonably foreseeable uses that it was
capable of supporting before subsidence damage.
With regard to Pennsylvania requirements, even prior to the
proposed amendment, the approved program required the protection of
surface lands (including perennial and intermittent streams) in a
manner no less effective than federal standards. More specifically, old
section 89.141(d)(2) and subsection (d)(2)(iii) required a description
of the measures (both underground and on the surface) taken to prevent,
minimize or avoid subsidence from causing damage or lessening the value
or reasonably foreseeable use of the surface land. Old performance
standards sections 89.143(e) and 89.145(a) required operators to
maintain the value and reasonably foreseeable use of surface lands and
to correct material damage to surface lands to the extent
technologically and economically feasible by restoring the land to a
condition capable of maintaining the value or reasonably foreseeable
use. The proposed Pennsylvania amendment did not alter that level of
protection. Under sections 89.141(d)(8) and 89.142a(e), Pennsylvania
still requires operators to provide a description of the measures to be
taken to maximize mine stability and maintain the value and reasonably
foreseeable use of the surface land, and when damaged by subsidence, to
correct material damage to surface lands to the extent technologically
and economically feasible. In conclusion, OSM does not agree with FWS
that Pennsylvania limits subsidence protection to perennial streams.
Rather, Pennsylvania's regulations have in the past and will continue
to after this approval, contain more specific language aimed at
addressing basic federal requirements for the protection of those
streams identified as perennial in nature.
FWS also commented that Pennsylvania has reduced stream
[[Page 67051]]
protection in Chapter 89 by revising the definition of a perennial
stream. While FWS admits the definition of a perennial stream in
Chapter 89 closely matches the federal definition of perennial streams
found in 30 CFR 701.5, it notes that Pennsylvania's implementing
technical guidance document is not adequate. The technical document
(TGD 563-2000-655) provides a methodology for proving a stream is not
perennial that is not biology based, which could lead to a failure to
protect many stream systems. FWS also questioned implementation of
technical guidance document TGD 563-2000-655 with regard to evaluating
restrictions on mining near streams. In this case FWS asked OSM to
conduct a random sampling of streams undermined to evaluate the ability
of the TGD to predict subsidence effects on streams before OSM accepts
the TGD as part of Pennsylvania's program amendments. Finally FWS
indicated TGD 563-2000-655 is inconsistent with SMCRA and the Clean
Water Act because it does not adequately address aquatic life issues.
Pennsylvania did not amend its definition of ``perennial stream''
in this rulemaking. Also Pennsylvania did not submit technical document
(TGD 563-2000-655) as part of this program amendment. As a result, OSM
did not review it in conjunction with the amendment. Since the
definition and the technical document are outside the scope of the
amendment, OSM is not required to respond to this comment.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to
solicit comments and obtain the written concurrence of the EPA with
respect to those provisions of the proposed program amendment that
relate to air or water quality standards promulgated 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.). By letter dated August 5, 1998, we
requested comments and concurrence from EPA on the Commonwealth's
proposed amendment of the BMSLCA and implementing regulations
(Administrative Record Number PA 841.08). EPA responded on April 26,
2001 (Administrative Record Number PA 841.07), that it had no
objections or specific comments on the proposed amendments. However,
EPA did wish to convey its concerns about the impact of longwall mining
operations on streams and noted that it supports continued evaluation
of the extent of impacts and the development of solutions for
preventing, minimizing, or mitigating objectionable impacts.
OSM solicited, but did not receive, comments from the Advisory
Council on Historic Preservation, and the U.S. Department of
Agriculture, Soil Conservation Service.
State Agency Comments
The Pennsylvania Fish and Boat Commission (PA FBC) commented that
sections 89.34, 89.35 and 89.36 are discussed in the amendment but only
in relation to water supply protection. PA FBC believes these sections
need to be further revised to include the protection of surface and
groundwater to better protect the streams in areas of high extraction
mining.
PA FBC is correct in its assertion that sections 89.34, 89.35, and
89.36 were modified to provide additional protection for water
supplies. In submitting this amendment, Pennsylvania was responding to
the federal rules regarding restoration or replacement of water
supplies. These federal rules do not provide additional protection from
subsidence to streams. As noted in our response to comments by FWS,
Pennsylvania's amendment does not alter the minimum federal
requirements with respect to streams.
PA FBC also commented on Pennsylvania's Technical Guidance Document
(TGD 563-2000-655) regarding the definition of a perennial stream. PA
FBC's comments were similar to the comments provided by FWS on the same
subject. Please see the FWS comments regarding TGD 563-2000-655.
OSM solicited, but did not receive, comments from the Pennsylvania
Historical and Museum Commission, Bureau of Historic Preservation.
Public Comments
Public comments were received in writing and orally at the public
hearing held in Washington, Pennsylvania on October 13, 1998. Sixteen
people spoke at the public hearing. Additionally, we received written
public comments, before and after the public hearing, from three
citizen's groups, and seven private citizens. We also received comment
letters from an industry group and four coal companies. In response to
our reopening of the public comment period on December 8, 2000, we
received comments from a citizen's group and an industry group. We have
organized these comments and our response by the section of the BMSLCA
or the regulations they pertain to. We also have a section of general
comments that did not pertain to any specific portion of the BMSLCA or
the regulations.
One commenter incorporated by reference OSM's November 12, 1996 and
November 22, 1996 preliminary comments to Pennsylvania on Act 54 and
Pennsylvania's not yet finalized regulations. Pennsylvania's
regulations were adopted by the Pennsylvania Environmental Quality
Board on March 17, 1998, and published in the Pennsylvania Bulletin on
June 13, 1998. On July 29, 1998, pursuant to 30 CFR 732.17(b),
Pennsylvania submitted Act 54 and the finalized regulations to OSM for
its review. Accordingly, the preliminary issues raised by OSM in the
1996 letters were either addressed in the two ``issue letters'' sent by
OSM to Pennsylvania requesting clarification of numerous issues
[letters dated June 21, 1999 (Administrative record number PA 841.32)
and June 23, 2000 (Administrative record number PA 841.40)]
or
satisfied by either changes in Pennsylvania's regulations or by
Pennsylvania's explanations that were submitted as part of the July
29th submission. Pennsylvania responded to the first issue letter on
June 1, 2000 (Administrative record number PA 841.39) and to the second
on July 18, 2000 (Administrative record number PA 841.41). The
substance of the issue letters and Pennsylvania's responses are
discussed in the findings portion of this final rule. Therefore, OSM is
not addressing its own preliminary 1996 comments on a separate basis.
Comments on the changes to the BMSLCA:
Section 5.1(a)(1)
Commenters noted that section 5.1(a)(1) of the BMSLCA only requires
operators to provide an alternate water source that adequately services
in quantity and quality the premining use or the foreseeable uses of
the supply, which is contrary to the provisions of section 720(a)(1) of
SMCRA. The commenters believe SMCRA requires restoration of water
supplies to premining quality and quantity, which could be a higher
standard than the use-based standard of the BMSLCA.
Other commenters voiced similar concerns and added that
Pennsylvania's ``adequate for use'' standard, in many cases, would not
meet state or federal requirements to maintain the value and use of the
land.
The Director has found that Pennsylvania's program regarding the
quality of replacement water supplies is as effective as the federal
regulations. For an explanation of the reasons behind the Director's
decision, please see the discussion regarding section 5.1(a)(2).
Regarding quantity, the Director has conditionally approved
[[Page 67052]]
Pennsylvania's program to insure that replacement supplies and delivery
systems will be of a caliber that will maintain the value and
reasonably foreseeable uses of the land.
Section 5.1(a)(2)
Commenters contended that this section sanctions replacement of a
marginally acceptable water quality, rather than requiring replacement
of equivalent quality, by requiring that the water meet minimum
standards defined under the Safe Drinking Water Act.
The Director believes that with respect to water quality, an
equivalency determination can be made in terms of suitability for
particular uses rather than requiring that the chemical composition of
the replacement supply be identical to that of the premining supply. As
a result, Pennsylvania's program will insure that water quality of
replacement supplies will be equivalent to premining supplies. For more
information on the Director's decision to approve this portion of the
amendment please see the discussion of section 5.1(a)(2) of the BMSLCA
in the Director's findings.
Section 5.1(a)(3)
Commenters alleged that when mining damages investor-owned water
supply systems, the added costs of repairs are passed to water users in
the form of higher water bills. The commenters believe that operators
who cause the damage should pay for the repair of utility lines.
OSM does not agree with this comment. The federal regulation at 30
CFR 817.180 regarding utilities only requires that underground mining
activities be conducted in a manner that minimizes damage, destruction
or disruption of services provided by utilities. The rules do not
require operators to reimburse utilities for damage to utility lines.
Section 5.1(b)
Commenters noted that this section eliminates a mine operator's
responsibility for replacement of damaged water supplies if a claim of
contamination, diminution or interruption is made more than two years
after the supply has been adversely affected. The commenters believe
this section is contrary to SMCRA because there is no limitation of
action provided under federal law, and that section 509 of SMCRA
requires a performance bond that extends for a minimum of five years
after reclamation. The commenters believe that the federal rules
indicate that wherever and whenever it is shown mining activity caused
the loss, the operator is responsible for replacing it.
OSM agrees that this section is less stringent than SMCRA. For the
reasons discussed in the finding for section 5.1(b), this section has
not been approved by the Director.
Section 5.2
One commenter referenced the November 12, 1996 comments from OSM to
Pennsylvania. As stated earlier, OSM is not addressing its own
preliminary 1996 comments on a separate basis.
Section 5.2(a)(1)
Commenters noted that this section obligates citizens whose water
supply has been damaged to first contact the operator. The commenters
were concerned with the part of section 5.2(a)(1) requiring the
operator to investigate reported water losses with reasonable diligence
because there is no time frame limiting how long the company can take
to conduct the investigation nor does the section define reasonable
diligence.
The Director recognizes the commenters' concerns regarding timely
investigation of citizen complaints and has approved the portion of
section 5.2(b)(2) dealing with inspection to the extent that
Pennsylvania recognizes that the approved program may require a more
timely response to complaints than that required by this section.
Additionally, the Director believes the amendment required of section
5.1(a)(1) of the BMSLCA responds to the commenters' concerns regarding
the prompt replacement of all adversely affected water supplies.
Section 5.2(b)(2)
A commenter contended that this section allows up to 45 days for
investigation of a claim of water loss, which contrasts with the
federal law requiring prompt replacement of water supplies. OSM does
not fully agree with this comment. In this section, Pennsylvania has
placed a cap on the length of time an investigation may continue. There
is no federal requirement limiting the length of time of
investigations. As noted in the approval of this requirement, the
Director is approving this portion of section 5.2(b)(2) to the extent
that Pennsylvania recognizes that the approved program may require a
more timely response to complaints than that required by this section.
