71528 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 938 

[PA–143–FOR] 

Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior.

ACTION: Final rule; approval of 

amendment. 

SUMMARY: We are approving a proposed 

amendment to the Pennsylvania 

regulatory program (the ‘‘Pennsylvania 

program’’) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). Pennsylvania 

proposed to revise its program at 25 Pa. 

Code Chapters 86 and 89 regarding 

bonding and repair or compensation for 

damage to certain structures caused by 

subsidence due to underground mining 

operations and for replacement or 

restoration of water supplies impacted 

by subsidence due to underground 

mining operations. Through our 

approval of this amendment, we are also 

removing forty-seven required 

amendments to the Pennsylvania 

program. We required these 

amendments in a final rule published in 

the Federal Register on December 27, 

2001 (66 FR 67010), in which we 

reviewed changes Pennsylvania made to 

its Bituminous Mine Subsidence and 

Land Conservation Act (BMSLCA) and 

implementing regulations. Pennsylvania 

revised its program to be consistent with 

the corresponding Federal regulations 

and SMCRA.

DATES: Effective Dates: December 9, 

2004.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Director, Pittsburgh Field 

Division, Telephone: (717) 782–4036, email: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program 

II. Submission of the Proposed Amendment 

III. OSM’s Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations

I. Background on the Pennsylvania 

Program 

Section 503(a) of 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 conditions of 

approval in the July 30, 1982, Federal 

Register (47 FR 33050). You can also 

find later actions concerning 

Pennsylvania’s program and program 

amendments at 30 CFR 938.11, 938.12, 

938.15 and 938.16. 

II. Submission of the Proposed 

Amendment 

By letter dated August 27, 2003, the 

Pennsylvania Department of 

Environmental Protection (PADEP) sent 

us an amendment to its program 

(Administrative Record No. PA 841.64) 

under SMCRA (30 U.S.C. 1201 et seq.). 

Pennsylvania sent the amendment in 

response to the required program 

amendments at 30 CFR 938.16(hhhh) 

through and including (bbbbbb). 

Pennsylvania is proposing to amend its 

regulations at 25 Pa. Code 86.1, 86.151, 

86.152, 89.5, 89.141, 89.142a, 89.143a, 

89.144a, 89.145a, 89.146a, and 89.152 to 

satisfy the required amendments. 

Pennsylvania is also proposing 

additional regulation changes that relate 

to, but are not specifically required by, 

our required amendments. By letter 

dated September 3, 2003, PADEP 

revised its response to the required 

amendment at 30 CFR 938.16(ccccc) and 

its ancillary change to bonding 

requirements (Administrative Record 

No. PA 841.65). 

We announced receipt of the 

proposed amendment in the September 

22, 2003, Federal Register (68 FR 

55106). In the same document, we 

opened the public comment period and 

provided the public with an opportunity 

to speak at scheduled public hearings 

on the amendment’s adequacy. We held 

public hearings in Indiana, 

Pennsylvania, on October 15, 2003, at 3 

p.m. and at 7 p.m. and in Washington, 

Pennsylvania, on October 16, 2003, at 3 

p.m. and at 7 p.m. We entered a 

transcript of the public hearings into the 

administrative record (the Indiana 

hearings under Administrative Record 

Nos. PA 841.91 and PA 841.92, and the 

Washington hearings under 

Administrative Record Nos. PA 841.88 

and PA 841.89). In a separate proposed 

rulemaking on the same day, we asked 

for comments on a proposed action to 

supersede certain sections of BMSLCA 

(68 FR 55134). The public comment 

period for both proposed rulemakings 

ended on October 22, 2003. During the 

hearings, we received 19 distinct sets of 

comments through written and oral 

testimony, from the following:

Industry—Pennsylvania Coal 

Association (PCA), Private Citizens—

eight homeowners, and Businesses—

The Hothouse Floral Company. 

Citizen/Environmental Groups:

Citizens for Pennsylvania’s Future a/k/

a PennFuture, Concern About Water 

Loss due to Mining (CAWLM), Sierra 

Club/Tri-States Citizen Network, Citizen 

Network, Mountain Watershed 

Association, Ten Mile Protection 

Network, Wheeling Creek Watershed 

Conservancy, and Citizen’s Coal 

Council. 

Testimony by legal counsel for State 

Representative William DeWeese. 

In addition, we received further 

written comments from the PCA, the 

National Mining Association (NMA), the 

U. S. Environmental Protection Agency, 

Department of Labor, Mine Safety and 

Health Administration, several private 

citizens, and from two environmental 

groups (CAWLM & Tri-States Citizen 

Network). 

III. OSM’s Findings 

Following are the findings we made 

under SMCRA and the Federal 

regulations at 30 CFR 732.15 and 732.17 

concerning approval of Pennsylvania’s 

amendment to its program and removal 

of our required amendments. In this 

final rule, we are approving the 

proposed changes to Pennsylvania’s 

regulatory program as noted below. 

Additionally, in a separate final rule 

published in today’s Federal Register

we are superseding portions of 

BMSLCA. Approval of PADEP’s 

proposed regulations along with the 

determinations made in the December 

27, 2001, final rule and the superseding 

of portions of BMSLCA, have enabled us 

to remove the required amendments at 

30 CFR 938.16(hhhh) through (bbbbbb). 

For easy cross-reference to our final rule 

of December 27, 2001, our findings 

below are arranged in the alphabetical 

order of the December 27, 2001, 

required amendments. Please see our 

December 27, 2001, final rule (66 FR 

67010) for a full discussion of OSM’s 

rationale for requiring these 

amendments to Pennsylvania’s program. 

The December 27, 2001, final rule is 

made a part of the record for this action 

as well. 

In the December 27, 2001, final rule, 

the required amendments from 30 CFR 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71529

938.16(hhhh) to 30 CFR 938.16(ccccc) 

describe changes we required 

Pennsylvania to make to BMSLCA, 

while the required amendments from 30 

CFR 938.16(ddddd) to 30 CFR 

938.16(bbbbbb) describe changes we 

required Pennsylvania to make to its 

regulations. In some cases, the changes 

Pennsylvania proposed to its regulations 

in the August 27, 2003, letter were 

sufficient to remove amendments we 

required to BMSLCA. The specific 

sections of BMSLCA where this 

occurred are noted below.

Finally, in its August 27, 2003, letter, 

PADEP also proposed several 

amendments to Chapters 86 and 89 that 

we did not specifically require in our 

December 27, 2001, final rule. These 

changes are discussed in a separate 

section following our discussion on the 

required amendments. 

30 CFR 938.16(hhhh). Reference 

relating to bonding requirements. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to Section 5(b) of BMSLCA 

to delete the reference to Section 6(a) of 

BMSLCA, which no longer exists, and 

replace it with a reference to 6(b). 

For a full explanation of PADEP’s 

rationale in proposing removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55107). We accept PADEP’s explanation 

that the error in cross referencing 

sections of BMSLCA will not interfere 

with PADEP’s authority to require a 

bond or make its bonding requirements 

any less effective than the Federal 

bonding requirements. As a result, we 

are removing this required amendment 

and approving language in 5(b) of 

BMSLCA that was previously not 

approved. 

30 CFR 938.16(iiii). Prompt 

replacement of water supplies. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to Section 5.1(a)(1) of 

BMSLCA to require the prompt 

replacement of all water supplies 

affected by underground mining 

operations. 

For a full explanation of PADEP’s 

proposed action and argument for 

removal of this required amendment, 

see the September 22, 2003, proposed 

rule (68 FR at 55107). PADEP proposed 

to amend its regulation at 25 Pa. Code 

89.145a(b) to require the prompt 

replacement of water supplies. The 

proposed addition of the word 

‘‘prompt’’ to Pennsylvania’s regulations 

makes those regulations no less 

stringent than Section 720(a)(2) of 

SMCRA regarding prompt replacement 

of water supplies. Since BMSLCA was 

silent on when a water supply had to be 

replaced, the addition of the word 

‘‘prompt’’ to Pennsylvania’s regulations 

allows the removal of this required 

amendment to BMSLCA. Therefore, we 

are approving the regulatory change at 

25 Pa. Code 89.145a(b) (see 30 CFR 

938.16(rrrrr) below) and removing this 

required amendment. 

30 CFR 938.16(jjjj). Two-year 

reporting limit on water supply effects. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove Section 5.1(b) of 

BMSLCA, which establishes a two-year 

limit on filing water supply damage 

claims. We made a similar finding in 30 

CFR 938.16(yyyyy) with regard to the 

corresponding regulatory requirement in 

25 Pa. Code 89.152(a)(4). 

For a full explanation of PADEP’s 

proposed action and argument for 

removal of this required amendment, 

see the September 22, 2003, proposed 

rule (68 FR at 55107). PADEP proposed 

to amend its regulation at 25 Pa. Code 

89.152(a) to remove the two year filing 

deadline with regard to claims involving 

water supplies protected under the 

Federal regulations. As discussed infra, 

we have determined that the changes to 

25 Pa. Code 89.152(a) are no less 

effective than the Federal regulations 

regarding replacement of water 

supplies. However Section 5.1(b) of 

BMSLCA conflicts with this revised 

regulation in that it limits an operator’s 

obligation to replace water supplies if 

the landowner’s claim is not made 

within two years of the date of impact 

and, as initially determined in the 

December 27, 2001, final rule, is 

inconsistent with SMCRA and the 

Federal regulations. In a separate notice 

published in today’s Federal Register, 

we are superseding Section 5.1(b) of 

BMSLCA to the extent that it would 

limit an operator’s liability to restore or 

replace a water supply covered under 

Section 720 of SMCRA. Based on our 

approval of PADEP’s proposed changes 

to its regulations at 25 Pa. Code 

89.152(a) (see 30 CFR 938.16(yyyyy) 

below), coupled with the 

determinations made in the December 

27, 2001, final rule and the superseding 

of Section 5.1(b) of BMSLCA as 

described above, we are removing this 

required amendment. 

30 CFR 938.16(kkkk). Water supply 

replacement: promptness of actions. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove the clause in 

Section 5.2(b)(2) of BMSLCA, which 

acknowledges that water supply claims 

may exist for periods up to three years 

prior to PADEP enforcement action 

because this does not provide for 

prompt replacement under Section 

720(a)(2) of SMCRA.

For a full explanation of PADEP’s 

rationale and revised regulation 

proposed for removal of this required 

amendment, see the September 22, 

2003, proposed rule (68 FR at 55108–

09). PADEP stated that the language at 

Section 5.2(b)(2) of BMSLCA does not 

prevent it from taking enforcement 

action sooner than three years after the 

date of impact and that the three years 

is the outer limit for permanent water 

restoration/replacement. Coupled with 

PADEP’s proposed change to its 

regulations at 25 Pa. Code 89.145a(b) 

requiring prompt replacement of water 

supplies, we have determined that the 

portion of the required amendment 

concerning the three year period that 

can elapse before enforcement action is 

taken can be removed. As a result, we 

are approving the regulatory change to 

25 Pa. Code 89.145(a)(b) (see 30 CFR 

938.16(rrrrr) below), approving language 

in Section 5.2(b)(2) of BMSLCA that was 

previously not approved, and we are 

removing this required amendment. 

In a matter unrelated to this required 

amendment, but pertaining to Section 

5.2(b)(2) of BMSLCA, we approved, in 

the December 27, 2001, final rule, the 

portion of Section 5.2(b)(2) that requires 

PADEP to investigate claims within 10 

days of notification and to make a 

determination within 45 days of 

whether an operator affected a water 

supply to the extent that these time 

frames were consistent with, or more 

timely than, Pennsylvania’s citizen 

complaint procedures (66 FR at 67016). 

PADEP’s proposed change to 25 Pa. 

Code 89.146a(c), which we approved 

below, requires it to notify citizens of its 

determination within 10 days of 

completing its investigation. This 

regulation ensures that the Pennsylvania 

program is no less effective than the 

Federal requirements at 30 CFR 842.12 

regarding time frames for citizen 

complaint procedures (see 30 CFR 

938.16(wwwww) below). 

30 CFR 938.16(llll). Denial of access 

for premining survey and its effect on 

affirmative proof of water supply 

contamination, diminution or 

interruption. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment 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 

71530 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

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 

BMSLCA. We took this action because 

limiting proof to premining baseline 

data is less effective than 30 CFR 

817.121(j). 