A commenter also claimed that this section is not as effective as
the federal regulations because it allows up to three years for
permanent water supply replacement whereas the federal law defines
prompt replacement as no longer than two years. For the reasons
discussed in the finding for section 5.2(b)(2), the Director also
agrees that this is less effective. The time frames for water supply
replacement in the preamble to the federal regulations (60 FR 16727)
are ``* * * intended to assist regulatory authorities in deciding if
water supplies have been `promptly' replaced.'' The guidance indicates
a permanent water supply should be provided within two years. Because
section 5.2(b)(2) of BMSLCA can allow three years to pass before PADEP
is required to issue orders for replacement, the Director has not
approved the phrase in this section that reads, ``* * * where the
contamination, diminution or interruption does not abate within three
years of the date on which the supply was adversely affected.''
A commenter further alleged that it is unclear whether the term
``orders'' included in section 5.2(b)(2) contemplates an enforcement
order. The Director has found that the Pennsylvania program adequately
defines the orders that can be written in response to violations.
Section 5.2(b)(2) describes the circumstances that may result in an
order, but the approved program already defines the types of orders
that Pennsylvania will issue. It is unnecessary to restate the types of
orders that can be issued in this section.
Section 5.2(d)
One commenter noted if a landowner fails to allow access for a
premining survey, and the landowner has been advised of the rights
established by sections 5.1 and 5.3, the operator can escape liability
where damage occurs unless the injured party has baseline data relative
to the affected water supply. The commenter believes that this section
limits the evidence that a water supply user or landowner can introduce
in a manner that is improper and inconsistent with federal law. The
commenter also asserted that it improperly shifted the burden of
collecting hydrologic data to the landowner, that there was inadequate
notice, and that the 10 day access period was too short.
Another commenter averred that this section's response to
landowners who refuse operators requests to conduct a premining
inspection is punitive and not in accordance with the federal
regulations.
OSM agrees with these comments. The Director is not approving a
portion of section 5.2(d) regarding burden of proof. This action will
respond to the commenter's concerns that this section
[[Page 67053]]
will limit the evidence a water supply user or landowner can introduce
to prove the effects of subsidence on a water supply. For a full
discussion of the specific language and the reasons for not approving
part of section 5.2(d), please see the discussion of that section
earlier in this rulemaking.
Section 5.2(e)
Commenters contended that sections 5.2(e)(1), (2) and (3) each
attempt to release an operator of responsibility for water loss in ways
that are improper under federal law. The commenters believe that
subsection (1), which relieves an operator from liability where the
premining survey shows that the contamination, diminution or
interruption existed prior to mining, appears to grant conclusive
effect without allowing inquiry into whether the survey is accurate or
sufficient to demonstrate a lack of causation.
The Director does not agree that this section limits the rights of
landowners to challenge whether the survey is accurate or sufficient to
demonstrate a lack of causation. Pennsylvania responded to a similar
question in the preamble to its regulations regarding subsidence damage
repair and water supply replacement (28 Pa.B. 2776). Pennsylvania noted
that if a landowner disagreed with the premining survey results, he or
she could arrange to have a certified laboratory conduct an independent
survey at their own expense or ask PADEP to conduct a review of the
results of the mine operator's survey and conduct additional testing,
if necessary. Clearly, Pennsylvania envisioned that the results of
premining sampling could be challenged.
The commenters further noted that subsection (2) relieves the
operator of liability after a three-year lapse of time after mining.
The commenters were concerned because the time of mining is not
directly related to the timing of water loss, and this fails to
consider that subsidence may not occur immediately, or that other
factors may contribute to the water loss. The commenters further stated
that the three-year limit is also arbitrary and inconsistent with the
federal act which reserves jurisdiction and allows reassertion of
jurisdiction at any time.
Finally, a commenter maintained that bond release should not
terminate operator liability.
OSM generally agrees with the commenters. The Director has not
approved this section because allowing an operator to be relieved of
the liability to restore or replace affected water supplies three years
after underground mining activities have ceased is inconsistent with
SMCRA and the federal regulations. For a complete discussion of our
reasons for not approving this section, see the discussion of section
5.2(e)(2).
With regard to the comment regarding bond release terminating
operator liability, we have found that this section of the BMSLCA does
not provide for termination of liability at bond release.
Finally, the commenters noted that subsection (3) appears to allow
the operator to avoid responsibility by identifying another cause for
the water loss. The commenters believed that OSM should seek an
attorney general's opinion that the law assures that where the operator
is partially or entirely responsible, state law imposes liability.
OSM did seek and receive a legal opinion from Pennsylvania
regarding assignment of liability when two or more operators are
responsible for water degradation, diminution or interruption. The
Assistant Director for the Bureau of Regulatory Counsel wrote a
memorandum dated May 15, 2000 (Administrative Record No. PA 841.39
document number 2 of 4), in which he indicated that the General
Assembly's intent was to provide a remedy for water supplies affected
by underground mining. This section is to be construed to relieve an
operator of responsibility only where the contamination, diminution or
interruption occurred solely as a result of some cause other than
mining. Where mining is partly the cause of the contamination,
diminution or interruption, the mine operator will not be relieved of
the statutory obligation to restore or replace the affected water
supply. The Director found that this opinion effectively answered the
commenters' concerns.
Section 5.2(g)
Commenters alleged that section 5.2(g), which allows property
purchase as an alternative to water supply replacement, is inconsistent
with federal law because federal regulations require the operator to
demonstrate that a suitable water source is available and could be
feasibly developed. The commenters noted that the preamble to the
federal regulations at 60 FR 16727 states that the intent of EPAct is
that the current owner or successor could utilize the water if desired
in the future. The commenters believe that there is no opportunity
under the federal law for a company to avoid demonstrating that a
replacement supply could be developed even if a landowner waives
replacement.
Additionally, one commenter asserted that absent a demonstration by
the operator that water quality and quantity can be protected or
alternative supplies provided, a mining permit should not be issued.
OSM agrees with these comments. The Director has not approved
section 5.2(g) of the BMSLCA. As noted in the preamble of the federal
regulations on subsidence control (60 FR 16733), EPAct requires
replacement of water supplies affected by subsidence. Compensation in
lieu of replacement is not an option. The intent of the federal rules
is to provide a water supply for current and future landowners.
Compensation for a water loss or degradation will not allow water
supplies to be available for future use.
Additionally, the federal regulation at 30 CFR 784.20(b)(8)
requires subsidence control plans to contain a description of the
measures to be taken to replace adversely affected protected water
supplies if the presubsidence survey shows, or the regulatory authority
determines, that diminution, contamination or interruption could occur.
Thus, this section requires the permit application to contain
information on water supply replacement before the permit is issued.
With this information in the permit application, there would be no need
for compensation in lieu of replacement, since replacement supplies
must be designated before the permit is issued.
Section 5.2(h)
A commenter took exception with PADEP's role in providing advisory
opinions. The commenter noted that if it was PADEP's opinion a water
supply could be replaced, it should be replaced instead of allowing
operators to offer compensation in lieu of replacement.
OSM agrees that this section provides remedies to operators that
are inconsistent with the federal rules. The Director has not approved
this section because it is connected with section 5.2(g) that allows
compensation for damage to water supplies in lieu of replacement or
restoration. The Director found that section 5.2(h) is not self-
sustaining and is unenforceable without section 5.2(g). Therefore, it
is inconsistent with the requirements of SMCRA and the federal
regulations.
Section 5.3(c)
A commenter proposed that section 5.3(c), which provides landowners
and water users who pursue water replacement through the courts subject
themselves to the provisions in their deeds and leases, should be
removed from the BMSLCA. The commenter felt that this provision rules
out most citizen's rights to pursue justice in the
[[Page 67054]]
courts and overrides EPAct's requirement for water supply replacement
wherever underground mine operations damage or disrupt water supply.
The Director has found that section 5.3(c) is inconsistent with
section 720(a)(2) of SMCRA and the federal implementing rules to the
extent that any state law negates the requirements of, or provides less
protection than, EPAct. For a complete discussion of the matter, please
see the Director's decision with regard to section 5.3(c).
Section 5.4
A commenter claimed that section 5.4 fails to require permittees to
be responsible for subsidence damages in addition to operators and the
use of the term ``proximity'' in section 5.4 unreasonably restricts an
unqualified obligation to repair or compensate for material damage to
non-commercial buildings and dwellings and related structures.
OSM disagrees that section 5.4 fails to make permittees responsible
for damages in addition to operators. Under 25 Pa. Code 86.11(a) no
person may operate a mine without obtaining a permit. Section 86.11(b)
indicates that permits will be issued only to an operator. Since only
operators can obtain a permit, Pennsylvania's use of the term
``operator'' is as effective as the federal definition of ``permittee''
at 30 CFR 701.5, which defines the term to mean a person holding or
required to hold a permit to conduct surface coal mining and
reclamation operations.
OSM also disagrees with the commenter on the use of the term
``proximity.'' Section 5.4(a) of the BMSLCA extends the requirements of
compensation or restoration to damaged structures that overlie or are
in the proximity of the mine. OSM requested that Pennsylvania define
what was meant by the term ``proximity.'' Pennsylvania indicated that
it understands the term to mean the structures defined in this section
do not have to be directly above the mine workings in order to be
covered by repair or compensation requirements. The phrase recognizes
the fact that subsidence effects often extend outward from points where
coal mining activities occur. Pennsylvania noted that the phrase is not
interpreted to impose any specific distance limitations. The Director
accepted this explanation of section 5.4(a).
A commenter stated that the term ``building'' does not include
appurtenant structures and utilities annexed to those structures such
as sewer lines, etc.
OSM disagrees in part with the commenter's assertion that the term
``building'' does not include appurtenant structures and utilities
annexed to those structures such as sewer lines, etc. Pennsylvania's
regulatory definition of permanently affixed appurtenant structures
includes many of the structures that are within the definition of
occupied dwelling and structures related thereto that is found in the
federal regulations at 30 CFR 701.5. However, any structures that are
not permanently affixed to the ground, Pennsylvania refers to as
improvements. As noted in the findings regarding section 5.4, OSM
expressed concerns with Pennsylvania's position on improvements and the
same are addressed in the discussion thereof.
The same commenter noted that the requirement of ``prompt'' repair
or replacement is absent from section 5.4. It is further alleged that
this section fails to assure that the structure owner is paid the full
amount of the diminution in value resulting from the subsidence-related
damage. Additionally, the commenter contended that sections 5.4 and
5.5, through the use of time limits for filing claims, and agreements
on compensation amounts and repair, infringes on the rights of
landowners to prompt repair, replacement or compensation in full and to
an unqualified right to secure immediate state and/or federal
inspection of failures of the operators to provide compensation or
repair.
OSM agrees with the comment that Pennsylvania's program fails to
include a prompt standard for repair or compensation for subsidence
damage. The Director's decision with regard to this issue can be found
in the discussion of section 5.5(b).
OSM disagrees with the commenter that the section fails to assure
that the structure owner is paid the full amount of the diminution in
value resulting from the subsidence-related damage. As discussed in the
findings regarding section 5.4(a), the Director believes that this
section is consistent with SMCRA and the federal rules.
OSM agrees that the use of time limits for filing claims is less
effective than the federal rules. For a complete discussion of this
issue, see the Director's findings of this section.
OSM agrees in part that some agreements on compensation amounts or
repair are less effective than the federal regulation requirements. As
stated more fully in the Director's findings, if the agreements provide
for the same protection as SMCRA then they are approvable. However, if
the agreements provide for something less than what is required by
SMCRA, then they are less effective.