For a full explanation of PADEP’s 

rationale for why the required 

amendment should be removed, see the 

September 22, 2003, proposed rule (68 

FR at 55109). PADEP has stated that 

Section 5.2(d) of BMSLCA will not 

interfere with its ability to use evidence 

other than ‘‘premining baseline 

information’’ and provided an 

interpretation of its statute and 

regulations that it will allow the use of 

all evidence in cases of water supply 

impacts. Generally, courts grant 

deference to an agency’s interpretation 

of a statute that the agency implements. 

We have determined that PADEP’s 

interpretation is reasonable. Based on 

this interpretation, we have determined 

that it is no less effective than the 

Federal regulations that require 

replacement of all drinking, domestic 

and residential water supplies 

regardless of whether premining 

baseline data is provided. As a result, 

we are removing this required 

amendment and approving language in 

Section 5.2(d) of BMSLCA that was 

previously not approved. 

30 CFR 938.16(mmmm). Relief of 

liability for water supply replacement 

when the adverse effect occurs more 

than three years after mining activity. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to delete Section 5.2(e)(2) of 

BMSLCA which provides a release of 

liability in cases where water supply 

impacts occur more than three years 

after mining activity because it 

eliminated an operator’s liability, 

leaving no recourse for landowners. 

After lengthy deliberations with 

PADEP concerning this required 

amendment, we determined that this 

section and its implementing regulation 

at 25 Pa. Code 89.152(a)(2) are no less 

effective than the Federal regulations 

because: (1) The application of the three 

year limit will not result in release of 

liability prior to the time that the 

Federal regulations would provide for 

jurisdiction to terminate; (2) PADEP can 

reassert jurisdiction if there is fraud, 

collusion or misrepresentation of a 

material fact; and (3) the three year limit 

does not affect a citizen’s right to sue 

pursuant to Section 520 of SMCRA. 

For a full discussion of OSM’s 

considerations and the explanation of 

PADEP’s rationale proposing removal of 

this required amendment, see the 

September 22, 2003, proposed rule (68 

FR at 55109). PADEP maintains that the 

start of the three year period is at the 

time of the last mining activity. PADEP 

proposes to amend its definition of 

underground mining activities at 25 Pa. 

Code 86.1 and 89.5 to include post 

closure mine pool maintenance. Water 

supplies are usually affected at the time 

of subsidence or upon the advance of 

mine workings into or adjacent to 

aquifers. After the mining is completed, 

the development of the post closure 

mine pool is the only mining-related 

factor that is likely to affect adjacent 

water supplies. The mine pool may take 

years to reach a stable elevation and 

require six months to a year to verify 

stabilization. Thus, the three year period 

will not start until PADEP is convinced 

that the mine pool has stabilized. The 

Federal regulations providing for 

termination of jurisdiction are based on 

the satisfaction of reclamation standards 

and not necessarily on the date of pool 

stabilization. Thus, the Federal 

regulations would normally allow a 

State to terminate jurisdiction before 

pool stabilization. 

PADEP has also demonstrated (as 

discussed fully in the proposed rule) 

that it has the authority to require an 

operator to replace a water supply if an 

operator uses erroneous or fraudulent 

information because under Section 

5.2(e) of BMSLCA such an operator has 

failed to meet the affirmative defense 

requirements. Lastly, Section 13 of 

BMSLCA created the right of citizens to 

sue. PADEP interprets Section 13 as not 

being affected by the three-year limit 

described in Section 5.2(e)(2). We have 

determined that PADEP’s interpretation 

is reasonable. Accordingly, based on 

PADEP amending its definition of 

‘‘underground mining activities,’’ and 

based on its reasonable interpretations 

of its statute and regulations that there 

is recourse for the landowner and there 

is a way to require the replacement of 

water supplies after the three years, we 

find these provisions for an operator’s 

liability for water supply replacement to 

be no less effective than the Federal 

regulations. As a result, we are 

removing this required amendment and 

approving language in Section 5.2(e)(2) 

of BMSLCA that was previously not 

approved. 

30 CFR 938.16(nnnn), (oooo), (qqqq), 

(rrrr). Compensation in lieu of water 

supply replacement. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove provisions in 

Sections 5.2(g) and (h) and 5.3 of 

BMSLCA, which allow an operator to 

provide compensation in lieu of 

restoring or replacing an affected water 

supply.

As previously noted in the December 

27, 2001, final rule, Section 720 of 

SMCRA and the Federal rules 

unequivocally require replacement of a 

water supply. See, 66 FR at 67018. 

PADEP proposed to amend 25 Pa. Code 

89.152 to provide for situations when an 

operator may not be required to restore 

or replace a water supply protected 

under Section 720 of SMCRA and for 

situations when an operator will not be 

required to restore or replace a water 

supply outside the protections of 

Section 720 of SMCRA. The proposed 

changes to the regulations addressing 

those water supplies protected under 

SMCRA do not provide for 

compensation in lieu of replacement of 

water supplies. Instead, these changes 

provide that in the rare circumstances 

that PADEP determines that a water 

supply meeting the requirements of 25 

Pa. Code 89.145a(f) cannot be replaced, 

a payment for the fair market value of 

the property, or a payment for the 

difference between the fair market value 

prior to and after mining, can be made 

to the landowner. 

However, the change to 25 Pa. Code 

89.152 conflicts with portions of 

Sections 5.2(g) and (h) of BMSLCA 

because the statute limits PADEP’s 

authority to require replacement of an 

Energy Policy Act (EPAct) water supply 

when instead an operator wants to 

compensate an owner. For a full 

explanation of PADEP’s rationale for 

proposed removal of this required 

amendment, see the September 22, 

2003, proposed rule (68 FR at 55111). 

While the Federal standards do not have 

a provision identical to Pennsylvania’s 

regulations, these provisions are not 

inconsistent with the requirements of 

the Federal regulations authorizing 

compensation for property damage 

because the loss of an EPAct water 

supply would be considered material 

damage to the structure, which under 30 

CFR 817.121(c)(5), would require the 

operator to compensate the owner for 

reduction in the fair market value of the 

structure. As a result, we are approving 

the proposed changes to 25 Pa. Code 

89.152 (see 30 CFR 938.16(zzzzz) 

below). In a separate notice published in 

today’s Federal Register, we are 

superseding Section 5.2(g) of BMSLCA 

to the extent that it would limit an 

operator’s liability to restore or replace 

a water supply covered under Section 

720 of SMCRA and we are superseding 

Section 5.2(h) of BMSLCA to the extent 

it would preclude Pennsylvania from 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71531

requiring the restoration or replacement 

of a water supply covered under Section 

720 of SMCRA. Because of the changes 

Pennsylvania is proposing to its 

regulations at 25 Pa. Code 89.152 

coupled with the determinations made 

in the December 27, 2001, final rule and 

the superseding of Sections 5.2(g) and 

(h) of BMSLCA as noted above, we are 

removing these required amendments 

and approving language in Section 5.3 

of BMSLCA that was previously not 

approved. 

30 CFR 938.16(pppp). Permanent 

alternate source definition. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove the phrase, ‘‘and 

of reasonable cost’’ from Subsection 

5.2(i) of BMSLCA because it could be 

interpreted to limit an operator’s 

obligation to replace an affected water 

supply and could result in the 

landowner/water user incurring 

additional costs. This section provides 

that a permanent alternate source 

includes any well, spring, municipal 

water supply system or other supply 

approved by PADEP which is adequate 

in quantity, quality and of reasonable 

cost to serve the premining uses of the 

affected water supply. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55113). PADEP proposes to modify its 

regulations at 25 Pa. Code 89.145a(f) to 

require that a restored or replaced 

drinking, domestic or residential water 

supply cannot cost the water user more 

to operate and maintain than the 

previous water supply. We approved 

this proposed regulation (see 30 CFR 

938.16(uuuuu) below). Additionally, 

PADEP has provided an interpretation 

of its program that the ‘‘reasonable cost’’

standard in Section 5.2(i) of BMSLCA 

refers to the right of a property owner 

to a restored or replaced water supply 

that can be operated or maintained at a 

reasonable cost. This provision is not 

applied as a basis for relieving an 

operator of the liability for restoration or 

replacement of affected water supplies. 

With this interpretation and our 

approval of the proposed change to the 

regulation at 25 Pa. Code 89.145a(f), we 

have determined that Pennsylvania’s 

program is no less effective than the 

Federal requirements for replacement of 

water supplies. Therefore, we are 

removing this required amendment and 

approving language in 5.2(i) of BMSLCA 

that was previously not approved. 

30 CFR 938.16(ssss). Other remedies 

available under State law. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to make it clear that Section 

5.3(c) of BMSLCA, relating to other 

remedies under State law, cannot negate 

or provide less protection than EPAct.

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55114). PADEP provided an 

interpretation of this section that a 

landowner has full rights under 

BMSLCA while seeking remedies under 

other laws. We accept PADEP’s 

interpretation of this portion of the 

statute. Because landowners or water 

supply users have the full protection of 

BMSLCA even while pursuing other 

avenues of redress, we have determined 

that this portion of the program is no 

less effective than the Federal 

regulations and we are removing this 

required amendment. 

30 CFR 938.16(tttt). Prompt repair or 

compensation for structure damage. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to Section 5.4 of BMSLCA 

to require prompt repairs or 

compensation in cases involving 

damage to EPAct structures (i.e., 

noncommercial buildings, dwellings 

and structures related thereto). 

For a full explanation of PADEP’s 

rationale for removal of this required 

amendment, see the September 22, 

2003, proposed rule (68 FR at 55114). 

PADEP proposes to amend its regulation 

at 25 Pa. Code 89.142a(f)(1) to provide 

for the prompt repair of subsidence 

damage from underground mining 

operations or for the prompt 

compensation thereof (see 30 CFR 

938.16(kkkkk) below). We have 

determined that this proposed 

regulation is no less effective than the 

Federal regulations requiring prompt 

replacement or compensation and we 

approved it. Since BMSLCA was silent 

on when a damaged structure had to be 

repaired, the addition of the word 

‘‘prompt’’ to Pennsylvania’s regulations 

at 25 Pa. Code 89.142a(f)(1) makes the 

Pennsylvania statute and regulations no 

less stringent than Section 720(a)(1) of 

SMCRA regarding prompt repair of, or 

compensation for, material damage to 

certain structures. Therefore, we are 

removing this required amendment. 

30 CFR 938.16(uuuu). Repair of 

dwellings and permanently affixed 

appurtenant structures or 

improvements. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to Section 5.4(a)(3) of 

BMSLCA 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.’’

The Pennsylvania statute provided for 

the repair or compensation of 

improvements to structures damaged by 

underground mining operations so long 

as the improvements were in place at 

the time of the permit application or at 

the time of the permit renewal and were 

completely within the boundary of the 

mine. The Federal definition of 

‘‘occupied residential dwelling and 

structures related thereto’’ includes 

improvements related to EPAct 

structures. The Federal rules at 30 CFR 

817.121(c)(2) protect such 

improvements if they were in place at 

the time of mining. There is no Federal 

requirement that the improvement be 

completely within the boundary of the 

mine. For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55115). In response to this amendment, 

PADEP proposes to amend its regulation 

at 25 Pa. Code 89.142a(f)(1)(iii) to 

remove the phrase corresponding to the 

above phrase from BMSLCA. We 

approved this proposed regulation (see 

30 CFR 938.16(lllll) below). 

However, the change to 25 Pa. Code 

89.142a(f)(1)(iii) conflicts with portions 

of Section 5.4(a)(3) of BMSLCA which 

still contain the above language. In a 

separate notice published in today’s 

Federal Register, we are superseding 

the portion of Section 5.4(a)(3) of 

BMSLCA that states, ‘‘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,’’ to the extent it 

would limit an operator’s liability for 

restoration of, or compensation for 

subsidence damages to, structures 

protected under Section 720 of SMCRA 

that were in existence at the time of 

mining. Because of our approval of 

Pennsylvania’s proposed regulation at 

25 Pa. Code 89.142a(f)(1)(iii), coupled 

with the determinations made in the 

December 27, 2001, final rule and the 

superseding of Section 5.4(a)(3) of 

BMSLCA as noted above, we have 

determined that the changes to 

Pennsylvania’s program are no less 

effective than the Federal regulations 

and we are removing this required 

amendment.

30 CFR 938.16(vvvv). Relief of liability 

for structure damage repair or 

compensation when an operator is 

71532 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

denied access to conduct a premining or 

postmining survey. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove Section 5.4(c) of 

BMSLCA, which waives an operator’s 

liability for damage repair and 

compensation in cases where 

landowners deny access for premining 

or postmining surveys because 30 CFR 

817.121(c)(2) does not provide an 

exception to operator’s liability for 

subsidence damage to EPAct structures. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55115). PADEP has proposed to revise 

its regulation at 25 Pa. Code 89.144a to 

provide that an operator’s relief of 

liability for damage repair or 

compensation does not apply to EPAct 

structures if the landowner or PADEP 

can show by a preponderance of 

evidence that the damage resulted from 

the operator’s underground mining 

operations (see 30 CFR 938.16(ppppp) 

below). We have determined that this 

proposed change in the regulations is no 

less effective than the Federal 

provisions relating to damage repair or 

compensation and we approved it. 

However, the change to 25 Pa. Code 

89.144a conflicts with portions of 

Section 5.4(c) of BMSLCA which still 

contain this language. In a separate 

notice published in today’s Federal 

Register, we are superseding Section 

5.4(c) of BMSLCA to the extent it limits 

an operator’s liability for repair of, or 

compensation for, subsidence damage to 

a structure covered under Section 720 of 

SMCRA. Based on Pennsylvania’s 

proposed changes to 25 Pa. Code 

89.144a, coupled with the 

determinations made in the December 

27, 2001, final rule and the superseding 

of Section 5.4(c) of BMSLCA as 

described above, we are removing this 

required amendment. 

30 CFR 938.16(wwww). Repair or 

compensation for damaged structures. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to Section 5.5(a) of 

BMSLCA to make it clear that operators 

are responsible for repair or 

compensation in all cases where EPAct 

structures are damaged by subsidence 

from ‘‘underground mining operations,’’

not just for damage caused by the 

removal of coal. Section 720(a) of 

SMCRA requires prompt repair or 

compensation for material damage 

caused by underground coal mining 

operations, which includes many 

activities. We made a similar 

requirement at 30 CFR 938.16(bbbbbb) 

with regard to the implementing 

regulations at 25 Pa. Code 89.143a(a). 

For a full discussion of the various 

terms and an explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55116). PADEP proposes to amend its 

regulation at 25 Pa. Code 89.143a(a) to 

change the term ‘‘underground mining’’

to ‘‘underground mining operations.’’

PADEP noted that the terms 

‘‘underground mining’’ and 

‘‘underground mining operations’’ are 

not defined in the BMSLCA and are 

used interchangeably in the statute (for 

example, the term ‘‘underground mining 

operations’’ used in Section 5.4 of 

BMSLCA and the term ‘‘underground 

mining’’ used in Section 5.5 of 

BMSLCA). Since these and related 

sections concern the same subject 

matter, repair and/or compensation of 

damage to structures, PADEP’s 

regulatory definitions and its 

interpretation of its statute and 

regulations must be examined to satisfy 

this issue. We have determined that 

Pennsylvania’s proposed change to 25 

Pa. Code 89.143a(a) is no less effective 

than the Federal regulations regarding 

repair or compensation of structures 

damaged by underground mining 

operations since its definition of 

underground mining operations is 

consistent with that portion of the 

Federal definition of underground 

mining activities regarding underground 

operations. As a result, we are 

approving it (see 30 CFR 

938.16(bbbbbb)) below. Further, we 

have determined that Pennsylvania’s 

interpretation that BMSLCA is not 

limiting in this regard is a reasonable 

one and therefore we are removing this 

required amendment. 

30 CFR 938.16(xxxx). Structure 

Damage—Six-month negotiation period 

and two-year claim filing period. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove Section 5.5(b) of 

BMSLCA which describes procedures 

for the resolution of structure damage 

claims. Section 5.5(b) provides a sixmonth negotiation period prior to 

intervention of PADEP. It also 

establishes a two-year period for filing 

subsidence damage claims. We required 

the amendment because the language 

could delay enforcement action by 

PADEP; did not provide for prompt 

repair or compensation as required by 

SMCRA; and was inconsistent with 

SMCRA which does not restrict the time 

for filing a damage claim. We made a 

similar requirement at 30 CFR 

938.16(nnnnn) with regard to the 

implementing regulations at 25 Pa. Code 

89.143a(c). 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55116). To address this required 

amendment, PADEP has stated that 

under Section 9 of BMSLCA, it has the 

broad authority to issue enforcement 

orders prior to the six month negotiation 

period in order to carry out the 

enforcement provisions of BMSLCA. 

Additionally, PADEP amended its 

proposed regulation at 25 Pa. Code 

89.143a(c) to eliminate the requirement 

that a landowner wait six months to file 

a claim and to eliminate the 

requirement that a landowner file a 

damage claim within two years with 

regard to structures protected under 

Federal regulations. We have 

determined that these changes make this 

regulation no less effective than the 

Federal regulations regarding damage 

repair or compensation and we 

approved them (see 30 CFR 

938.16(nnnnn) below). We have 

determined that PADEP’s interpretation 

of Section 9 of BMSLCA is reasonable 

since it removed the above noted 

regulatory language, making it clear that 

the six month time period does not limit 

earlier repair or compensation for 

protected structures.

However, the proposed change to 25 

Pa. Code 89.143a(c) conflicts with 

portions of Section 5.5(b) of BMSLCA 

because the statute has the mandatory 

language that all claims shall be filed 

within two years. In a separate notice 

published in today’s Federal Register, 

we are superseding the portion of 

Section 5.5(b) of BMSLCA that reads, 

‘‘All claims under this subsection shall 

be filed within two years of the date 

damage to the building occurred’’ to the 

extent that it would limit an operator’s 

liability for restoration of, or 

compensation for, subsidence damages 

to a structure covered under Section 720 

of SMCRA. Based on our approval of 

PADEP’s proposed amendment to 25 Pa. 

Code 89.143a(c), coupled with the 

determinations made in the December 

27, 2001, final rule and the superseding 

of Section 5.5(b) of BMSLCA as noted 

above, we are removing this required 

amendment. 

30 CFR 938.16(yyyy). Investigation 

and orders for repair of damaged 

structures. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to Section 5.5(c) of 

BMSLCA to do three things: (1) Remove 

the following phrase relating to 

timeframes for enforcement orders, 

‘‘* * * within six months or a longer 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71533

period if the department finds that the 

occurrence of subsidence or subsequent 

damage may occur to the same building 

as a result of mining.’’ We made a 

similar requirement in 30 CFR 

938.16(ooooo) with regard to the 

implementing regulations at 25 Pa. Code 

89.143a(d); (2) ensure that written 

damage determinations made by PADEP 

will take into account subsidence due to 

underground coal mining operations as 

required by SMCRA (we made a similar 

requirement at 30 CFR 938.16(bbbbbb) 

with regard to the implementing 

regulations at 25 Pa. Code 

89.143a(d)(1)–(3)); and (3) ensure that 

the timeframes for investigation of 

claims of subsidence damage are 

consistent with Federal procedures for 

response to citizen complaints. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55117). With regard to the first 

requirement, PADEP stated that the 

language in 5.5(c) of BMSLCA reads that 

the compliance period is ‘‘within six 

months’’ and not a fixed six-month 

compliance period so that it has the 

ability to require shorter compliance 

period than six months. To support this 

interpretation, PADEP proposes to 

remove the six month period from its 

regulation at 25 Pa. Code 89.143a(d)(3) 

and proposes to add provisions relating 

to the prompt performance of actions 

required by enforcement orders. We 

approved these proposed changes (see 

30 CFR 938.16(ooooo) below). 

With regard to the second 

requirement, PADEP proposes to amend 

25 Pa. Code 89.143a(d) to replace the 

term, ‘‘underground mining,’’ with 

‘‘underground mining operations.’’ We 

approved this proposed change (see 30 

CFR 938.16(bbbbbb) below). 

With regard to the third requirement, 

PADEP proposes to amend 25 Pa. Code 

89.143a(d)(1) to require claimant 

notification by PADEP within ten days 

of PADEP completing its investigation 

of the subsidence damage claim. We 

have determined that PADEP’s 

interpretation of BMSLCA’s ‘‘within six 

months’’ language in conjunction with 

the proposed regulatory change allows 

PADEP to issue orders requiring prompt 

compliance is no less effective than the 

Federal regulations which require 

abatement of notices of violations (i.e., 

enforcement orders) within ninety days, 

including extensions, unless one of the 

exceptions of 30 CFR 843.12(c) applies. 

As a result, we are approving 

Pennsylvania’s proposed regulation at 

25 Pa. Code 89.143a(d)(1). As discussed 

earlier with required amendment 30 

CFR 938.16(wwww), we have 

determined that PADEP’s interpretation 

and regulation change replacing the 

term ‘‘underground mining’’ with 

‘‘underground mining operations,’’ no 

less effective than the Federal 

regulations. 

Finally, with regard to the proposed 

changes made to the regulations 

concerning investigation and 

notification of subsidence damages 

claims, we determined that since 

Section 5.5(c) of BMSLCA was 

ambiguous on the maximum time that 

could elapse between the completion of 

the investigation and the time the 

complainant was notified of the results, 

the revised regulation is no less effective 

than the Federal citizen complaint rule 

which requires notification within ten 

days of completion of the inspection. As 

a result, we are removing this required 

amendment. 

30 CFR 938.16(zzzz). Issuance of 

orders and payment of escrow when an 

operator fails to repair or compensate a 

landowner for subsidence damage. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove the following 

phrase from Section 5.5(f) of BMSLCA, 

‘‘* * * within six months or such 

longer period as the department has 

established or shall fail to perfect an 

appeal of the department’s order 

directing such repair or compensation.’’

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55118). PADEP addressed this 

amendment through an amendment to 

its regulation at 25 Pa. Code 89.143a(d) 

(see 30 CFR 938.16(ooooo) below). As 

discussed in the prior finding, the 

proposed amendment to 25 Pa. Code 

89.143a(d) clarifies the requirement for 

prompt compliance, conditions time 

extensions for abatement on a 

determination that additional 

subsidence is expected to occur, and 

removes all references to ‘‘six month’’

compliance periods. PADEP’s proposed 

change to 25 Pa. Code 89.143a(d) is no 

less effective than the Federal 

regulations. 

We also agree with PADEP’s 

explanation that the escrow provision 

found in Section 5.5(e) of BMSLCA 

eliminates our concern that a perfected 

appeal could stay an enforcement 

action. An enforcement action would 

require the operator to repair or 

compensate for material damage to a 

protected structure. Payment into the 

escrow account by the operator is 

comparable to the Federal regulation of 

30 CFR 817.21(c)(2) which requires 

repair or compensation, thus 

eliminating the need for enforcement 

action. Based on the proposed changes 

to 25 Pa. Code 89.143a(d) and PADEP’s 

explanation, we are removing this 

required amendment and approving 

language in 5.5(f) of BMSLCA that was 

previously not approved.

30 CFR 938.16(aaaaa). ‘‘Pre-1994’’

agreements relating to subsidence 

damage repair or compensation. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to Section 5.6(c) of 

BMSLCA to remove provisions relating 

to agreements executed between April 

27, 1966, and August 21, 1994. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55119). PADEP indicated that the 

agreements referenced under this 

section are no longer a cause for 

concern. PADEP also indicated that it 

believes that these agreements no longer 

play a role in the settlement of structure 

damage cases in Pennsylvania and 

observed that it has encountered no 

situation where repairs or compensation 

were denied on the basis of Section 

5.6(c) of BMSLCA. On this basis, PADEP 

asserts that there is no need to amend 

Section 5.6(c) of BMSLCA. In the 

proposed rule, we requested that the 

public provide copies of these 

agreements if they exist. While we 

received unsigned copies of such 

agreements, we received none that were 

signed. As a result, we have determined 

that PADEP’s assertion that such 

agreements do not influence structure 

damage claims is accurate. As a result, 

we are removing this required 

amendment and approving language in 

Section 5.6(c) of BMSLCA that was 

previously not approved. 