Finally a commenter stated that the BMSLCA should be changed to
include repair or compensation for damages to improvements to occupied
dwellings.
OSM agrees with this comment. The Director believes that the
changes required in this rulemaking to the definition of permanently
affixed appurtenant structures and to section 5.4(a)(3) of the BMSLCA
will satisfy the commenter's concerns.
Section 5.4 and 5.5
One commenter complained that mining companies only have to place a
$10,000 bond to begin to destroy homes and water quality.
To address bonding issues, the Director has required Pennsylvania
to submit an amendment to section 6 of the BMSLCA complying with 30 CFR
817.121(c)(5) which requires an adjustment of bond for subsidence
damage. This provision requires an increase in bonds for damage to
protected structures and water supplies if repair, compensation or
replacement takes longer than 90 days.
Another commenter contended that where a homeowner's survey or an
expert witness has found that damage to a structure was obviously
caused by mining, an operator should be required to repair or
compensate the landowner, even if no premining survey was completed.
OSM agrees that, under the federal program, the lack of a premining
survey does not limit an operator's liability for repair or
compensation. Accordingly, the Director has not approved the portions
of the BMSLCA that limit operator's liability in those cases.
Finally, a commenter maintained that private agreements must not be
allowed where they limit the protections provided in the federal
regulations.
OSM agrees with this comment. The Director has found that nothing
in the federal regulations prevents private agreements, however the
terms of an agreement cannot diminish the protections afforded by EPAct
and the federal regulations.
Section 5.6
One commenter stated that the BMSLCA needs to be changed to
prohibit mining agreements that allow less than full compensation for
repair of subsidence damage and water supply replacement. The commenter
alleged that industry's use of confidential agreements and high-
pressure tactics make homeowners feel they will be better off by
signing these agreements. The commenter claimed that although
[[Page 67055]]
OSM requires full compensation, homeowners are discouraged from
bringing these agreements to OSM and that Pennsylvania looks at
agreements as a credible resolution and does not normally interfere
with them.
As noted in the discussion of section 5.6, the Director approved
the use of agreements only to the extent that any release in a
voluntary agreement does not limit the protections of EPAct. There is
nothing in the federal regulations prohibiting agreements between
landowners and mining companies, however any agreement that provides a
lesser amount of protection than is afforded by the federal regulations
would not preclude enforcement of the regulatory requirements.
Section 5.6(c)
One commenter claimed that structures covered by requirements to
repair or compensate for subsidence damage under federal law are exempt
under Act 54. The commenter felt that agreements homeowners entered
into after April 27, 1966, but prior to the effective date of Act 54,
which provide for a waiver or release of the duty to repair or
compensate, should not be valid.
OSM agrees with the commenter's concerns involving agreements made
after April 27, 1966, but before the effective date of Act 54. The
Director has not approved the last two sentences of this portion of the
amendment. These sentences state, ``Nothing herein shall impair
agreements entered into after April 27, 1966, and prior to the
effective date of this section, which, for valid consideration, provide
for a waiver or release of any duty to repair or compensate for
subsidence damage. Any such waiver or release shall only be valid with
respect to damage resulting from the mining activity contemplated by
such agreement.'' The Director found these statements could validate
agreements that are not as protective as the federal regulations and
therefore has not approved the language.
Section 6
The Pennsylvania Coal Association (PCA) commented on financial
guarantees for subsidence repair. PCA indicated that although the
proposed program amendment does not require adjustment of the
performance bond amount if subsidence causes damage to protected
structures, bond adjustment is authorized by Pennsylvania's primacy
regulations at 25 Pa. Code 86.152. PCA notes that while Act 54 does not
require adjustment of the bonds for subsidence damage, it mandates use
of an escrow mechanism to assure funds are available to mitigate
damage. Operators are required to deposit funds in the escrow within
six months if they wish to contest the repair obligations, or have not
complied with the obligations. PCA asserts that the escrow option
guarantees the repair or compensation obligations of section 720 of
SMCRA.
Other commenters presented the opposing view that Pennsylvania's
current bonding system is not sufficient to assure correction of
subsidence-related damage. One commenter opined that the longwall
mining regulations must be strengthened to shift the balance of power
from the coal companies to a middle ground between coal operators and
homeowners. The commenter discussed the disruption subsidence from
longwall mining takes on personal and professional lives and felt that
the bond posted should be equal to the fair market value of the home.
Two other commenters indicated that Pennsylvania has no provision
for bonding for water loss and, in practice, requires only a $10,000
bond for structure repair. The commenters further claimed that
homeowners need to be assured that funds are available for complete
repairs and for water supplies, which could mean extensive new water
lines in some areas.
We agree with the commenter that Pennsylvania does not require a
bond for water loss. Additionally, as we noted in our discussion of
section 6 of Pennsylvania's statute, the bond amount at the time of
application may not be sufficient to repair or compensate for
structural damage if the bonds are to be used to reclaim the site as
well. While the escrow payments may adequately provide for correction
of damage, they are not required unless the operator appeals an order.
Finally, we do not agree with PCA's assertion that 25 Pa. Code
86.152 requires adjustment of bond for subsidence damage. The provision
at that section is discretionary on the part of Pennsylvania.
Accordingly, there are no provisions in the Pennsylvania program that
require the submission of additional bond in the event subsidence
damage is not corrected. The Director, therefore, has required
Pennsylvania to amend its program to include bonding provisions as
effective as those found in 30 CFR 817.121(c)(5).
Section 9.1(b)
A commenter stated that the term ``minimize'' should mean a
reduction in damage to the greatest extent possible. The commenter
believes PADEP uses the term ``minimize'' to mean a reduction of damage
in any amount. The commenter further indicated that damage should be
minimized to a different level than the irreparable damage level of the
Pennsylvania program.
OSM agrees that damage minimization must take place. The federal
regulations at 30 CFR 817.121 require minimization of material damage
to the extent economically and technically feasible except in certain
circumstances. The steps to be taken to minimize damage would vary from
case to case and would also depend on a judgment of the economic and
technical circumstances surrounding the measures. As a result, the
commenter's concern on PADEP's interpretation of the level of
minimization would be largely dependent on site-specific circumstances
and would have to be evaluated in that respect.
OSM agrees that Pennsylvania must minimize material damage to
certain structures. The Director is requiring Pennsylvania to amend its
program to require minimization of material damage.
Section 18.1(d)
A commenter contended that this section could be read to prevent
data collection required to meet permitting requirements, rather than
merely to restrict data collection solely to augment the analysis of
deep mine impacts on water resources. The commenter felt that the final
phrase, which refers to data collection outside of the context of this
section, implies that the language of section subsection (d) is
intended to have broader application.
OSM does not agree with the commenter's interpretation of this
section. This section requires a compilation of information from deep
mine permit applications, monitoring reports and other data submitted
by operators, from enforcement actions and from any other appropriate
source. As stated on Pennsylvania's website, the purpose of section 18
is to require Pennsylvania to ``assess the surface impacts of
underground mining on buildings, water supplies and streams every five
years.'' See, www.dep.state.pa.us/dep/deputate/minres/bmr/act54/
index.html 
. This section does not seek to limit information already
required by the Pennsylvania program. It only requires a compilation of
information already required to be submitted. Subsection (d) does not
allow PADEP to request additional information (except for water loss
incidents or claims) to fulfill these provisions. While there is no
direct corresponding federal requirement to this section, the Director
found that this
[[Page 67056]]
portion of the amendment does not limit the rights and protections of
the federal requirements.
Comments on regulation changes at 25 Pa. Code Chapter 89
Section 89.5(a), Definition of De Minimis Cost Increase
One commenter stated that this section allows the operator to forgo
payment of a de minimis cost, which is less than 15% of the operating
and maintenance costs or less than $60 a year. The commenter maintained
that this is a significant sum to many rural homeowners when paying
over a 20 year period and that the federal rules make no such
exemption.
OSM agrees with the comment. The Director has found that passing
along the cost of a treatment system, even if the increased cost is de
minimis, does not make a landowner or water user who has experienced
water supply problems as a result of subsidence whole. The federal
regulations require operators whose mining operations caused water
supply contamination, interruption or diminution to replace or restore
water supplies, including the cost of treatment if necessary.
Section 89.141(d)
A commenter noted that this section requires only a description of
measures to correct damage to homes--allowing any amount of damage to
homes short of irreparable damage, which PADEP must predict. The
commenter pointed out the requirements to minimize damage found at 30
CFR 784.20 and 30 CFR 817.121(a)(1) and (2). The commenter felt that
OSM must find sound methods for minimizing damage and use the
dictionary meaning of minimize, which is to ``make the least of '' not
just lessen or moderate.
OSM agrees that Pennsylvania's program does not contain damage
minimization requirements below the irreparable damage level. The
Director is requiring Pennsylvania to amend its program to require
operators to minimize material damage to homes and non-commercial
structures to the extent technologically and economically feasible.
Section 89.142a(f)(1)(ii)
One commenter asserted that non-commercial buildings not used by,
or accessible to, the public are covered in the federal rules at 30 CFR
817.121(c) but not covered in Pennsylvania's program.
OSM does not agree with the comment regarding protection of non-
commercial buildings. Pennsylvania's definition of non-commercial
buildings is substantially the same as the federal definition at 30 CFR
701.5 and section 89.142a(f)(1)(ii) provides protection to non-
commercial buildings. More information on this subject can be found in
the discussion of section 5.4(a)(1) of the BMSLCA.
Section 89.142a(f)(1)(iii)
A commenter noted that this section provided some exemptions to
protections found in federal regulations because it does not provide
protection for improvements made after Act 54's effective date or date
prior to the operator's next permit renewal. The commenter also stated
that the federal rules have a rebuttable presumption of subsidence-
related damage for homes with the 30-degree angle of draw from
underground mining activities, but Pennsylvania's regulations do not
contain a similar presumption for damages to structures.
OSM agrees with the comment regarding limitations on protections
being dependent on the date of the operator's next permit renewal. As
noted in the discussion in this rulemaking of section 5.4(a)(3) of the
BMSLCA, the Director did not approve the phrase ``improvements in place
on the effective date of this section or on the date of the first
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the
boundary of the entire mine as depicted in said application.''
OSM does not agree with the comment regarding angle of draw. As
noted elsewhere in this rulemaking, OSM suspended its rules regarding a
rebuttable presumption of causation by subsidence (30 CFR
817.121(c)(4)(i) through (iv)) in a December 22, 1999, Federal Register
notice (64 FR 71652). As a result of the suspension, Pennsylvania does
not need to include a counterpart to this regulation in its program.
Section 89.142a(g)
One commenter alleged that Pennsylvania does not intend to hold
coal operators responsible for damage to investor-owned utilities, an
exemption not included in the federal rules at 30 CFR 817.180. The
commenter felt that this lack of conformity to the federal rules would
result in higher utility costs to homeowners.
OSM does not agree with this comment. The provision of section
89.142a(g)(1) protects all structures protected by the federal
regulations at 30 CFR 817.180. The commenter is apparently referencing
remarks made by Pennsylvania in the preamble to the regulations on
subsidence damage repair and water supply replacement. In the preamble
(28 Pa.B. 2767), Pennsylvania noted that with respect to the definition
of the term ``water supply'' it did not want to include language in
that definition that could be interpreted to include investor-owned
water transmission utilities. Pennsylvania indicated that the preamble
discussion was made to illustrate the difference between connections
from a well or spring to a residence and connections made to a water
main that is part of a public water supply system. Connections from a
well or spring are permanent affixed appurtenant structures that must
be repaired by the mine operator if damaged. Damage to a water main and
that part of the connecting piping that is owned by the water company
would be covered under Pennsylvania regulation section 89.142a(g)
relating to protection of utilities.
However, even though section 89.142a(g) protects the same types of
utilities as the federal program it does not provide the same level of
protection as the federal program. Pennsylvania protects utilities from
underground mining while the federal program protects utilities from
underground mining activities. The federal definition of underground
mining activities includes more activities than the Pennsylvania
definition of underground mining, which only pertains to removal of
coal. The federal definition of underground mining activities found at
30 CFR 701.5 includes a combination of surface operations incident to
underground extraction of coal as well as underground operations. This
would include construction, use, maintenance, and reclamation of roads,
above-ground repair areas, storage areas, processing areas, shipping
areas, areas upon which are sited support facilities including hoist
and ventilating ducts, areas utilized for the disposal and storage of
waste and areas on which materials incident to underground mining
operations are placed.
Another commenter suggested that the word ``prevent'' should be
substituted for the word ``minimize.'' Section 89.142a(g) requires
underground mining to minimize damage, destruction or disruption of
utilities. The federal rules at 30 CFR 817.180 do not require
prevention of damage, but rather minimization, the same as the
Pennsylvania rule. Therefore, OSM does not agree that the word
``minimize'' should be changed.
[[Page 67057]]
Section 89.142a(h)
A commenter claimed that Pennsylvania's program does not provide
for the premining monitoring of flow in perennial streams, which makes
it impossible to determine adverse impacts by mining operations since
no standard for comparison exists.
OSM does not agree with this comment. The approved Pennsylvania
program at 25 Pa. Code 89.34 requires operators to include in their
operation plan a description of streams, including quantitative
seasonal flow conditions. This information could be used to determine
any adverse impacts to perennial streams due to underground mining
activities.
Section 89.144a
The Pennsylvania Coal Association (PCA) commented on the provisions
of section 89.144a(a)(1) regarding an operator's relief from
responsibility for repair or compensation for damages to structures
when a landowner refuses access to an operator for conducting a
premining survey. PCA contends there is no distinction between the
requirements of the federal regulations where a landowner loses a
rebuttable presumption of causation if access to an operator for a
premining survey is denied and the state regulations that relieve an
operator from repair or compensation requirements when access is
denied. PCA states a landowner may be able to prove causation of
subsidence damage, but that establishing the chain of causation would
require extensive technical data and expert testimony. PCA further
indicates that without a premining survey, there is no baseline
information for determining an operator's liability, which is
especially important in Pennsylvania given the extensive history of
underground mining that makes damage from subsidence more likely than
other states. Finally, PCA claims this portion of the program amendment
should be approved because it is as effective as the federal
regulations, since both the state and federal regulations are designed
to encourage landowners to cooperate in premining surveys and to
facilitate collection of baseline information. (Note: CONSOL,
Pennsylvania Services Corporation, Maple Creek Mining, Inc. and UMCO
Energy, Inc. submitted letters endorsing this and all other comments
made by PCA).
OSM suspended the regulations (30 CFR 817.121 (c)(4)(i) through
(iv)) regarding a rebuttable presumption in response to a challenge by
the National Mining Association (64 FR 71652). As a result, 30 CFR
817.121 (c)(4)(iii), which formerly stated that landowners would lose
the rebuttable presumption if they refused to let operators on their
property to conduct a premining survey, is no longer valid. OSM also
suspended the portion of 30 CFR 784.20(a)(3) that required a specific
structural survey of all EPAct protected structures. At this time,
there is no requirement that a structural survey be conducted or that a
rebuttable presumption will be applied to determine if underground
mining is responsible for subsidence damage to structures. However, the
federal rules do require that owners of structures damaged by
underground mining be compensated for the damages or that the damages
be repaired by the operator. The regulations do not relieve an operator
from the obligation of repair or compensation for damages caused by
subsidence from underground mining. We acknowledge the difficulty of
assessing the extent of subsidence damage without a presubsidence
survey. But, exempting an operator from liability for repair or
compensation for damages because a landowner does not allow access to
the property for a premining survey does not comply with the intent of
the EPAct provisions. As more fully discussed in our finding for 5.4(c)
of the BMSLCA, premining damage surveys do not have to be conducted by
an operator to be valid. The surveys can be conducted by independent
parties hired by the landowners or even by the landowners themselves.
This information can then be used by the regulatory authority to set
the amount of compensation or assess the completeness of repairs. As
stated earlier, in Pennsylvania's scenario, the homeowner would have no
relief under BMSLCA even though he had relevant information that showed
causation. Because the Pennsylvania program allowed relief from
liability while the federal program does not contain a similar
provision, we found that this provision of the Pennsylvania program is
not as effective as the federal requirements.
Section 89.144a(a)(1)
One commenter noted that Pennsylvania's rules allow operator's to
be relieved of liability for damage repair or compensation if the
operator was denied access to a landowner's property for pre- or post-
mining surveys. The commenter argued that if the homeowner or PADEP has
credible evidence that mining caused the damage, he should not be
punished for refusing operator surveys of his property.
OSM agrees with the commenter. The Director is not approving this
provision because the federal rules requiring repair or compensation
for damage to non-commercial buildings and dwellings and related
structures [30 CFR 812.121(c)(2)]
does not provide exception for any
reason when an operator's underground mining operation has caused
subsidence damage.
Section 89.145a(a)(1)
One commenter indicated that Pennsylvania's regulations require
underground miners to take a premining survey prior to mining within a
1,000 feet of the water supply. The commenter expressed concern because
water supply damage could occur from mining before the 1,000-foot
distance from a home is reached.
OSM agrees with the commenter's concerns. The federal regulations
at 30 CFR 784.20(a)(3) regarding presubsidence surveys require all
drinking, domestic, or residential water supplies to be surveyed at the
time of application. As noted in the Director's decision above, the
Director is not approving the provision that allows for water supply
surveys to be delayed until mining advances within 1,000 feet of a
supply and is requiring Pennsylvania to amend its program to require
permittees to submit the information required by 25 Pa. Code
89.145a(1)(i)-(v) that is necessary to meet the provisions of 30 CFR
784.20(a)(3) at the time of the application for all existing drinking,
domestic, or residential water supplies.
Section 89.152(a)(2)
PCA commented on subsection (2) that provides that an operator can
seek relief from responsibility for water supply replacement or
restoration if the contamination, diminution or interruption is due to
underground mining activities that occurred more than three years prior
to the onset of water supply contamination, diminution or interruption.
PCA noted that the operator is required to affirmatively prove all of
the elements of this defense. The Pennsylvania Environmental Quality
Board has interpreted this defense as not arising until three years
after the mine has closed and all reclamation is complete. PCA contends
this time period is long enough that it should cover all water supplies
affected by underground mining. PCA further argued that since
Pennsylvania's program provides for a rebuttable presumption that water
supplies have been impacted within a thirty-five degree angle of draw,
many water supplies will be replaced without
[[Page 67058]]
any proof on the part of the landowner. Even after three years have
elapsed, the burden remains on the mine operator to affirmatively prove
the elements of the defense. PCA proposes that for these reasons, the
Pennsylvania program is more effective in some regards and no less
effective than the federal regulations.
The Director agrees with PCA's contention that using the angle of
draw in determining operator liability is an effective tool to assist
regulators in requiring restoration or replacement for those supplies
located within the angle of draw. However, the regulation could allow
operators to be relieved from liability for replacement of some water
supplies whether or not they are within the angle of draw, if more than
three years elapsed after mine closing before the water supply is
affected. When promulgating the federal regulations requiring
replacement or restoration of water supplies, OSM indicated that even
in cases where the landowner did not need a restored or replaced water
supply to meet the postmining land use, the permittee would still be
required to demonstrate the availability of a water source equivalent
to premining quantity and quality so that the current owner or his or
her successor could utilize the water if desired in the future (60 FR
16727). In making this statement, OSM envisioned that water supplies
would be available under all circumstances for both present and future
uses. While under section 25 Pa. Code 89.152(a)(2), Pennsylvania has
left open the possibility that some water supplies will not replaced or
restored, the federal regulation intended restoration or replacement of
all water supplies without exception. As more fully discussed in the
findings for 5.2(e)(2) of BMSLCA and 25 Pa. Code 89.152(a)(2), which
are incorporated herein, the Director has not approved section 25 Pa.
Code 89.152(a)(2).
Another commenter asserted that an operator does not have to
replace a water supply if the loss occurred more than three years after
the mining ceased and that the federal rules do not provide for this
exemption. As stated above, OSM agrees.
Section 89.152(a)(4)
PCA commented on the provisions of this section that provide that
an operator will not be liable for water supply replacement if the
claim is made more than two years after the supply has been adversely
affected. PCA argued that in the case of the two-year statute of
limitations, the state has adopted an appropriate limitations period
from existing state law. The two-year period is the same as that
provided for common law water rights claims. PCA contended that federal
law would likely assume the same limitations period and cited
DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151,
158 (1983) in support of its position. PCA indicated that this case
provides that in the absence of an express limitations period in
federal law, the analogous provision from state law should be adopted.
Because there is no statute of limitations in SMCRA or EPAct, nor is
any apparent federal policy served by a different federal limitation
period, PCA asserted that the two-year period of this regulation is
appropriate.
As discussed more fully in our finding regarding this section, we
disagree that any statute of limitations is applicable. Additionally,
the applicability of the two-year statute of limitations (generally
used for torts) for water replacement has been rejected by the
Commonwealth Court of Pennsylvania in Carlson Mining Company v.
Department of Environmental Resources, 639 A.2d 1332, 1337 (1994). In
Carlson, a coal company argued that Pennsylvania's funding mechanism
for increased water operation and maintenance costs constituted damages
under tort law. The court disagreed, stating that a ``water supply
replacement order is not a civil action based on a tort; it is based on
the Commonwealth's police power.'' Id. at 1337. While this case
involved a surface coal mining operation, OSM believes that the
rationale is applicable to underground coal mining operations since any
operator who refuses to replace a water supply covered under the
provisions of Act 54, would also be issued an order by Pennsylvania.
See, 5.2(a)(3) and 5.2(b)(2) of the BMSLCA. Therefore, based on our
findings, the Director has not approved section 89.152(a)(4).
Another commenter contended that this section was contrary to the
federal rules. As stated above, OSM agrees.
Section 89.152(a)(5)
PCA commented on this provision that allows compensation to
landowners in lieu of water supply replacement if an affected water
supply is not replaced within three years. PCA claims this option would
be rarely used but would give operators and landowners flexibility in
dealing with a situation where restoration of water supplies is
difficult. PCA proposes that Pennsylvania's regulations generally
obligate operators to provide water replacement, but provide fair and
reasonable provision for where circumstances make permanent restoration
of affected water supplies impossible.