30 CFR 938.16(bbbbb): Reference to 

‘‘pre-1994’’ agreements. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to ensure that the 

provisions of Section 5.6(d) of BMSLCA 

reflect our decision in regard to 30 CFR 

938.16(aaaaa). 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55120). Because of our decision with 

regard to removing the required 

amendment at 30 CFR 938.16(aaaaa), we 

have determined that there is no need 

for this required amendment and we are 

removing it. 

30 CFR 938.16(ccccc). Bonding for 

subsidence damage and water 

replacement. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to Section 6 of BMSLCA to 

71534 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

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. Specifically, we were 

concerned that the Pennsylvania 

program did not provide for an 

adjustment of the bond after subsidence 

damage occurs or did not require a bond 

or a bond increase for damage to land 

or water resources. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55120). PADEP indicated that it requires 

operators to post a subsidence bond 

prior to mining and that the amount of 

this bond is based on the value of land, 

improvements and developed water 

sources and projections of subsidence 

damage. The bonds are recalculated 

each time the permit is renewed and 

each time there is a change in the 

subsidence control plan area. In 

addition, PADEP has proposed to 

amend 25 Pa. Code 86.152(a) to change 

discretionary bond adjustments to 

mandatory adjustments. We have 

approved this proposed change (see the 

discussion for 25 Pa. Code 86.152(a) in 

the section titled, ‘‘Ancillary Changes’’

below). Lastly, for damaged water 

resources, PADEP asserts that a bond for 

damaged water resources is unnecessary 

because its existing regulation at 25 Pa. 

Code 86.168 requires a permittee to 

have liability insurance for the loss or 

diminution in quantity and quality of 

public or private sources of waters. The 

Federal regulations at 30 CFR 800.14 

allow liability insurance in lieu of a 

performance bond. We have determined 

that the proposed changes PADEP is 

making to its regulation at 25 Pa. Code 

86.152(a), and its liability insurance 

provisions of 25 Pa. Code 86.168, 

coupled with PADEP’s explanation of 

its subsidence bond program make its 

proposed regulations no less effective 

than the corresponding Federal 

regulations at 30 CFR 817.121(c)(5). As 

a result, we are removing this required 

amendment. 

30 CFR 938.16(ddddd). Definition of 

de minimis cost increase. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove the definition of 

de minimis cost increase, which appears 

in 25 Pa. Code 89.5 (relating to 

definitions) because it could allow some 

increased operation and maintenance 

costs be passed on to the landowner or 

water user. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55120). PADEP proposed to eliminate 

the de minimis cost increase concept for 

water supplies protected under the 

Federal regulations in its regulation at 

25 Pa. Code 89.145a(f). Pennsylvania’s 

proposed regulation requires that the 

restored or replaced EPAct water supply 

shall not cost the landowner or the 

water user more to operate and maintain 

than the cost of the previous water 

supply. Elimination of de minimis cost 

increases for drinking, domestic, and 

residential water supplies is no less 

effective than the Federal regulations 

which require no increased operating 

and maintenance costs of replacement 

water supplies be passed on to 

landowners and water users. Therefore, 

we are removing this required 

amendment. 

30 CFR 938.16(eeeee). Definition of 

fair market value. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to delete the definition of 

‘‘fair market value’’ from 25 Pa. Code 

89.5.

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55121). PADEP noted that the term ‘‘fair 

market value’’ is used in cases where it 

has determined that affected water 

supplies cannot be replaced. We 

approved this concept under the 

required amendments at 30 CFR 

938.16(nnnn), (oooo), (qqqq), and (rrrr). 

We determined that this definition will 

be necessary in providing compensation 

in those cases where a water supply 

cannot be replaced and the owner is 

compensated for the reduction of the 

fair market value of the structure due to 

the water loss. As a result, we are 

removing this required amendment and 

approving this definition. 

30 CFR 938.16(fffff). Definition of 

permanently affixed appurtenant 

structures. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove the phrase 

‘‘securely attached to the land surface’’

in the definition of ‘‘permanently 

affixed appurtenant structures’’ in 25 

Pa. Code 89.5 because the Federal 

definition of ‘‘occupied residential 

dwelling and structures related thereto’’

does not require such structures be 

securely attached to the land. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55121). To address this requirement, 

PADEP proposes to amend its 

regulations to delete the requirement for 

secure attachment to the land surface for 

the group of ‘‘permanently affixed 

appurtenant structures’’ that falls within 

the scope of the Federal regulations. 

This change will be accomplished by 

deleting the definition ‘‘permanently 

affixed appurtenant structures’’ from 25 

Pa. Code 89.5 and by adding a 

description to 25 Pa. Code 

89.142a(f)(1)(iii) that draws on the 

Federal definition of occupied 

residential dwellings and structures 

related thereto at 30 CFR 701.5, which 

does not have such restrictions. We 

have determined that these revised 

regulations are no less effective than the 

Federal requirements and as a result, we 

are approving them and removing this 

required amendment. 

30 CFR 938.16(ggggg). Subsidence 

control plan—prevention of material 

damage to EPAct structures. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.141(d)(3) 

to expand its requirement that 

subsidence control plans include 

descriptions of the measures to be taken 

to prevent material damage to dwellings 

and related structures and 

noncommercial buildings when mining 

methods do not result in planned 

subsidence. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55122). PADEP proposes extensive 

changes to 25 Pa. Code 89.141(d) and 

89.142a(d) to address our concern and 

to more clearly distinguish between 

requirements pertaining to mining that 

results in planned subsidence versus 

mining that does not result in planned 

subsidence. The proposed amendments 

establish different approaches to 

protecting noncommercial buildings, 

dwellings and related structures (EPAct 

structures) depending on the type of 

mining an operator plans to use. If plans 

involve mining that does not result in 

planned subsidence, an operator must 

take measures to prevent subsidence 

that would cause material damage to 

EPAct structures. If plans involve 

mining that is projected to result in 

planned subsidence, an operator must 

develop his plans around alternate 

measures, which are described in the 

discussion under 30 CFR 

938.16(hhhhh). SMCRA and the Federal 

regulation at 30 CFR 784.20(b) require 

the permittee to describe preventative 

measures for EPAct structures. Since 

Pennsylvania’s amended regulations 

will require preventative measures for 

EPAct structures, we have determined 

that the proposed change to 25 Pa. Code 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71535

89.141(d) and 89.142a(d) with regard to 

structures protected under SMCRA are 

no less effective than the corresponding 

Federal regulations. As a result, we are 

approving the proposed regulations and 

removing this required amendment. 

30 CFR 938.16(hhhhh). Subsidence 

control plan—minimizing material 

damage to EPAct structures. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.141(d)(6) 

to require subsidence control plans to 

include descriptions of the measures to 

be taken to minimize material damage to 

dwellings and related structures and 

noncommercial buildings when mining 

methods are projected to result in 

planned subsidence because 

89.141(d)(6) addressed irreparable 

damage but did not address situations 

where material damage may occur for 

EPAct structures as required by 30 CFR 

784.20(b)(5) and (b)(7).

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55123). In response to our concern, 

PADEP has proposed extensive 

amendments to 25 Pa. Code 89.141(d) 

and 25 Pa. Code 89.142a(d). These 

changes, which are also discussed under 

30 CFR 938.16(ggggg), require 

subsidence control plans to include 

descriptions of the measures to be taken 

when planned subsidence is projected 

to result in material damage to an EPAct 

structure. The measures, which are 

described in proposed 25 Pa. Code 

89.142a(d), include taking measures to 

minimize damage to the extent 

technologically and economically 

feasible; obtaining the landowner’s 

consent to allow damage; and evaluating 

the need for damage minimization 

measures based on cost, health, and 

safety considerations. We have 

determined that these proposed changes 

require, as does the Federal rule at 30 

CFR 784.20(b)(7), a description of the 

methods to be used in areas of planned 

subsidence to minimize material 

damage for EPAct structures, unless the 

owner consented to the material damage 

or the costs of the minimization 

methods would exceed the cost of 

repairs and the material damage does 

not threaten health or safety. Thus, the 

proposed changes make Pennsylvania’s 

regulations no less effective than the 

Federal requirements and we are 

approving them and removing this 

required amendment. 

30 CFR 938.16(iiiii). Measures to 

minimize material damage. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.142a(c)(3) 

to make it no less effective than 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 provides the authority 

to suspend mining until such a plan is 

approved. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55123). PADEP proposes to amend 25 

Pa. Code 89.142a(c)(3) to incorporate the 

provisions we requested by giving 

PADEP the discretion to suspend 

mining. We have determined that these 

proposed changes will make 

Pennsylvania’s program no less effective 

than the Federal rule at 30 CFR 

817.121(e) in dealing with situations 

where approved measures fail to 

prevent material damage or reduce the 

reasonably foreseeable use of public 

buildings and facilities, churches, 

schools, hospitals, impoundments with 

storage capacities of 20 acre-feet or 

more, bodies of water with volumes of 

20 acre-feet or more, and aquifers or 

bodies of water that serve as significant 

sources for public water supply systems. 

We also note that the structures or 

features addressed by this proposed 

regulation are the same as those 

addressed by 30 CFR 817.121(d) and (e). 

As a result, we are approving the 

proposed regulation and removing this 

required amendment. 

30 CFR 938.16(jjjjj). Prevention of 

material damage. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.142a(d) to 

ensure the prevention of material 

damage to occupied residential 

dwellings and community or 

institutional buildings (i.e., EPAct 

structures) in areas where mining is not 

projected to result in planned 

subsidence because this subsection only 

addressed situations where irreparable 

damage was predicted but did not 

address situations where material 

damage may occur for EPAct structures, 

as provided at 30 CFR 817.121(a). 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55124). PADEP proposes to address 

OSM’s concern by amending 25 Pa. 

Code 89.142a(d) to require the 

prevention of material damage in cases 

where operators use mining methods 

that are not projected to result in 

planned subsidence. We have 

determined that this proposed change 

makes Pennsylvania’s regulations no 

less effective than the Federal 

regulations in regard to the protection of 

EPAct structures. As a result, we are 

approving the proposed regulation and 

removing this required amendment. 

30 CFR 938.16(kkkkk). Prompt repair 

or compensation for structure damage. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.142a(f)(1) 

to secure prompt repair or 

compensation to landowners. We made 

a similar requirement at 938.16(tttt) in 

regard to Section 5.4 of BMSLCA (see

discussion under 30 CFR 938.16(tttt).

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55124). PADEP proposes to amend 25 

Pa. Code 89.142a(f)(1) as shown under 

30 CFR 938.16(tttt). Since Pennsylvania 

has proposed to add the word ‘‘prompt’’

to its regulations, we have determined 

that 25 Pa. Code 89.142(a)(f)(1) is no less 

effective than the Federal rule at 30 CFR 

817.121(c) which requires the prompt 

repair or compensation to landowners 

for material damage caused by 

subsidence and we are approving it. 

Since these proposed changes also 

satisfy the required amendment, we are 

removing it. 

30 CFR 938.16(lllll). Repair of 

dwellings and permanently affixed 

appurtenant structures or 

improvements. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 

89.142a(f)(1)(iii) 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.’’

This section is similar to Section 

5.4(a)(3) of BMSLCA. See discussion 

under 30 CFR 938.16(uuuu). 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55124). PADEP proposes to amend 25 

Pa. Code 89.142a(f)(1)(iii) as shown in 

the proposed resolution to 30 CFR 

938.16(uuuu). Since the proposed 

regulation no longer has the limitations 

that were not in the Federal regulation 

at 30 CFR 817.121(c)(5), we have 

determined that this regulation is no 

less effective than the Federal rule and 

we are approving it and removing the 

required amendment. Also, we are 

superseding the language in Section 

5.4(a)(3) of BMSLCA which serves as 

71536 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

the basis for this condition in a separate 

notice published in today’s Federal 

Register. 

30 CFR 938.16(mmmmm). Protection 

of utilities from underground mining 

activities. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.142a(g)(1) 

to require all underground mining 

activities, not just underground mining, 

be conducted in a manner consistent 

with 30 CFR 817.180. The term 

‘‘underground mining activities’’ is 

defined at 30 CFR 701.5 to include 

surface operations incident to 

underground coal extraction or in situ 

processing and underground operations. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55124). In response to the required 

amendment, PADEP is proposing to 

revise 25 Pa. Code 89.142a(g)(1) to 

replace the term ‘‘underground mining’’

with ‘‘underground mining operations.’’