Finally, PCA noted that the buy out provision would not alter a
mine operator's obligation to identify the availability of an
alternative water source.
The Director does not agree with the comments. In the preamble to
the federal regulations, OSM responded to a commenter with a similar
viewpoint, i.e., that compensation be available as an option for those
limited circumstances where an impacted supply cannot be restored (60
FR 16733). In response, OSM stated, ``[t]he terms of the Energy Policy
Act unequivocally require replacement. Further, OSM does not anticipate
that underground mining operations will be unable to comply with this
statutory mandate. For example, if the permittee is unable to restore a
spring or aquifer, the permittee should still be able to provide water
from an alternative source, such as a public water supply, or by
pipeline from another location.'' The Director has not approved section
89.152(a)(5) because it provides compensation rather than restoration
or replacement as required by federal regulations and SMCRA.
Another commenter stated that 25 Pa. Code 89.152(a)(5)(ii) provides
for voluntary agreements and payments instead of replacement of a water
supply, which is required by the federal rules. OSM agrees for the
reasons stated above.
PCA also commented on financial guarantees for subsidence repair.
PCA contended that although the proposed program amendment does not
require adjustment of the performance bond amount if subsidence causes
damage to protected structures, bond adjustment is clearly authorized
by Pennsylvania's primacy regulations. PCA noted that while Act 54 does
not require adjustment of the bonds for subsidence damage, it does
mandate use of an escrow mechanism to assure funds are available to
mitigate damage. Operators are required to deposit funds in the escrow
within six months if they wish to contest the repair obligations, or
have not complied with the obligations. PCA stated that the escrow
option guarantees the repair or compensation obligations of section 720
of SMCRA.
Other commenters presented the opposing view that Pennsylvania's
current bonding system is not sufficient to assure correction of
subsidence related damage. One commenter asserted that the longwall
mining regulations must be strengthened to shift the balance of power
from the coal companies to a middle ground between
[[Page 67059]]
coal operators and homeowners. The commenter discussed the disruption
subsidence from longwall mining exacts on personal and professional
lives and stated that the bond posted should be equal to the fair
market value of the home.
Two other commenters indicated that Pennsylvania has no provision
to bond for water loss and, in practice, requires only a $10,000 bond
for structure repair. The commenters further claimed that homeowners
need to be assured that funds are available for complete repairs and
for water supplies, which could mean extensive new water lines in some
areas.
OSM agrees with the comment regarding the federal requirement for
submission of additional bond in the event subsidence related material
damage occurs to protected land, structures and facilities or when
contamination, diminution, or interruption occurs to protected water
supplies.
The Director has required Pennsylvania to amend its program to
include bonding provisions as effective as those found in 30 CFR
817.121(c)(5). Please see the Director's findings regarding section 6
of the BMSLCA for more information.
One commenter opined that if a coal operator lacks the means to
post an adequate subsidence bond, then the operation should not be
permitted.
OSM does not agree with this comment. The federal requirements for
posting additional bond come into play only after subsidence damage has
occurred and ninety days have elapsed without the operator completing
the required repair, compensation, or replacement. The ninety days can
be extended to one year under certain circumstances. There is no
federal requirement for operators to demonstrate that additional bonds
can be obtained prior to subsidence occurring. Even if premining
surveys determine that subsidence damage is likely to occur at the time
of the application, operators will not need to increase their bond if
the repair, compensation or replacement occurs within the allotted time
frames.
General Public Comments
A general comment was made regarding imminent danger. A commenter
stated that the threat of danger rather than the manifestation of the
damage should be sufficient to suspend operations in imminent danger
situations.
OSM believes the commenter's concern is addressed by section 9.1(a)
of the BMSLCA. This section requires that if the Department determines
and notifies a mine operator that a proposed mining technique or
extraction ratio will result in subsidence that causes an imminent
hazard to human safety, the technique or extraction ratio will not be
permitted unless the mine operator, prior to mining, takes measures
approved by the Department to eliminate the imminent hazard. The
Director found that this section is consistent with 30 CFR 817.121(f),
which requires the suspension of underground mining if imminent danger
is found to inhabitants of urbanized areas, cities, towns or
communities.
A commenter also indicated that OSM should require Pennsylvania to
mandate that the protection of 522(e)(5) of SMCRA, regarding
prohibiting mining within 300 feet of an occupied dwelling unless
waived by the owner, should be applied to underground mining.
On December 17, 1999, OSM published a rule in the Federal Register
(64 FR 70838) in which we stated that we interpret sections 522(e) and
701(28) of SMCRA and the implementing rules to provide that subsidence
due to underground mining is not a surface coal mining operation.
Subsidence, therefore, is not prohibited in areas protected under the
Act. Neither subsurface activities that may result in subsidence, nor
actual subsidence, are prohibited on lands protected by section 522(e).
During the public hearing several commenters expressed
dissatisfaction with the longwall mining process in general because of
the damage subsidence causes to homes and water supplies. The Director
notes that one of the purposes of SMCRA as stated at section 102(k) is
to ``encourage the full utilization of coal resources through the
development and application of underground extraction technologies.''
The longwall mining process has been proven to be an efficient way to
insure the full utilization of coal resources. While damage to
structures and water supplies is a regrettable consequence of longwall
mining, the Energy Policy Act of 1992 was passed to insure that
compensation for, or repair of, damages to structures and replacement
of adversely affected water supplies was made. The Director finds that
longwall mining is permissible under SMCRA but that operators have an
obligation, as noted under the federal regulations, to minimize damage
and to repair or compensate landowners for damages that occur.
Two commenters voiced concerns about protection of utilities. One
of the commenters alleged that underground mining destroys natural gas
wells. The Director has specified that the federal regulations at 30
CFR 817.180 require all underground mining activities to be conducted
in a manner that minimizes damage, destruction or disruption of
services provided by oil, gas, and water wells, as well as additional
utility installations, unless the owner of the utility and the
regulatory authority approve otherwise. This regulation was not
modified by the passage of EPAct. Thus, impacts to gas wells are
allowed if approved by the regulatory authority and the well's owner.
The second commenter noted that a ruling made by Pennsylvania's
Environmental Hearing Board concluded that mere notification of intent
to longwall mine beneath a public utility installation is insufficient
to prevent damage to that installation. The commenter further noted
that the standard requiring prevention of damage to a public utility
was based on section 4 of the BMSLCA (52 P.S. 1406.4) that has since
been repealed, but that Pennsylvania's Environmental Quality Board
changed the word ``prevent'' to ``minimize'' without public input.
In our review of section 4 of the BMSLCA we found that, prior to
its repeal, it provided protection from subsidence to municipal
utilities or municipal public service operations (and other structures)
in place on April 27, 1966. The Director is approving the repeal of
section 4 because the federal regulations do not contain any provisions
for protection of structures and utilities in place as of April 27,
1966.
V. Director's Decision
Based on the findings above we are approving the amendments to the
Pennsylvania program, except as noted below.
BMSLCA
Section 5(b) (52 P.S. 1406.5(b)) is required to be amended to
change the reference to section 6(a) to section 6(b).
Section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)) is required to be amended
to require the prompt replacement of all water supplies.
Section 5.1(b) (52 P.S. 1406.5a(b)) is not approved.
At section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) the phrase, ``* * *
where the contamination, diminution or interruption does not abate
within three years of the date on which the supply was adversely
affected'' is not approved. Additionally this section is approved to
the extent that Pennsylvania recognizes that the approved program
regarding response to citizen complaints may
[[Page 67060]]
require a more timely response to complaints than that required by this
section.
At section 5.2(d) (52 P.S. 1406.5b(d)) the sentence stating,
``Wherever a mine operator, upon request, has been denied access to
conduct a premining survey and the mine operator thereafter served
notice upon the landowner by certified mail or personal service, which
notice identified the rights established by sections 5.1 and 5.3 and
this section, was denied access and the landowner failed to provide or
authorize access within ten days after receipt thereof, then such
affirmative proof shall include premining baseline data, provided by
the landowner or the department, relative to the affected water
supply,'' is not approved.
Section 5.2(e)(2) (52 P.S. 1406.5b(e)(2)) is not approved.
Section 5.2(g) (52 P.S. 1406.5b(g)) is not approved.
Section 5.2(h) (52 P.S. 1406.5b(h)) is not approved.
At section 5.2(i) (52 P.S. 1406.5b(i)) the phrase ``and of
reasonable cost'' is not approved.
Section 5.3(a) (52 P.S. 1406.5c(a)) is approved to the extent that
agreements to replace a water supply or provide an alternative water
supply meet the requirements established in the federal definition of
``replacement of water supply'' found at 30 CFR 701.5. This provision
is not approved to the extent it allows compensation in lieu of
restoration or replacement of affected water supplies.
Section 5.3(b) (52 P.S. 1406.5c(b)) is not approved to the extent
that section 5.3(a) (52 P.S. 1406.5c(a)) is not approved.
Section 5.3(c) (52 P.S. 1406.5c(c)) is not approved to the extent
any state law negates or provides less protection than EPAct.
Section 5.4(a) (52 P.S. 1406.5d) must be amended to require the
prompt repair and compensation for the structures protected under
section 720(a)(1) of SMCRA and 30 CFR 817.121(c)(2).
At section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) the phrase, ``in place
on the effective date of this section or on the date of first
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the
boundary of the entire mine as depicted in said application'' is not
approved.
Section 5.4(c) (52 P.S. 1406.5d(c)) is not approved.
Section 5.5(a) (52 P.S. 1406.5e(a)) is required to be amended to
make it clear that operators are responsible for repair or compensation
to landowners of structures damaged by subsidence from underground
mining operations.
Section 5.5(b) (52 P.S. 1406.5e(b)) is not approved.
Section 5.5(c) (52 P.S. 1406.5e(c)) is approved to the extent that
Pennsylvania recognizes the approved program regarding response to
citizen complaints may require a more timely response to complaints
than that required by this section. Additionally, the portion of 5.5(c)
that states, ``* * * within six months or a longer period if the
department finds that the occurrence of subsidence or subsequent damage
may occur to the same building as a result of mining,'' is not
approved. Finally, this section is required to be amended to insure
that any written damage determinations made by PADEP will take into
account subsidence due to underground coal mining operations, as
required by SMCRA.
At section 5.5(f) (52 P.S. 1406.5e(f)) the phrase, ``* * * within
six months or longer or such period as the department has established
or fail to perfect an appeal of the department's order directing such
repair or compensation'' is not approved.
At section 5.6(c) (52 P.S. 1406.5f(c)) the following two sentences
are not approved: ``Nothing herein shall impair agreements entered into
after April 27, 1966, and prior to the effective date of this section,
which, for valid consideration, provide for a waiver or release of any
duty to repair or compensate for subsidence damage. Any such waiver or
release shall only be valid with respect to damage resulting from the
mining activity contemplated by such agreement.''
Section 5.6(d) (52 P.S. 1406.5f(d)) is not approved to the extent
that section 5.6(c) is not approved.