We have determined that this change, in 

combination with the protections 

already provided under existing 25 Pa. 

Code 89.67 (relating to surface mining 

activities associated with an 

underground mine and various 

utilities), is no less effective than the 

Federal regulations at 30 CFR 817.180 

and we are approving it. As a result, we 

are removing this required amendment. 

30 CFR 938.16(nnnnn). Statute of 

limitations on damage repair or 

compensation—claims must be filed 

with PADEP within two years of 

damage. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment 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, we 

required Pennsylvania to submit a 

proposed amendment to remove the 

phrase, ‘‘within 2 years of the date 

damage to the structure occurred.’’ We 

made a similar requirement at 30 CFR 

938.16(xxxx) with regard to Section 

5.5(b) of BMSLCA. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55125). Since 25 Pa. Code 89.143a(c) is 

substantively identical to Section 5.5(b) 

of BMSLCA, please see our discussion 

and proposed resolution under 30 CFR 

938.16(xxxx), including proposed 

amendments to 25 Pa. Code 89.143a(c) 

and OSM supersession described under 

30 CFR 938.16(xxxx). As noted in 30 

CFR 938.16(xxxx), we have determined 

that the changes proposed by PADEP are 

no less effective than the Federal 

regulations and we are approving them. 

As a result, we are removing this 

required amendment. 

30 CFR 938.16(ooooo). Investigation 

and orders for repair of damaged 

structures. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment 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.’’ We made a similar 

requirement at 30 CFR 938.16(yyyy) 

with regard to Section 5.5(c) of 

BMSLCA. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55125). This regulation is similar to 

5.5(c) of BMSLCA. PADEP’s proposal to 

amend 25 Pa. Code 89.143a(d)(3) as 

shown under 30 CFR 938.16(yyyy) is no 

less effective than the Federal 

regulations and we are approving it. The 

proposed regulation also satisfies the 

required amendment at 30 CFR 

938.16(ooooo). See also the discussion 

under 30 CFR 938.16(yyyy) above for 

more information. We are removing this 

required amendment. 

30 CFR 938.16(ppppp). Relief of 

liability for structure damage repair or 

compensation when operator is denied 

access to conduct a premining or 

postmining survey.

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove 25 Pa. Code 

89.144(a)(1), which provides a waiver of 

liability that is inconsistent with 

Federal regulations. This is the same 

issue that was raised under 30 CFR 

938.16(vvvv) in regard to Section 5.4(c) 

of BMSLCA. 

PADEP has proposed changes to 25 Pa 

Code 89.144(a)(1) that restrict this 

waiver so it cannot be raised in cases 

involving EPAct structures. See the 

proposed regulatory amendment and 

our supersession described under 30 

CFR 938.16(vvvv). These amended 

regulations are no less effective than the 

Federal regulations and we are 

approving them. This approval satisfies 

the required amendment under 30 CFR 

938.16(ppppp) and, as a result, we are 

removing it. 

30 CFR 938.16(qqqqq). Water supply 

surveys—various issues. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.145a(a)(1) 

to: (1) Make it clear that the requirement 

that survey information need only be 

obtained to the extent that it can be 

collected without extraordinary efforts 

or the expenditure of excessive sums of 

money is only applicable as it applies to 

inconveniencing landowners; (2) 

remove the provision that allows for 

water supply surveys to be delayed until 

mining advances within 1,000 feet of a 

water supply; and (3) require permittees 

to submit information required by 25 Pa. 

Code 89.145a(a)(1)(i)–(vi) that is 

necessary to meet the provision of 30 

CFR 784.20(a)(3) at the time of 

application for all existing drinking, 

domestic, or residential water supplies. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55125). With regard to the first concern, 

PADEP proposes to amend 25 Pa. Code 

89.145a(a)(1) to replace the condition 

relating to ‘‘extraordinary efforts or 

excessive sums of money’’ with a 

condition relating to ‘‘excessive 

inconvenience to the landowner,’’ so it 

is clear that a survey will be conducted 

unless the landowner is excessively 

inconvenienced. This is no less effective 

than 30 CFR 784.20 that requires the 

permit applicant to conduct a water 

supply survey at its own expense. 

With regard to the second and third 

concerns, state regulatory authorities 

must demonstrate that baseline data at 

the time of the permit application is 

adequate to develop the Probable 

Hydrologic Consequences and 

Cumulative Hydrologic Investigation 

Assessment documents and that any 

delayed water supply surveys would be 

completed before any adverse effect to 

the water supply. PADEP proposed 

amending 25 Pa. Code 89.145a(a)(1) to 

remove the 1,000-foot criterion and 

clarify the requirement to collect 

premining survey information prior to 

the time the water supply is susceptible 

to mining-related effects. The 

determination of when surveys must be 

completed will be made by PADEP 

technical staff based on information in 

the permit application, PADEP database 

information relating to the distances at 

which impacts have been documented 

to occur, and the reviewer’s knowledge 

of conditions in the general area. 

Sampling distances specific to each 

mine and, if appropriate, to individual 

areas within a mine, will be established 

by permit condition. We agree that the 

approach that Pennsylvania proposes is 

reasonable since the environment of the 

individual permit will dictate when the 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71537

water supply will be susceptible to the 

effects of mining and that the entity best 

equipped to deal with this 

determination is PADEP since it has 

available the most unbiased experience 

and information. 

With regard to the third concern, 

PADEP asserts that the proposed 

changes to 25 Pa. Code 89.145a, in 

combination with its proposal to gather 

appropriate premining information 

using the provisions of 25 Pa. Code 

Sections 89.34, 89.35 and 89.36, will 

make Pennsylvania’s premining survey 

requirements as effective as Federal 

counterpart requirements. We agree that 

the baseline data information submitted 

with the permit application (25 Pa. Code 

89.34–36 hydrologic information) and 

the changes to 25 Pa. Code 89.145a are 

adequate to develop the probable 

hydrologic consequences and 

cumulative hydrologic impacts of the 

area. Thus, we have determined that 

PADEP’s proposed changes to 25 Pa. 

Code 89.145a and its interpretation to be 

no less effective than the Federal 

regulations and we are approving it. 

These actions satisfy the required 

amendment under 30 CFR 

938.16(qqqqq) and as a result, we are 

removing it. 

30 CFR 938.16(rrrrr). Water supply 

replacement—promptness of action and 

reasonably foreseeable uses.

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.145a(b) to 

require the ‘‘prompt’’ restoration or 

replacement of water supplies and to 

clarify, if necessary, that the language at 

25 Pa. Code 89.145a(b) 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. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55127). PADEP proposes to address our 

concern regarding prompt restoration by 

amending 25 Pa. Code 89.145a(b) to 

incorporate a requirement for ‘‘prompt’’

action. The ‘‘prompt’’ issue was raised 

under 30 CFR 938.16(iiii) in regard to 

Section 5.1(a)(1) of BMSLCA. See the 

proposed regulatory amendment 

described under 30 CFR 938.16(vvvv) 

for further discussion. PADEP decided 

to address our concern regarding 

reasonably foreseeable uses of water 

supplies by amending 25 Pa. Code 

89.145a(b) to require that restored or 

replacement water supplies must be 

adequate to serve the premining uses of 

the water supply and any reasonably 

foreseeable uses of the water supply. 

This is consistent with what we did 

when we approved the Federal 

definition of ‘‘replacement of water 

supply,’’ where we rejected a 

recommendation that replacement be 

limited to actual use. See 60 FR at 

16726. Thus, we have determined that 

these changes are no less effective than 

the Federal regulations regarding the 

prompt replacement of water supplies 

and the standards for replacement of a 

water supply to its premining quantity 

and quality. As a result, we are 

approving the proposed regulations and 

removing this required amendment. 

30 CFR 938.16(sssss). Water supply 

replacement—prompt provision of 

temporary water. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.145a(e)(1) 

to assure the prompt supply of 

temporary water to all landowners 

whose water supplies have been 

affected by underground mining 

operations regardless of whether the 

water supplies are within or outside of 

the area of presumptive liability. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55127). PADEP proposes to address our 

concern by amending 25 Pa. Code 

89.145a(e) to include a paragraph that 

specifically addresses the provision of 

temporary water supplies when EPAct 

water supplies are affected by 

underground mining activities. This 

new requirement will apply regardless 

of the location of the affected water 

supply with respect to the rebuttable 

presumption area or the operator’s 

rebuttal of the presumption of liability. 

We have determined that the proposed 

change to 25 Pa. Code 89.145a(e) is no 

less effective than the Federal 

regulations regarding replacement of 

water supplies because 30 CFR 701.5 

(replacement of water supply) and 30 

CFR 817.41(j) require the prompt 

replacement of a protected water supply 

on both a temporary and permanent 

basis, regardless of where the water 

supply is located. As a result, we are 

approving this proposed regulation and 

removing this required amendment.

30 CFR 938.16(ttttt). Quality and 

quantity of temporary water supplies. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 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) because the definition of 

‘‘replacement of water supply’’ at 30 

CFR 701.5 applies to both permanent 

and temporary water supplies. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55128). PADEP proposes to address 

OSM’s requirement by amending former 

paragraph 25 Pa. Code 89.145(e)(2), 

which is paragraph (e)(3) under the 

current proposal, to delete the reference 

to premining water needs. Amended 

paragraph (e)(3) will require temporary 

water supplies to meet all needs of an 

affected water user, not just the water 

user’s premining needs. We have 

determined that this change makes the 

Pennsylvania program no less effective 

than the Federal regulations and we are 

approving it. As a result, we are 

removing this required amendment. 

30 CFR 938.16 (uuuuu). De minimis 

cost increase. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to revise 25 Pa. Code 

89.145a(f)(1)(v) to make it clear that cost 

increases associated with the operation 

and maintenance of a restored or 

replacement water supply may not be 

passed on to the water user. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55128). As explained in discussions 

under 30 CFR 938.16(pppp) and 

(ddddd), PADEP proposes to amend 25 

Pa. Code 89.145a(f) to address our 

concern. The amendments require that, 

in the case of an EPAct water supply, 

the restored or replacement water 

supply shall cost no more to operate and 

maintain than the previous water 

supply. As discussed earlier, this 

change is no less effective than the 

Federal regulations regarding 

replacement of water supplies and we 

are approving it. As a result, we are 

removing the required amendment at 30 

CFR 938.16(uuuuu). 

30 CFR 938.16(vvvvv). Reasonably 

foreseeable use—adequate quantity. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 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. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55129). PADEP has addressed our 

concerns by affirming that it will 

consider all reasonably foreseeable 

drinking, domestic and residential uses 

when evaluating the adequacy of 

71538 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

restored EPAct water supplies or 

replacements for EPAct water supplies. 

PADEP further affirms that evaluations 

will be based on the location and 

characteristics of the property as well as 

the apparent and documented needs of 

the current water user. Pennsylvania’s 

interpretation of its program makes it no 

less effective than the Federal 

regulations at 30 CFR 701.5 regarding 

replacement of water supplies. As a 

result, we are removing the required 

amendment at 30 CFR 938.16(vvvvv). 

30 CFR 938.16(wwwww). Water 

supply problems—investigation time 

frames. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.146a(c) to 

the extent the time frames for PADEP 

investigations are longer than those in 

Pennsylvania’s approved citizen 

complaint procedures. This issue is 

discussed under 30 CFR 938.16(kkkk) in 

regard to Section 5.2(b)(2) of BMSLCA. 

For a complete discussion, please see 

our finding for Section 5.2(b)(2) of 

BMSLCA under 30 CFR 938.16(kkkk). 

Section 5.2(b)(2) was the basis for the 

investigation timeframes in 25 Pa. Code 

89.146a(c)(1). PADEP’s proposal to 

revise 25 Pa. Code 89.146a(c) to impose 

on itself an obligation to report water 

supply problem investigations to 

claimants within 10 days of completing 

the investigation is no less effective than 

the Federal regulations at 30 CFR 842.12 

regarding time frames for investigations 

of citizen complaints. As a result, we are 

approving this proposed regulation and 

removing this required amendment. 