Section 6 (52 P.S. 1406.6) must be amended to comply with the
provisions of 30 CFR 817.121(c)(5), which requires a permittee to
obtain additional performance bond when subsidence related material
damage to land or structures occurs, or when a protected water supply
is contaminated, diminished or interrupted. The additional bond must be
in the amount of the estimated repairs or in the amount of the decrease
in value of a protected structure or in the amount of the estimated
cost to replace a protected water supply if the repair, compensation or
replacement takes longer than 90 days.
The Regulations at 25 Pa. Code Chapter 89
In section 89.5, the definition of ``de minimis cost increase'' is
not approved.
In section 89.5, the definition of ``fair market value'' is not
approved.
In section 89.5, the phrase ``securely attached to the land
surface'' in the definition of ``permanently affixed appurtenant
structures'' is not approved.
Section 89.141(d)(3) is to be amended to require subsidence control
plans to provide a description of the measures to be taken to ensure
subsidence will not cause material damage to, or reduce the reasonably
foreseeable uses of, all the structures or features protected under 30
CFR 784.20(b)(5).
Section 89.141(d)(6) is to be amended to insure the requirements of
30 CFR 784.20(b)(5) and (b)(7) are met when occupied residential
dwellings and structures related thereto and community or institutional
buildings are not protected by 25 Pa. Code 89.141(d)(3) and they are
materially but not irreparably damaged.
Section 89.142a(c)(3) is to be amended to insure that Pennsylvania
has the discretion to suspend mining in cases where the initial
subsidence control plan or the operator's actions fail to prevent
material damage, until the operator's subsidence control plan ensures
the prevention of further material damage, as required in 30 CFR
817.121(e).
Section 89.142a(d) is required to be amended to insure the
prevention or minimization of material damage to occupied residential
dwellings and community or institutional buildings.
Section 89.142a(f)(1) is required to be amended to be no less
effective than 30 CFR 817.121(c) in requiring prompt repair or
compensation to landowners.
In section 89.142a(f)(1)(iii), the portion of the amendment that
states, ``* * * or on the date of first publication of the application
for a coal mining activity permit or a 5-year renewal thereof for the
operations in question and within the boundary of the entire mine as
depicted in the application'' is not approved.
Section 89.142a(g)(1) is required to be amended to require all
underground mining activities to be conducted in a manner consistent
with 30 CFR 817.180.
In section 89.143a(c), the portion that states, ``* * * within 6
months of the date that the building owner sent the operator
notification of subsidence damage to the structure * * *'' is not
approved. Additionally, the phrase, ``within 2 years of the date damage
to the structure occurred * * *'' is also not approved.
In section 89.143a(d)(3), the portion which states, ``* * * within
6 months of the date of issuance of the order. The Department may allow
more than 6
[[Page 67061]]
months if the Department finds that further damage may occur to the
same structure as a result of additional subsidence'' is not approved.
Section 89.144a(a)(1) is not approved.
Section 89.145a(a)(1) is required to be amended to include
provision that the survey information that need only be acquired to the
extent that it can be collected without extraordinary efforts or
expenditures of excessive sums of money, is only applicable when it
applies to inconveniencing landowners. The amendment must remove the
provision that allows for water supply surveys to be delayed until
mining advances within 1000 feet of a supply. Finally, this section
must also be amended to require permittees to submit the information
required by 25 Pa. Code 89.145a(a)(1)(i)-(vi) that is necessary to meet
the provisions of 30 CFR 784.20(a)(3) at the time of the application
for all existing drinking, domestic, or residential water supplies.
Section 89.145a(b) is required to be amended to be no less
effective than 30 CFR 817.41(j) in requiring prompt replacement or
restoration of water supplies. Additionally section 89.145a(b) is
required to be amended, if necessary, to ensure that the phrase
``satisfy the water user's needs and the demands of any reasonably
foreseeable uses'' is consistent with the actual use and the reasonably
foreseeable use of the supply, regardless of whether the current owner
has demonstrated plans for the use.
Section 89.145a(e)(1) is required to be amended to assure the
prompt supply of temporary water to all landowners whose water supply
has been impacted by underground mining, regardless of whether the
water supply is within the area of presumptive liability.
Section 89.145a(e)(2) is required to be amended to require the
restoration of water quantity in temporary water supplies to the same
level as permanent water supplies, as noted in 25 Pa. Code
89.145a(f)(3).
Section 89.145a(f)(1)(v) is not approved to the extent that it
passes de minimis cost increases for operation and maintenance of water
supplies to landowners.
Sections 89.145a(f)(3)(i) and (ii) are required to be amended, if
necessary, to ensure that the phrase ``satisfy the water user's needs
and the demands of any reasonably foreseeable uses'' is consistent with
the actual use and the reasonably foreseeable uses.
Section 89.146a(c) is approved to the extent that it is consistent
with, or more timely than, the citizen complaint procedures. However,
Pennsylvania is required to amend its program to the extent the time
frames are longer than the citizen complaint procedures.
Section 89.152(a)(2) is not approved.
Section 89.152(a)(4) is not approved
Section 89.152(a)(5)(i) is not approved.
Section 89.152(a)(5)(ii) is approved to the extent that the
agreement to replace a water supply or provide an alternative water
supply meets the requirements established in the federal definition of
``replacement of water supply'' found at 30 CFR 701.5. This section is
not approved for agreements that provide for replacement of or an
alternate supply of water to the extent that water supply will not meet
the requirements of the federal definition. This section is also not
approved to the extent that it allows compensation in lieu of
restoration or replacement of affected water supplies.
Sections 89.141(d), 89.141(d)(9), 89.142a(a), 89.142a(f)(1),
89.142a(f)(2)(i), 89.142a(h)(1), 89.142a(h)(2), 89.142a(i)(1),
89.143a(a), 89.143a(d)(1), 89.143a(d)(2), 89.143a(d)(3), 89.155(b)(1)
and (2), and 89.155(c) are required to be amended to be no less
stringent than section 720(a) of SMCRA with regard to the definition of
underground mining operations.
We find that good cause exists under 5 U.S.C. 553(d)(3) to make
this final rule effective immediately. Section 503(a) of SMCRA requires
that the state's program demonstrates that the state has the capability
of carrying out the provisions of the Act and meeting its purposes.
Making this regulation effectively immediately will expedite that
process. Additionally, 30 CFR 732.17(h)(12) requires decisions
approving or disapproving program amendments to be published in the
Federal Register and ``* * * shall be effective upon publication unless
the notice specifies a different effective date.''
VI. Effect of Director's Decision
Since July 28, 1995, enforcement of EPAct requirements in
Pennsylvania has occurred under 30 CFR 843.25(a)(4) with a combination
of state enforcement and direct federal enforcement. This portion of
the notice explains how the Director's decision on the proposed
amendment affects the regulation of underground mining impacts in
Pennsylvania.
Section 2504 of EPAct added section 720 to SMCRA. Section 720(a)(1)
required prompt repair or compensation for material damage to non-
commercial buildings and occupied residential dwellings and related
structures as a result of subsidence due to underground coal mining
operations, and section 720(a)(2) required prompt replacement of
certain identified water supplies adversely affected by underground
coal mining operations. Section 720 also required that these
protections be in place immediately for all underground coal mining
operations conducted after October 24, 1992.
To implement the water supply replacement and structure damage
repair requirements, OSM solicited comments in a March 31, 1995,
Federal Register notice (60 FR 16750-16751), and on July 28, 1995, OSM
decided that initial enforcement of EPAct requirements in Pennsylvania
under 30 CFR 843.25(a)(4) would be accomplished through a combination
of state and OSM enforcement (60 FR 38685-38689). Under the initial
enforcement process, Pennsylvania agreed to investigate all subsidence-
related complaints and take remedial action. Pennsylvania advised that
it would defer to OSM in those situations where the federal rules
provide greater relief for the complainant under 817.41(j), and
817.121(c)(2). Finally, under 30 CFR 843.25(b)(3), direct federal
enforcement is to remain in effect in states with approved regulatory
programs until OSM approves, under Part 732, provisions consistent with
sections 817.41(j) and 817.121(c)(2).
Water Supply Replacement: As discussed in this notice, the Director
is approving provisions that are no less effective than EPAct, and
several provisions that extend protection beyond the counterpart
federal standards. Extended coverage includes a rebuttable presumption
for temporary water supplies and protection of agricultural water
supplies. However, the Director is not approving several provisions
affording less protection than the minimum level required under EPAct.
These include provisions that allowed the operator to provide
compensation to landowners in lieu of water supply replacement if the
water supply is not restored or replaced within three years, time
limits on the filing of claims for affected water supplies, and a
provision that allowed up to three years to pass before an order for a
permanent alternate water supply must be issued. Finally, the Director
has required a number of amendments to the Pennsylvania program. The
required amendments include the provision of prompt replacement of all
adversely affected supplies, and that water supply surveys of existing
supplies be submitted at the time of the permit application.
The Director's decision will result in continued case-by-case
direct federal enforcement in Pennsylvania to carry out the
requirements of 30 CFR 817.41(j)
[[Page 67062]]
with respect to water supply replacement provisions. For example, while
Pennsylvania's provisions require prompt temporary replacement of an
adversely affected supply within the rebuttable presumption zone, the
provisions do not address prompt temporary or permanent water supply
replacement under any other circumstances. While the Director has
required Pennsylvania to submit an amendment to address this issue, the
water supply replacement provisions of 30 CFR 817.41(j) will continue
to be implemented by PADEP to the extent of its authority and
supplemented by direct federal enforcement, as needed on a case-by-case
basis to assure prompt replacement of affected supplies. For those
water replacement related provisions that are now part of the approved
program, OSM will monitor state performance and enforcement though the
normal oversight process.
Structure Repair and Compensation: As discussed in this notice, the
Director is approving provisions that are no less effective than EPAct,
and several provisions extending greater protection than the minimum
federal standards. These include structure compensation provisions that
provide for reimbursement based upon the cost to repair or replace,
reimbursement of associated temporary relocation costs, repair or
compensation for certain agricultural structures, and an irreparable
damage standard requiring permission of the property owner to proceed
with the subsidence related activities. However, the Director is not
approving proposed provisions resulting in less protection than that
afforded under EPAct. These include the denial of subsidence repair and
compensation based upon the refusal of access for pre-subsidence
surveys, time limits on the filing of claims for subsidence damage, and
a provision that would prevent PADEP from issuing orders requiring
repair and compensation until six months after a property owner had
notified the permittee of subsidence damage. Finally, the Director has
required a number of amendments to the Pennsylvania program, including
the provision of prompt repair and compensation for occupied dwellings
and non-commercial buildings and the development of subsidence damage
bonding requirements consistent with the federal standards.
The Director's decision will result in continued case-by-case
direct federal enforcement in Pennsylvania to carry out the
requirements of 30 CFR 817.121(c)(2) with respect to structure repair
and/or compensation. For example, Pennsylvania's proposed amendment did
not require prompt repair and compensation for all structures covered
under EPAct, did not cover all underground operations, did not cover
certain related structures, and placed conditions on property owners
that could limit structure repair and/or compensation to levels below
the minimum federal standards. The Director has not approved certain of
these provisions and required Pennsylvania to submit amendments to
address the aforementioned and other issues. Until such time as the
required amendments are approved, the provisions of 30 CFR
817.121(c)(2) will continue to be implemented by PADEP through state
provisions supplemented by direct federal enforcement, as needed on a
case-by-case basis to assure prompt repair of, and or compensation for,
all covered structures. For those structure damage-related provisions
that are now part of the approved program, OSM will monitor state
performance and enforcement though the normal oversight process.
Finally, Section 503 of SMCRA provides that a state may not
exercise jurisdiction under SMCRA unless the state program is approved
by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change
of an approved state program be submitted to OSM for review as a
program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit
any changes to approved state programs that are not approved by OSM. In
the oversight of the Pennsylvania program, we will recognize only the
statutes, regulations and other materials we have approved, together
with any consistent implementing policies, directives and other
materials. We will require Pennsylvania to enforce only approved
provisions.
VII. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart federal regulation.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 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 proposed 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.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the federal and state governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that state
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that state programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866, and because it is not expected to have a
significant adverse effect on the supply, distribution, or use of
energy, a Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed state regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the
[[Page 67063]]
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 the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies 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
counterpart 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. 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 counterpart federal regulation.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, federal, state, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S. based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the state
submittal, which is the subject of this rule, is based upon counterpart
federal regulations for which an analysis was prepared and a
determination made that the federal regulation was not considered a
major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on state, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the state
submittal, which is the subject of this rule, is based upon counterpart
federal regulations for which an analysis was prepared and a
determination made that the federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 29, 2001.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 938--PENNSYLVANIA
1. The authority citation for part 938 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2-3. Section 938.12 is added to read as follows:
Sec. 938.12 State statutory, regulatory, and proposed program
amendment provisions not approved.
(a) We are not approving the following provisions or portions of
provisions of the proposed program amendment that Pennsylvania
submitted on July 29, 1998:
(1) Section 5.1(b) (52 P.S. 1406.5a(b)) of the BMSLCA.
(2) At section 5.2(b)(2) (52 P.S. 1406.5b(b)(2)) of the BMSLCA, the
phrase, ``* * * where the contamination, diminution or interruption
does not abate within three years of the date on which the supply was
adversely affected.''
(3) At section 5.2(d) (52 P.S. 1406.5b(d)) of the BMSLCA the
phrase, ``Wherever a mine operator, upon request, has been denied
access to conduct a premining survey and the mine operator thereafter
served notice upon the landowner by certified mail or personal service,
which notice identified the rights established by sections 5.1 and 5.3
and this section, was denied access and the landowner failed to provide
or authorize access within ten days after receipt thereof, then such
affirmative proof shall include premining baseline data, provided by
the landowner or the department, relative to the affected water
supply.''
(4) Section 5.2(e)(2) (52 P.S. 1406.5b(e)(2)) of the BMSLCA.
(5) Section 5.2(g) (52 P.S. 1406.5b(g)) of the BMSLCA.
(6) Section 5.2(h) (52 P.S. 1406.5b(h)) of the BMSLCA.
(7) At section 5.2(i) (52 P.S. 1406.5b(i)) of the BMSLCA the
phrase, ``and of reasonable cost.''
(8) The portion of section 5.3(a) (52 P.S. 1406.5c(a)) of the
BMSLCA that allows agreements for water replacement that do not fully
comply with federal requirements for restoration or replacement of
water supplies. Additionally, the portion of section 5.3(a) (52 P.S.
1406.5c(b)) that allows compensation in lieu of restoration or
replacement of affected water supplies.
(9) Section 5.3(b) (52 P.S. 1406.5c(b)) of the BMSLCA is not
approved to the extent that section 5.3(a) (52 P.S. 1406.5c(a)) is not
approved.
(10) Section 5.3(c) (52 P.S. 1406.5c(c)) of the BMSLCA is not
approved to the extent any state law negates or provides less
protection than EPAct.
(11) At section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) the phrase, ``in
place on the effective date of this section or on the date of first
publication of the application for a Mine Activity Permit or a five-
year renewal thereof for the operations in question and within the
boundary of the entire mine as depicted in said application.''
(12) Section 5.4(c) (52 P.S. 1406.5d(c)) of the BMSLCA.
(13) Section 5.5(b) (52 P.S. 1406.5e(b)) of the BMSLCA.
(14) At section 5.5(c) (52 P.S. 1406.5e(c)) of the BMSLCA, the
phrase, ``* * * within six months or a longer period if the department
finds that the occurrence of subsidence or subsequent damage may occur
to the same building as a result of mining.''
(15) At section 5.5(f) (52 P.S. 1406.5e(f)) of the BMSLCA, the
phrase, ``* * * within six months or longer or such period as the
department has established or fail to perfect an appeal of the
department's order directing such repair or compensation.''
(16) At section 5.6(c) (52 P.S. 1406.5f(c)) of the BMSLCA, the
following two sentences: ``Nothing herein shall impair agreements
entered into after April 27, 1966, and prior to the effective date of
this section, which, for valid consideration, provide for a waiver or
release of any duty to repair or compensate for subsidence damage. Any
such waiver or release shall only be valid with respect to damage
resulting from the mining activity contemplated by such agreement.''
(17) Section 5.6(d) (52 P.S. 1406.5f(d)) of the BMSLCA is not
approved to the extent that section 5.6(c) has not been approved.
(18) At 25 Pa. Code 89.5, the definition of ``de minimis cost
increase.''
(19) At 25 Pa. Code 89.5, the definition of ``fair market value.''
(20) At 25 Pa. Code 89.5, the phrase ``securely attached to the
land surface''
[[Page 67064]]
in the definition of ``permanently affixed appurtenant structures.''
(21) 25 Pa. Code 89.142a(f)(1)(iii) the portion of the amendment
that states, ``* * * or on the date of first publication of the
application for a coal mining activity permit or a 5-year renewal
thereof for the operations in question and within the boundary of the
entire mine as depicted in the application.''
(22) At 25 Pa. Code 89.143a(c) the portion which states, ``* * *
within 6 months of the date that the building owner sent the operator
notification of subsidence damage to the structure * * *'' and the
portion which states, ``within 2 years of the date damage to the
structure occurred.''
(23) At 25 Pa. Code 89.143a(d)(3), the portion of the amendment
that states, ``* * * within 6 months of the date of issuance of the
order. The Department may allow more than 6 months if the Department
finds that further damage may occur to the same structure as a result
of additional subsidence.''
(24) 25 Pa. Code 89.144a(a)(1).
(25) The portion of 25 Pa. Code 89.145a(a)(1) that allows for water
supply surveys to be delayed until mining advances within 1,000 feet of
a supply.
(26) The portion of 25 Pa. Code 89.145a(f)(1)(v) that passes de
minimis cost increases for operation and maintenance of water supplies
to landowners.
(27) 25 Pa. Code 89.152(a)(2).
(28) 25 Pa. Code 89.152(a)(4).
(29) 25 Pa. Code 89.152(a)(5)(i).
(30) 25 Pa. Code 89.152(a)(5)(ii) is not approved for agreements
that provide for replacement of an alternate supply of water to the
extent that the water supply will not meet the federal definition of
replacement of water supply. The section is also not approved to the
extent it allows compensation in lieu of restoration or replacement of
affected water supplies.
(b) [Reserved]
4. Section 938.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 938.15 Approval of Pennsylvania regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
July 29, 1998..................... December 27, 2001................. Bituminous Mine Subsidence and Land 2001
Conservation Act: Repeal of Section 4
(52 P.S. 1406.4); 5(b)(partial
approval); 5.1(a)(1) (52 P.S.
1406.5a(a)(1) (conditional approval);
5.1(a)(2) and (3) (52 P.S.
1406.5a(a)(2) and (3)); 5.2(a)(1), (2),
and (3) (52 P.S. 1406.5b(a)(1), (2),
and (3)); 5.2(b)(1) (52 P.S.
1406.5b(b)(1)); 5.2(c) (52 P.S.
1406.5b(c)); 5.2(e)(1) and (3) (52 P.S.
1406.5b(e)(1) and (3)); 5.2(f) (52 P.S.
1406.5b (f); 5.2(j) (52 P.S.
1406.5b(j)); 5.2(k) (52 P.S.
1406.5b(k)); 5.4(a) (52 P.S.
1406.5d(a))(partial approval);
5.4(a)(1), (2) and (4) (52 P.S.
1406.5d(a)(1), (2) and (4)); 5.4(b) (52
P.S. 1406.5d(b)); 5.5(a) (52 P.S.
1406.5e(a))(partial approval); 5.5 (d),
(e), and (g) (52 P.S. 1406.5e(d), (e)
and (g)); 5.6(a) and (b) (52 P.S.
1406.5f(a) and (b)); 6 (52 P.S.
1406.6))(partial approval); 9.1(a),
(b), (c), and (d) (52 P.S. 1406.9a(a),
(b), (c), and (d); Repeal of Section 15
(52 P.S. 1406.15); 17.1 (52 P.S.
1406.17a); 18.1 (52 P.S. 1406.18a)
25 Pa. Code Section: 89.5, the
definitions of the following terms:
``dwelling,'' ``irreparable damage,''
``material damage,'' ``noncommercial
building,'' ``public buildings and
facilities,'' ``public water supply
system,'' ``rebuttable presumption
area,'' ``underground mining,''
``underground mining operations,'' and
``water supply;'' 89.33; 89.34; 89.35;
89.36; 89.141(a); 89.141(d)(2), (4),
(5), (7), (8), (10) and (11);
89.141(d), (d)(3), (6), and (9)(partial
approval); deletion of 89.142;
89.142a(a) (partial approval)
89.142a(a)(1), (2), (3) and (4);
89.142a(b); 89.142a(c)(1) and (2)(i) ``
(v); 89.142a(c)(3) (partial approval);
89.142a(d) (partial approval);
89.142a(e); 89.142a(f)(1) (partial
approval); 89.142a(f)(1)(i), (ii),
(iv), and (v); 89.142a(f)(2)(i)
(partial approval); 89.142a(g)(1)
(partial approval); 89.142a(g)(2), and
(3); 89.142a(h) (1) and (2) (partial
approval); 89.142a(i)(1) (partial
approval); 89.142a)(i)(2), (j), (k),
and (l); deletion of 89.143; 89.143a(a)
(partial approval); 89.143a(b);
89.143a(d)(1) and (2) (partial
approval);deletion of 89.144;
89.144a(a)(2), and (3); deletion of
89.145; 89.145a(a)(1)(i)-(vi);
89.145a(a)(2) and (3);
89.145a(b)(partial approval);
89.145a(c); 89.145a(d); 89.145a(e)(1)
and (2) (partial approval);
89.145a(f)(1)(i)-(iv); 89.145a(f)(2);
89.145a(f)(3)(i) and (ii)(partial
approval); 89.145a(f)(3)(iii);
89.145a(f)(4); 89.146a(a) and (b);
89.146a(c) (partial approval);
89.152(a)(1) and (3); 89.152(b); 89.153
(a), (b), and (c); 89.154(a) through
(d); 89.155(a), 89.155(b)(1) and (2)
(partial approval); 89.155(b)(3) and
(4); 89.155(c) (partial approval).