30 CFR 938.16(xxxxx). Relief of 

liability for water supply replacement 

when the adverse effect occurs more 

than three years after the mining 

activity. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.152(a) to 

remove paragraph (2), which provides 

for relief of an operator’s liability when 

water supply impacts are due to 

underground mining activities that took 

place more than three years prior to the 

onset of water supply problems. See our 

discussion under 30 CFR 

938.16(mmmm) in regard to 5.2(e)(2) of 

BMSLCA. Since we determined that 

Pennsylvania’s amended definition of 

‘‘underground mining activities’’ is no 

less effective than the Federal 

regulations and PADEP’s interpretation 

reasonable, for the reasons given in our 

discussion at 30 CFR 938.16(mmmm), 

we are removing this required 

amendment. 

30 CFR 938.16(yyyyy). Two-year 

reporting limit on water supply effects. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 89.152(a) to 

remove paragraph (4), which provides a 

release of liability when water supply 

problems are reported more than two 

years after the date of occurrence 

because SMCRA does not set a time 

limit for when an EPAct water supply 

claim must be made. For further 

information see our discussion under 30 

CFR 938.16(jjjj) in regard to Section 

5.1(b) of BMSLCA.

PADEP has proposed changes that 

will eliminate the two-year statute of 

limitations on filing claims involving 

EPAct water supplies. These changes 

will be accomplished through 

amendments to 25 Pa. Code 89.152(a) 

and through our action superseding 

Section 5.1(b) of BMSLCA to the extent 

it applies to EPAct water supplies. We 

have determined that Pennsylvania’s 

proposed regulation at 25 Pa. Code 

89.152(a) is no less effective than the 

Federal regulations and we are 

approving it and we are removing this 

required amendment. 

30 CFR 938.16(zzzzz). Compensation 

in lieu of water supply replacement. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to remove 25 Pa. Code 

89.152(a)(5)(i), which provides for a 

release of liability in cases where 

operators have addressed their water 

supply replacement obligations through 

a property purchase or by compensating 

a landowner for the resultant reduction 

in fair market value of the affected 

property. See our discussion under 30 

CFR 938.16(nnnn), (oooo), (qqqq) and 

(rrrr) regarding compensation in lieu of 

water supply replacement. 

PADEP has proposed changes that 

will limit the conditions under which 

an EPAct water supply claim can result 

in compensation. PADEP proposes to 

amend 25 Pa. Code 89.152(a) to 

establish specific conditions that must 

be satisfied in situations where EPAct 

water supplies may not be restored or 

replaced. We have superseded 

conflicting provisions in Sections 5.2(g) 

and (h) of BMSLCA in a separate 

rulemaking published in today’s 

Federal Register. For these reasons 

discussed under 30 CFR 938.16(nnnn), 

(oooo), (qqqq) and (rrrr), we have 

determined that the proposed changes 

to 25 Pa. Code 89.152(a) are not 

inconsistent with the Federal 

regulations and we are approving them. 

We have also determined that approval 

of these proposed regulations satisfies 

the requirements of the required 

amendment at 30 CFR 938.16(zzzzz) and 

therefore, we are removing it. 

30 CFR 938.16(aaaaaa).

Compensation in lieu of water supply 

replacement—relief of liability under 

voluntary agreements. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 25 Pa. Code 

89.152(a)(5)(ii) to delete the provision 

allowing compensation in lieu of 

restoration or replacement of affected 

water supplies. We further directed that 

the amendment must clarify 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. See discussion 

under 30 CFR 938.16(nnnn), (oooo), 

(qqqq) and (rrrr) regarding 

compensation in lieu of water supply 

replacement.

PADEP addressed the required 

amendment through proposed 

amendments to 25 Pa. Code 89.152 as 

described in the discussion under 30 

CFR 938.16(nnnn), (oooo), (qqqq) and 

(rrrr). As noted earlier, we have 

determined that the proposed changes 

to 25 Pa. Code 89.152(a) are not 

inconsistent with the Federal 

regulations. We are therefore approving 

these changes and are removing the 

required amendment at 30 CFR 

938.16(aaaaaa). 

30 CFR 938.16(bbbbbb).

‘‘Underground mining operations’’ and 

notification of mining. 

Required Amendment: We required 

Pennsylvania to submit a proposed 

amendment to 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 which uses the term 

‘‘underground mining operations’’ and 

includes more activities than just the 

extraction of coal. 

For a full explanation of PADEP’s 

rationale for proposed removal of this 

required amendment, see the September 

22, 2003, proposed rule (68 FR at 

55130). PADEP proposes to address our 

concern by amending 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), 

89.142a(i)(1), 89.143a(a), 89.143a(d)(1), 

89.143a (d)(2), 89.143a(d)(3) to 

incorporate the term ‘‘underground 

mining operations.’’ These changes will 

make the respective parts of Chapter 89 

no less stringent than SMCRA and we 

are approving them. 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71539

PADEP is, however, proposing to 

leave 25 Pa. Code Sections 89.155(b)(1) 

and (2) and 89.155(c) unchanged. These 

requirements pertain to notifications 

operators must provide to overlying 

property owners, utilities and 

government entities, to inform them of 

planned mining. OSM was initially 

concerned that activities such as 

development activities and blasting 

would not be cause for operators to 

notify these parties. However, PADEP 

interprets its definition of ‘‘underground 

mining’’ at 25 Pa. Code 89.5 to include 

these activities as a part of the process 

of extraction of coal in an underground 

mine. Therefore, property owners, 

utilities, and political subdivisions 

would be notified of these activities as 

part of the requirements of 25 Pa. Code 

Sections 89.155(b)(1) and (2) and 

89.155(c). Based on Pennsylvania’s 

interpretation of its definition, which 

we find reasonable, these requirements 

make Pennsylvania’s notification 

requirements no less effective than 

Federal counterpart requirements. 

Accordingly, we agree that there is no 

need to amend 25 Pa. Code Sections 

89.155(b)(1) and (2) or 89.155(c) to 

incorporate the term ‘‘underground 

mining operations’’ and, based on 

PADEP’s interpretation, we are 

approving the term ‘‘underground 

mining’’ in 25 Pa. Code 89.155(b)(1) and 

(2) and 89.155(c). Therefore, we are 

removing this required amendment. 

Ancillary Changes 

PADEP is proposing some changes to 

25 Pa. Code Chapters 86 and 89 that we 

did not specifically require in the final 

rule of December 27, 2001, but relate to 

requirements imposed by the rule. 

These changes are as follows: 

25 Pa. Code 86.1, Definitions and 25 Pa. 

Code 89.5, Definitions 

PADEP is proposing to amend the 

definition of ‘‘underground mining 

activities’’ in 25 Pa. Code 86.1 and 89.5 

to use the phrase ‘‘support facilities 

located underground’’ rather than 

‘‘underground support facilities.’’ The 

change was made to insure that surface 

facilities in support of underground 

operations are not included in the term 

underground mining operations. This 

change only clarifies the existing 

regulation and does not limit the 

coverage of the definition. Therefore, we 

have determined that this change is no 

less effective than part (b) of the Federal 

definition of ‘‘underground mining 

activities’’ at 30 CFR 701.5 which also 

refers to underground operations. 

PADEP made a similar change to the 

definition of underground mining 

operations at 25 Pa. Code 89.5. We also 

have determined that this change to be 

no less effective than the Federal 

regulations and we are approving it. 

25 Pa. Code 86.151(b)(2) 

PADEP is also proposing a change to 

its bonding regulations at 25 Pa. Code 

86.151(b)(2) in addition to the changes 

to that section proposed to satisfy the 

required amendment at 30 CFR 

938.16(ccccc). This proposed change 

clarifies the requirement to maintain 

subsidence bonds for a period of 10 

years after the completion of 

underground mining operations. The 

former language defined the period of 

liability as extending for 10 years from 

completion of ‘‘mining and reclamation 

operations’’—a vague term that was not 

defined in the BMSLCA or 

Pennsylvania’s regulations. PADEP 

explained that this change will maintain 

the status quo regarding the liability 

period for subsidence bonds. It also 

avoids confusion over whether the 10 

year period extends from completion of 

underground mining operations or 

underground mining activities, which 

includes surface operations that would 

not be subject to the subsidence bond. 

We have determined that the proposed 

amendment does not constitute a 

substantive change in Pennsylvania’s 

approved program and is not 

inconsistent with Section 509 of 

SMCRA which requires liability for the 

duration of the mining and reclamation. 

25 Pa. Code 86.152(a) 

PADEP’s proposed change to 25 Pa. 

Code 86.152(a) adds a provision to the 

end of the subsection clarifying that the 

requirement to periodically reevaluate 

and adjust the bonds is not a basis for 

extending the coverage of subsidence 

bonds beyond the requirements of 

Sections 5, 5.4, 5.5, and 5.6 of BMSLCA. 

PADEP has indicated that this provision 

will ensure that subsidence bonds will 

be recalculated on the basis of projected 

costs of repairing land and structure 

damage and not on the basis of other 

obligations such as water supply 

replacement. We have determined that 

PADEP’s methods of assuring that water 

supplies will be replaced through 

liability insurance are no less effective 

than the Federal regulations (see 30 CFR 

938.16(ccccc) above). As a result, we 

have determined that the clarification to 

this section about its subsidence bond 

does not alter that finding and is no less 

effective than 30 CFR 817.121(c)(5) and 

we are approving it.

25 Pa. Code 89.5, Definitions 

PADEP is proposing to add 

definitions of the terms ‘‘EPAct 

structures’’ and ‘‘EPAct water supplies’’

under the definitions at 25 Pa. Code 

89.5. In its August 27, 2003, submission 

to us, PADEP noted that these 

definitions are derived from 

descriptions in Section 720(a) of 

SMCRA and the definitions of the terms 

‘‘drinking, domestic or residential water 

supply,’’ and ‘‘occupied residential 

dwelling and structures related thereto’’

in 30 CFR 701.5. PADEP is adding these 

definitions to identify structures and 

water supplies covered under the 

Federal program and to distinguish 

them from structures and water supplies 

covered exclusively under State law. 

PADEP’s definition of EPAct structures 

refers to structures that are subject to 

repair and compensation requirements 

under Section 720(a) of SMCRA. 

PADEP’s definition of EPAct water 

supplies refers to water supplies that are 

subject to replacement under Section 

720(a) of SMCRA. Additionally, PADEP 

notes that wells and springs that serve 

only agricultural, commercial or 

industrial enterprises, except to the 

extent the water supply is for direct 

human consumption or human 

sanitation or domestic use, are not 

included. PADEP has used these terms 

throughout its proposed regulations to 

differentiate structures and water 

supplies covered under the Federal 

regulations from those covered 

exclusively under the State program. We 

have determined that these definitions 

will ensure that Pennsylvania will 

protect all water supplies and structures 

protected under the Federal regulations. 

Therefore, these definitions are no less 

effective than the Federal provisions 

and we are approving them. 

25 Pa. Code 89.142a(c) 

PADEP made an editorial correction 

in this section changing the term 

‘‘surface features’’ to ‘‘features listed in 

subparagraph (i)–(v).’’ This section 

provides that unless the subsidence 

control plan demonstrates that 

subsidence will not cause material 

damage to or reduce the reasonably 

foreseeable use of the features listed in 

this section, underground mining will 

be prohibited beneath or adjacent to the 

features. PADEP made this change to 

assure that features such as aquifers, 

which are not surface features, are 

protected under this section. We have 

determined that this clarification will 

not limit the types of features to be 

protected under this provision and 

therefore, it is no less effective than the 

Federal regulations at 30 CFR 

817.121(d) which also refers to features 

and we are approving it. 

71540 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

IV. Summary and Disposition of 

Comments 

Public Comments 

We asked for public comments on the 

amendment (Administrative Record No. 

PA 841.68), and received responses 

from the groups noted above in ‘‘Section 

II. Submission of the Proposed 

Amendment.’’ On the same day that we 

published and opened the comment 

periods for this amendment, we 

published and opened the comment 

period for the proposed action to 

supersede certain sections of BMSLCA. 

Comments were submitted for both 

proposed actions. While the comments 

were considered for both actions, some 

comments are more appropriately 

addressed in the final rule superseding 

portions of BMSLCA than in this rule. 