----------------------------------------------------------------------------------------------------------------
4. Section 938.16 is amended by adding paragraphs (hhhh) through
(bbbbbb) to read as follows:
Sec. 938.16 Required regulatory program amendments.
* * * * *
(hhhh) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend section 5(b) of the
BMSLCA (52 P.S. 1406.5(b)) to delete the reference to section 6(a) of
the BMSLCA and replace it with a reference to 6(b) of the BMSLCA.
(iiii) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend section 5.1(a)(1) of
the BMSLCA (52 P.S. 1406.5a(a)(1)) to require the prompt replacement of
all water supplies.
(jjjj) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove section 5.1(b) of the
BMSLCA (52 P.S. 1406.5a(b)).
[[Page 67065]]
(kkkk) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to delete the phrase, ``* * *
where the contamination, diminution or interruption does not abate
within three years of the date on which the supply was adversely
affected'' from section 5.2(b)(2) of the BMSLCA (52 P.S.
1406.5b(b)(2)).
(llll) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to delete the phrase, ``Wherever
a mine operator, upon request, has been denied access to conduct a
premining survey and the mine operator thereafter served notice upon
the landowner by certified mail or personal service, which notice
identified the rights established by sections 5.1 and 5.3 and this
section, was denied access and the landowner failed to provide or
authorize access within ten days after receipt thereof, then such
affirmative proof shall include premining baseline data, provided by
the landowner or the department, relative to the affected water
supply.'' from section 5.2(d) of the BMSLCA (52 P.S. 1406.5b(d)).
(mmmm) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove section 5.2(e)(2) of
the BMSLCA (52 P.S. 1406.5b(e)(2)).
(nnnn) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove section 5.2(g) of the
BMSLCA (52 P.S. 1406.5b(g)).
(oooo) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove section 5.2(h) of the
BMSLCA (52 P.S. 1406.5b(h)).
(pppp) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the phrase, ``and of
reasonable cost'' from section 5.2(i) of the BMSLCA (52 P.S.
1406.5b(i)).
(qqqq) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to make it clear in section
5.3(a) (52 P.S. 1406.5c(a)) that agreements to replace a water supply
or provide an alternative water supply must meet the requirements
established in the definition of ``replacement of water supply'' at 30
CFR 701.5 and that compensation in lieu of restoration or replacement
of affected water supplies is prohibited.
(rrrr) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to insure the provisions of
section 5.3(b) of the BMSLCA (52 P.S. 1406.5c(b)) reflect the
Director's decision on section 5.3(a) (52 P.S. 1406.5c(a)).
(ssss) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to make it clear that section
5.3(c) of the BMSLCA (52 P.S. 1406.5c(c)) cannot negate or provide less
protection than EPAct.
(tttt) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend section 5.4 of the
BMSLCA (52 P.S. 1406.5d) to require the prompt repair and compensation
for structures protected under section 720(a)(1) of SMCRA and 30 CFR
817.121(c)(2).
(uuuu) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend section 5.4(a)(3) of
the BMSLCA (52 P.S. 1406.5d(a)(3)) to remove the phrase, ``in place on
the effective date of this section or on the date of first publication
of the application for a Mine Activity Permit or a five-year renewal
thereof for the operations in question and within the boundary of the
entire mine as depicted in said application.''
(vvvv) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove section 5.4(c) of the
BMSLCA (52 P.S. 1406.5d(c)).
(wwww) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend section 5.5(a) of the
BMSLCA (52 P.S. 1406.5e(a)) to make it clear that operators are
responsible for repair or compensation to landowners of structures
damaged by subsidence from underground mining operations.
(xxxx) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove section 5.5(b) of the
BMSLCA (52 P.S. 1406.5e(b)).
(yyyy) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the following phrase
from section 5.5(c) of the BMSLCA (52 P.S. 1406.5e(c)), ``* * * within
six months or a longer period if the department finds that the
occurrence of subsidence or subsequent damage may occur to the same
building as a result of mining.'' Pennsylvania must also amend section
5.5(c) to insure that written damage determinations made by PADEP will
take into account subsidence due to underground coal mining operations
as required by SMCRA. Finally, Pennsylvania must also amend section
5.5(c) of the BMSLCA to insure the timeframes for investigation of
claims of subsidence damage are consistent with citizen complaint
procedures.
(zzzz) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the following phrase
from section 5.5(f) of the BMSLCA (52 P.S. 1406.5e(f)), ``* * * within
six months or longer or such period as the department has established
or fail to perfect an appeal of the department's order directing such
repair or compensation.''
(aaaaa) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the following two
sentences from section 5.6(c) of the BMSLCA (52 P.S. 1406.5f(c)):
``Nothing herein shall impair agreements entered into after April 27,
1966, and prior to the effective date of this section, which, for valid
consideration, provide for a waiver or release of any duty to repair or
compensate for subsidence damage. Any such waiver or release shall only
be valid with respect to damage resulting from the mining activity
contemplated by such agreement.''
(bbbbb) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to insure the provisions of
section 5.6(d) of the BMSLCA (52 P.S. 1406.5f(d)) reflect the
Director's decision on not approving
[[Page 67066]]
language in section 5.6(c) of the BMSLCA (52 P.S. 1406.5f(c)).
(ccccc) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend section 6 of the BMSLCA
(52 P.S. 1406.6) to comply with the provisions of 30 CFR 817.121(c)(5)
regarding when, and under what circumstances, the regulatory authority
must require permittees to obtain additional performance bond and the
amount of such bond.
(ddddd) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the definition of ``de
minimis cost increase,'' from 25 Pa. Code 89.5.
(eeeee) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the definition of
``fair market value,'' from 25 Pa. Code 89.5.
(fffff) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the phrase ``securely
attached to the land surface'' in the definition of ``permanently
affixed appurtenant structures'' at 25 Pa. Code 89.5.
(ggggg) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code
89.141(d)(3) to provide the protections of 30 CFR 784.20(b)(5).
(hhhhh) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code
89.141(d)(6) to insure the requirements of 30 CFR 784.20(b)(5) and
(b)(7) are met when occupied residential dwellings and structures
related thereto and community or institutional buildings are not
protected by 25 Pa. Code 89.141(d)(3) and they are materially damaged
but not irreparably damaged.
(iiiii) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption amend 25 Pa. Code 89.142a(c)(3)
to make it as effective as 30 CFR 817.121(e), which imposes on the
regulatory authority the obligation to require permittees to modify
subsidence control plans to ensure the prevention of further material
damage in the cases where the initial plan or operator's actions fail
and as effective as 30 CFR 817.121(e) in providing the authority to
suspend mining until such a plan is approved.
(jjjjj) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code 89.142a(d)
to insure the prevention or minimization of material damage to occupied
residential dwellings and community or institutional buildings.
(kkkkk) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code
89.142a(f)(1) to secure prompt repair or compensation to landowners.
(lllll) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the phrase from 25 Pa.
Code 89.142a(f)(1)(iii), which states, ``* * * or on the date of first
publication of the application for a coal mining activity permit or a
5-year renewal thereof for the operations in question and within the
boundary of the entire mine as depicted in the application.''
(mmmmm) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable to amend 25 Pa. Code 89.142a(g)(1) to require
all underground mining activities be conducted in a manner consistent
with 30 CFR 817.180.
(nnnnn) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the phrase from 25 Pa.
Code 89.143a(c) that states, ``* * * within 6 months of the date that
the building owner sent the operator notification of subsidence damage
to the structure * * *.'' Additionally, the amendment must remove the
phrase, ``within 2 years of the date damage to the structure
occurred.''
(ooooo) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove the sentences from 25
Pa. Code 89.143a(d)(3) that state, ``* * * within 6 months of the date
of issuance of the order. The Department may allow more than 6 months
if the Department finds that further damage may occur to the same
structure as a result of additional subsidence.''
(ppppp) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove 25 Pa. Code
89.144a(a)(1).
(qqqqq) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code
89.145a(a)(1) to make it clear that the requirement that survey
information need only be acquired to the extent that it can be
collected without extraordinary efforts or expenditures of excessive
sums of money, is only applicable when it applies to inconveniencing
landowners. The amendment must remove the provision that allows for
water supply surveys to be delayed until mining advances within 1000
feet of a supply. Finally, this section must also be amended to require
permittees to submit the information required by 25 Pa. Code
89.145a(a)(1)(i)-(vi) that is necessary to meet the provisions of 30
CFR 784.20(a)(3) at the time of the application for all existing
drinking, domestic, or residential water supplies.
(rrrrr) By February 25, 2002, Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to 25 Pa. Code 89.145a(b) is
required to be amended to be no less effective than 30 CFR 817.41(j) in
requiring prompt replacement or restoration of water supplies.
Additionally, section 89.145a(b) is required to be amended, if
necessary, to ensure that the phrase ``satisfy the water user's needs
and the demands of any reasonably foreseeable uses' is consistent with
the actual use and the reasonably foreseeable use of the supply,
regardless of whether the current owner has demonstrated plans for the
use.
(sssss) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code
89.145a(e)(1) to assure the prompt supply of temporary water to all
landowners whose water supply has been impacted by underground mining,
regardless of whether the water supply is within the area of
presumptive liability.
(ttttt) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together
[[Page 67067]]
with a timetable for adoption to amend 25 Pa. Code 89.145a(e)(2) to
require the restoration of water quantity in temporary water supplies
to the same level as permanent water supplies, as noted in 25 Pa. Code
89.145a(f)(3).
(uuuuu) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code
89.145a(f)(1)(v) to make it clear that that de minimis cost increases
for operation and maintenance of water supplies are not to be passed to
landowners or water users.
(vvvvv) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code
89.145a(f)(3)(i) and (ii), if necessary, to ensure that the phrase
``satisfy the water user's needs and the demands of any reasonably
foreseeable uses' is consistent with the actual use and the reasonably
foreseeable uses.
(wwwww) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code 89.146a(c)
to the extent the time frames for the Department's investigation are
longer than those in Pennsylvania's approved citizen complaint
procedures.
(xxxxx) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove 25 Pa. Code
89.152(a)(2).
(yyyyy) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove 25 Pa. Code
89.152a(4).
(zzzzz) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to remove 25 Pa. Code
89.152a(5)(i).
(aaaaaa) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code
89.152a(5)(ii) to remove that portion of the section allowing
compensation in lieu of restoration or replacement of affected water
supplies. Additionally the amendment must make it clear that agreements
to replace a water supply or provide for replacement of an alternate
supply of water must meet the requirements established in the federal
definition of ``replacement of water supply'' at 30 CFR 701.5.
(bbbbbb) By February 25, 2002 Pennsylvania must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend 25 Pa. Code sections
89.141(d), 89.141(d)(9), 89.142a(a), 89.142a(f)(1), 89.142a(f)(2)(i),
89.142a(h)(1), 89.142a(h)(2), 89.142(a)(i)(1), 89.143a(a),
89.143a(d)(1), 89.143a(d)(2), 89.143a(d)(3), 89.155(b)(1) and (2) and
89.155(c) to be no less stringent than section 720(a) of SMCRA.
[FR Doc. 01-31614 Filed 12-26-01; 8:45 am]
BILLING CODE 4310-05-P