The comments and our response to 

those comments are incorporated by 

reference into this rule. For a full 

discussion of PCA’s comments on 

Sections 5.4(a)(3), 5.4(c), and 5.2(g) and 

(h) of BMSLCA and Tri-States’

comments on Sections 5.2(g) and (h), 

please see the final rule (PA–141–FOR) 

superseding portions of BMSLCA that is 

published in today’s Federal Register. 

This rulemaking generated a wide 

range of comments in writing and at 

public hearings. The majority of the 

comments specifically addressed the 

proposals submitted by PADEP to 

satisfy the required amendments of the 

December 27, 2001, final rule. However, 

there were many comments submitted 

that were not responsive to this 

rulemaking. 

We received a number of comments 

about the importance of replacing water 

supplies and repairing structures. 

Sometimes these comments were 

included with a specific point about a 

topic of this rulemaking, and sometimes 

the comments appear to have been made 

to emphasize the importance of meeting 

the basic requirements of EPAct. 

Because comments related to the basic 

requirements of EPAct were considered 

in the December 27, 2001, rulemaking 

and were addressed at that time, we 

have not responded to them again as 

part of this rulemaking.

We received many general comments 

expressing concerns about the potential 

impacts of underground mining to a 

range of hydrologic resources. The 

comments primarily mentioned impacts 

to streams, springs, and ponds. In 

addition, the comments mentioned 

provisions of the Federal Clean Water 

Act, the Pennsylvania Clean Streams 

Law, and Pennsylvania regulations 

related to the placement of fill material 

in waters of the Commonwealth of 

Pennsylvania. This rulemaking concerns 

proposed revisions to the Pennsylvania 

program submitted to address 

requirements under the Federal EPAct 

and implementing regulations. EPAct 

established new requirements for the 

replacement of drinking, domestic, and 

residential water supplies and the repair 

or compensation of damage to occupied 

dwellings and structures related thereto 

and noncommercial buildings. EPAct 

did not revise any of the existing 

SMCRA provisions concerning the 

protection of the overall hydrologic 

balance relative to streams, springs, 

aquifers, and ponds. In addition, EPAct 

did not revise any SMCRA standards 

related to the implementation of the 

Federal Clean Water Act. Because 

comments related to the basic 

hydrologic protection requirements of 

SMCRA were considered in the 

rulemaking efforts at the time they were 

implemented, we have not responded to 

them again as part of this rulemaking. 

We received a number of comments 

expressing concerns about how property 

owners are not allowed to control the 

subsidence damage abatement process. 

The comments ranged from expressing a 

desire to be able to choose their own 

contractors to disappointment that 

mining could result in significant 

disruption to their lives without their 

approval. We also received comments 

alleging that coal companies delay 

settlements with property owners and 

general complaints that agencies were 

not meeting their regulatory 

responsibilities. In 1992, EPAct put into 

place basic requirements that mining 

companies repair or compensate for 

damage to occupied dwellings and 

structures related thereto and 

noncommercial buildings and that they 

replace adversely affected drinking, 

domestic, and residential water 

supplies. The Federal requirements did 

not address how property owners and 

mining companies are to agree on the 

selection of contractors or the timing of 

mining activities. Because this 

rulemaking concerns amendments 

proposed to address deficiencies noted 

in OSM’s December 27, 2001, final rule, 

comments on such matters are outside 

the scope of this final rule. 

Finally, there were several comments 

that characterized the December 27, 

2001, rulemaking as an attempt by OSM 

to require the State program to be a 

‘‘mirror image’’ of the Federal EPAct 

regulations, and indicated that we were 

applying the same approach for this 

rulemaking. The comments clearly 

mischaracterize the process OSM used 

to evaluate the adequacy of 

Pennsylvania’s amendments and 

proposals to resolve identified 

deficiencies. Our December 27, 2001, 

final rule and this final rule incorporate 

provisions specific to the Pennsylvania 

program, such as protection of 

agricultural structures and water 

supplies (e.g., premining uses of the 

supply or any reasonably foreseeable 

uses of the supply). In addition, this 

final rule acknowledges the 

appropriateness of BMSLCA’s 

compensation provision for the 

property’s diminished value in the 

instances where it is technically 

impossible to develop an equivalent 

replacement of the water supply. We 

applied ‘‘no less stringent than’’ and 

‘‘no less effective than’’ review 

standards when evaluating proposed 

changes to the statute and regulations, 

respectively. 

We will address the comments we 

received according to the pertinent 

required amendment. 

30 CFR 938.16(hhhh) Reference 

relating to bonding requirements. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(iiii) Prompt 

replacement of water supplies. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(jjjj) Two-year reporting 

limit on water supply effects. 

We received comments from three 

citizens expressing support for 

eliminating the two year limit on filing 

water supply damage claims 

requirement from Section 5.1(b) of 

BMSLCA and the corresponding 

regulation at 25 Pa. Code 89.152(a)(4) 

(Administrative Record Nos. PA 841.70, 

841.74 and 841.79). We agree with the 

commenters that statute of limitations, 

as it applies to water supplies protected 

under EPAct, is not consistent with 

SMCRA and the Federal regulations.

PCA opposed PADEP’s proposed 

resolution to this required amendment 

because it believes that Pennsylvania is 

authorized by Section 101(f) of SMCRA 

to impose reasonable conditions on the 

rights of property owners to pursue 

claims for domestic water loss. This 

section provides that the primary 

authority for developing, authorizing, 

issuing, and enforcing regulations for 

surface mining and reclamation 

operations should rest with the States. 

PCA indicated that further discussion of 

this point was included in its response 

to 30 CFR 938.16(nnnnn). While we 

agree with PCA that Pennsylvania has 

the right to promulgate regulations, this 

provision must be read in conjunction 

with Sections 503 and 505 of SMCRA 

which provide for our review of State 

statutes and regulations to determine if 

they are as effective as, and not 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71541

inconsistent with, the Federal program. 

For more information on our response to 

PCA regarding this issue, please see our 

response to comments on 30 CFR 

938.16(nnnnn). 

We also received comments from TriState (Administrative Record No. PA 

841.94). Tri-State indicated that it did 

not want separate protections for EPAct 

and non-EPAct water supplies. Tri-State 

recommended that Section 5.1(b) of 

BMSLCA be superseded. 

We acknowledge Tri-State’s concerns 

with water supply replacement. 

However, Federal regulations only 

require restoration of drinking, domestic 

or residential water supplies affected by 

underground mining operations. If a 

State program provides for protection of 

water supplies that are outside the 

scope of SMCRA protection, those 

provisions are more stringent than 

SMCRA and cannot be construed as 

inconsistent with SMCRA. As a result, 

we are superseding Section 5.1(b) of 

BMSLCA to the extent it would apply to 

water supplies covered under Section 

720 of SMCRA and approving PADEP’s 

regulation change at 25 Pa. Code 89.152. 

For more information and response to 

comments regarding the superseding of 

Section 5.1(b) of BMSLCA, see our final 

rule on superseding portions of 

BMSLCA published today in the 

Federal Register. 

30 CFR 938.16(kkkk) Water supply 

replacement: Promptness of actions. 

The Sierra Club (Administrative 

Record No. PA 841.75), Tri-State 

(Administrative Record No. PA 841.94), 

and one citizen (Administrative Record 

No. PA 841.70) commented that a threeyear period was too long for a 

landowner to be without a water supply. 

The Sierra Club also commented that 

even with the implementation of the 

proposed resolution to this required 

amendment, Pennsylvania’s program 

could still allow three years for 

establishment of a permanent 

replacement water supply. These 

comments center around language in the 

BMSLCA that provides that PADEP can 

issue orders requiring the provision of a 

permanent alternate source where the 

contamination, diminution or 

interruption does not abate within three 

years of the date the supply was 

affected. The changes PADEP has made 

to 25 Pa. Code 89.145a(b), regarding 

prompt replacement of water supplies, 

coupled with the changes to 25 Pa. Code 

89.146a(c), regarding insuring that the 

citizen complaint procedures are 

followed, will insure that water supplies 

are replaced as promptly as possible. 

We acknowledge that it may take up to 

three years or, in rare cases, even longer 

to provide permanent replacement, 

depending on the individual site 

conditions. Additionally, PADEP stated 

that the three year period is the outer 

limit for permanent water restoration or 

replacement and that it can take 

enforcement action sooner than three 

years. The proposed addition of the 

‘‘prompt’’ standard to its regulations 

will give PADEP the tool it needs to 

insure that operators are working 

diligently and timely in attempting to 

provide a permanent water supply 

replacement. We have determined that 

PADEP’s interpretation, along with the 

proposed regulatory amendments 

Pennsylvania submitted, is no less 

effective than the Federal requirements 

for water replacement because the 

Federal regulations have no specific 

time frames for providing permanent 

restoration or replacement of water 

supplies. Tri-State was also concerned 

that PADEP’s interpretation differs from 

a previous interpretation and that 

PADEP could easily change its 

interpretation again. We disagree that 

Pennsylvania’s actions are arbitrary 

because PADEP now is adding the 

‘‘prompt’’ standard to its water supply 

replacement requirement, thus it is 

reasonable that its interpretation must 

be adjusted accordingly. Additionally, 

our approval is based on the amended 

regulation and its interpretation. Any 

significant changes would be subject to 

30 CFR 732.17. As a result, we are 

approving the changes Pennsylvania 

made to 25 Pa. Code Sections 89.145a(b) 

and 89.146a(c). 

30 CFR 938.16(llll). Denial of access 

for premining survey and its effect on 

affirmative proof of water supply 

contamination, diminution or 

interruption.

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(mmmm). Relief of 

liability for water supply replacement 

when the adverse effect occurs more 

than three years after mining activity. 

PCA opposes the proposed resolution 

to this required amendment because it 

believes that BMSLCA provides that 

claims must be submitted three years 

after mining activity has occurred 

(Administrative Record No. PA 841.84). 

Further, PCA does not agree with 

PADEP’s interpretation that the phrase, 

‘‘3 years after mining activity occurs’’

includes post closure mine pool 

maintenance as the change to the 

definition of underground mining 

activities in 25 Pa. Code Sections 86.1 

and 89.5 indicates. According to 

PADEP, it has always interpreted the 

term ‘‘mining activity,’’ as applied to 

underground mines, to mean the last 

aspect of reclamation. PADEP has 

advised us that the last aspect of 

reclamation includes management of the 

post closure mine pool. PADEP is 

clarifying this meaning by revising its 

definition of underground mining 

activities to include specifically post 

closure mine pool maintenance. We 

have determined that PADEP’s 

interpretation of its program with regard 

to when underground mining activities 

are completed will insure that impacts 

to all water supplies protected under the 

Federal regulations will be covered 

under the Pennsylvania program. As a 

result, we are approving the changes to 

the definition of underground mining 

activities and we are removing this 

required amendment. If PCA is not 

satisfied with Pennsylvania’s change to 

its definitions, it must work through 

Pennsylvania’s regulatory review 

process to address any concerns. 

30 CFR 938.16(nnnn), (oooo), (qqqq), 

(rrrr). Compensation in lieu of water 

supply replacement. 

Tri-State (Administrative Record No. 

PA 841.94) commented that it opposes 

any regulation that does not mandate 

replacement of a water supply or the 

prohibition on mining areas that 

provide recharge for a water source. TriState further commented that Sections 

5.2(g) and (h) and 5.3 of BMSLCA allow 

operators to destroy water supplies and 

escape liability for replacement and the 

Sierra Club (Administrative Record No. 

PA 841.75) commented that purchase of 

property in lieu of replacement of water 

supplies should not be allowed. 

Additionally, legal counsel for 

Representative William DeWeese of 

Greene County recommended 

(Administrative Record No. PA 841.89) 

that where a landowner does not want 

his water replaced, but PADEP 

determined that the water supply could 

be replaced in the future, any 

compensation for the water supply 

should be placed into escrow for future 

development of the water supply. 

We believe the commenters 

misinterpreted PADEP’s change to its 

regulation and what we approving. We 

are not approving compensation to 

landowners in lieu of replacement of 

water supplies. The only time that a 

landowner may waive establishment of 

a water supply is when it is not needed 

for the postmining land use. Even then, 

the regulatory authority must determine 

that a supply is available for future 

development. What we are approving is 

PADEP’s change to 25 Pa. Code 

89.152(a) which recognizes that in rare 

instances a water supply cannot be 

replaced. While Federal requirements 

are silent on how property owners are 

to be treated when it is impossible to 

replace an adversely affected water 

71542 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

supply with a supply meeting the 

requirements of the EPAct, 

Pennsylvania’s proposals to authorize a 

payment to the landowner are not 

inconsistent with Federal provisions 

requiring compensation to property 

owners for the diminution in fair market 

value to their property. 

There is nothing in the Pennsylvania 

regulations that allows an operator to 

escape liability for water supply 

replacement of drinking, domestic or 

residential water supplies. All replaced 

or restored drinking, domestic or 

residential water supplies must meet the 

standards of 25 Pa. Code 89.145a 

regarding quality and quantity. In the 

rare cases where PADEP has determined 

that a water supply meeting the criteria 

at 25 Pa. Code 89.145a cannot be 

developed, compensation for reduction 

of fair market value of the affected 

property served by the water supply is 

required at a minimum. Therefore, 

Pennsylvania’s regulations place 

affirmative obligations on the operator 

for restoration or replacement of such 

supplies and do not allow acceptance of 

a substandard drinking, domestic or 

residential replacement or restoration 

water supplies. As a result, we are 

approving Pennsylvania’s regulation 

changes and we are removing this 

required amendment. 

Please see our response in the final 

rule superseding portions of BMSLCA, 

published in today’s Federal Register, 

regarding Tri-State’s comments that 

Section 5.3 of BMSLCA conflicts with 

amended 25 Pa. Code 89.152, its 

opposition to two classes of water 

supplies, and PCA’s comments on this 

required amendment. 

30 CFR 938.16(pppp). Permanent 

alternate source definition. 

Tri-State (Administrative Record No. 

PA 841.94) commented that PADEP’s 

changes to 25 Pa. Code Sections 89.5 

and 89.145a(f) conflict with Section 

5.2(i) of BMSLCA which makes the 

Pennsylvania program less effective 

than the Federal regulations. We 

disagree with the comment. As a matter 

of course, PADEP must interpret statutes 

when creating regulations to enforce 

those statutes. Generally, courts grant 

deference to an agency’s interpretation 

of a statute that the agency implements. 

The regulations, which Pennsylvania 

amended, clearly state a restored/

replaced EPAct water supply ‘‘shall not 

cost the landowner or water user more 

to operate and maintain than the 

previous water supply.’’ Thus, 

Pennsylvania’s interpretation is also 

part of the implementing regulations. 

PCA (Administrative Record No. PA 

841.84) commented that it does not 

oppose the proposed resolution for this 

required amendment, but it believes we 

applied the wrong standard of review to 

the definition of Pennsylvania’s de 

minimis cost provisions at 89.145a(f). 

PCA believes litigation in Pennsylvania 

established the de minimis cost 

provisions and our requirement to 

modify them was unnecessary.

We disagree with PCA’s 

characterization of the de minimis 

provisions of Pennsylvania’s 

regulations. The ‘‘de minimis’’ cases 

decided by the Environmental Hearing 

Board (EHB) do not set forth law of 

general application across the State of 

Pennsylvania. Those cases only decided 

the issue based on the specific facts of 

the individual cases. While the concept 

of a de minimis cost increase (i.e. a cost 

that cannot be calculated) for operating 

and maintenance costs for replacement 

water supplies is acceptable in the 

Federal regulations, Pennsylvania’s 

characterization of de minimis costs as 

$60 per year or a 15% increase of the 

annual operating cost of the previous 

water supply does not fit that concept. 

Under the Pennsylvania definition of de 

minimis cost increase, landowners 

could be forced to pay more operating 

and maintenance costs for a 

replacement water supply than they did 

for the premining water supply. 

Requiring a landowner to pay these 

costs is less effective than the Federal 

regulations that require operators to 

absorb any increased operating and 

maintenance costs. As a result, we are 

approving Pennsylvania’s proposed 

changes to its regulations at 25 Pa. Code 

Sections 89.5 and 89.145a(f). 

30 CFR 938.16(ssss). Other remedies 

available under State law. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(tttt). Prompt repair or 

compensation for structure damage. 

We received no direct comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(uuuu). Repair of 

dwellings and permanently affixed 

appurtenant structures or 

improvements. 

We received comments from PCA and 

NMA regarding the superseding of 

Section 5.4(a)(3) of BMSLCA with 

regard to this required amendment. 

Please see our responses to these 

comments in our final rule notice 

published in today’s Federal Register in 

which we are superseding portions of 

BMSLCA. 

30 CFR 938.16(vvvv). Relief of liability 

for structure damage repair or 

compensation when an operator is 

denied access to conduct a premining or 

postmining survey. 

We received comments from a citizen 

(Administrative Record No. PA 841.74) 

indicating that operators should not be 

relieved of liability for subsidence 

damage due to underground mining 

where a landowner denies access to the 

operator for a premining survey. 

With regard to structures protected by 

the Federal regulations, we agree in 

principle with the comment, but 

recognize the difficulty of implementing 

repairs when access for premining 

surveys has been denied. With the 

change to Pennsylvania’s regulations at 

25 Pa. Code 89.144a(b), the relief of 

liability for denial of operator access for 

a premining survey for EPAct protected 

structures does not apply. However, all 

parties involved in the repair or 

compensation of damage from 

subsidence must fully recognize the 

importance of a premining survey in 

accurately documenting the extent of 

damage. Without these surveys, 

property owners and the regulatory 

authority must, by a preponderance of 

evidence, establish the specific 

instances of damage that is attributed to 

the subsidence from underground 

mining. Initial Federal regulations 

provided that a landowner who did not 

allow access for a premining survey 

would only forfeit the presumption of 

liability of damage (the presumption of 

liability concept was later suspended 

from the Federal regulations). The 

Federal regulations did not, and still do 

not, provide for relief of an operator’s 

liability when access to conduct a 

survey was denied. We believe that 

PADEP’s language as amended in 25 Pa. 

Code 89.144a(b) is consistent with the 

goals of encouraging landowners to 

allow premining surveys while 

preserving their rights for repair or 

compensation of subsidence damage 

that is caused by underground mining. 

As a result, we are approving the 

changes to Pennsylvania’s program and 

we are removing this required 

amendment. 

30 CFR 938.16(wwww). Repair or 

compensation for damaged structures. 

We received a comment from TriState (Administrative Record No. PA 

841.94) that Section 5.4(c) of the 

BMSLCA should be changed to allow all 

landowners, whether or not their 

structures are protected under EPAct, to 

have the same protections as the Federal 

regulations.

PADEP is revising its regulations to 

provide protections consistent with the 

Federal regulations regarding EPAct 

structures. However, BMSLCA provides 

additional repair and compensation 

provisions that are applicable to 

structures not protected under EPAct. 

There is nothing in the Federal 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71543

regulations preventing a State from 

adopting different standards for nonFederally protected structures and water 

supplies than for Federally protected 

structures and water supplies. 

30 CFR 938.16(xxxx). Structure 

Damage—Six-month negotiation period 

and two-year claim filing period. 

We received comments from two 

citizens (Administrative Record Nos. PA 

841.79 and 841.70), Tri-State 

(Administrative Record No. PA 841.94), 

and PCA (Administrative Record No. 

841.84). The citizens and Tri-State 

indicated that no limit should be placed 

on landowners to file claims of 

subsidence related damage. 

Additionally, one of the citizens 

indicated that a bond should be in place 

to pay subsidence damage in the event 

that a company goes bankrupt; the 

bonds will then be available for damage 

repair. Our review determined that the 

revision to 25 Pa. Code 89.143a(c) is no 

less effective than the Federal 

regulations regarding current and future 

subsidence damage claims. Any 

subsidence damage to protected 

structures occurring from mining after 

the effective date of the 1994 

amendments to BMSLCA must be 

repaired or compensated for by the 

operator. There is nothing in 25 Pa. 

Code 89.143a(c), as it is currently 

written, that is contrary to this 

requirement. As for the comment 

regarding bonding, Pennsylvania 

requires a subsidence bond to be 

submitted at the time of permitting and 

25 Pa. Code 86.152 requires that the 

bond be adjusted when future 

reclamation changes. This bond covers 

the potential damage to property and 

will be available for damage repairs in 

the event of a company’s bankruptcy. 

PCA commented that PADEP should 

not have the ability to issue orders for 

damage repair, except for emergency 

situations, for six months following the 

first report of damage. PCA believes 

landowners and operator should be 

afforded the opportunity within the six 

months to resolve a subsidence claim 

amicably. 

PCA’s suggestion is not in accordance 

with Federal requirements for 

investigating citizen complaints at 30 

CFR 842.12 and taking enforcement 

actions at 30 CFR 843.12(c), both of 

which may have a time period shorter 

than six months. As noted in the 

preamble to the September 22, 2003, 

proposed rule (68 FR at 55117), PADEP 

indicated that it has the authority to 

take enforcement action prior to the 

expiration of the six-month negotiation 

period. This authority is found in 

Section 9 of BMSLCA. While taking 

enforcement actions prior to the 

expiration of the six month period will 

focus on requirements for emergency 

temporary repair measures, there is no 

guarantee that this is the only case 

where enforcement actions will be 

taken.

As noted further in the preamble of 

the September 22, 2003, proposed rule 

regarding the proposed resolution to 30 

CFR 938.16(yyyy), BMSLCA requires 

PADEP to make an investigation within 

30 days following receipt of a claim of 

subsidence damage. Within 60 days of 

an investigation, PADEP must issue a 

written order directing the operator to 

compensate or cause repairs to be made. 

While there is nothing in SMCRA or the 

approved program prohibiting 

negotiations between a landowner and 

an operator, we expect PADEP to follow 

its approved procedures regarding 

investigation of any citizen complaint it 

receives. As a result, a citizen complaint 

investigation could require issuance of 

an enforcement order prior to the 

expiration of the six-month negotiation 

period. PADEP’s removal of the sixmonth period from its regulations at 25 

Pa. Code 89.143a(d)(3) makes the 

program no less effective than the 

Federal regulations for citizen 

complaint investigation and issuance of 

enforcement actions. As a result, we are 

approving their regulation change and 

removing this required amendment. 

30 CFR 938.16(yyyy). Investigation 

and orders for repair of damaged 

structures. 

We received a comment from PCA 

(Administrative Record No. PA 841.84) 

that it opposes the proposed resolution 

for this section to the extent that it 

would result in PADEP issuing 

enforcement orders requiring repair or 

compensation in other than emergency 

situations sooner than 6 months after 

subsidence damage was first discovered 

for the reasons set forth above. 

See our response to PCA’s comments 

to 30 CFR 938.16(xxxx) regarding the 

elimination of the six month period. For 

the same reasons as given in that 

section, we are removing this required 

amendment. 

30 CFR 938.16(zzzz). Issuance of 

orders and payment of escrow when an 

operator fails to repair or compensate a 

landowner for subsidence damage. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(aaaaa). ‘‘Pre-1994’’

agreements relating to subsidence 

damage repair or compensation. 

We received comments from CAWLM 

(Administrative Record Nos. PA 841.95 

and PA 841.97) regarding the proposed 

resolution to this required amendment. 

CAWLM believes that we should 

supersede Section 5.6(c) of BMSLCA 

which provides for a release of duty to 

repair or compensate for subsidence 

damage if agreements for such a release 

were made between 1966 and 1994. 

In our proposed rule, we asked for 

examples of such agreements because 

PADEP believes these agreements do not 

exist for either pre- or post 1966 

structures. We did not receive any 

signed agreements in response to our 

request. While copies of unsigned 

agreements were provided, these do not 

establish that such agreements are in 

existence. As a result, we believe that 

Section 5.6(c) of BMSLCA will not affect 

the protections of the Federal program 

and we are removing the required 

amendment. 

30 CFR 938.16(bbbbb): Reference to 

‘‘pre-1994’’ agreements. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(ccccc). Bonding for 

subsidence damage and water 

replacement. 

We received comments on the 

proposed resolution of this required 

amendment from Penn Future 

(Administrative Record No. PA 841.78), 

Tri-State (Administrative Record No. PA 

841.94), legal counsel to Representative 

William DeWeese of Greene County 

(Administrative Record No. PA 841.89), 

and two private citizens (Administrative 

Record Nos. PA 841.74 and 841.79). The 

commenters noted that use of liability 

insurance in lieu of bond for 

replacement or restoration of water 

supplies is not an appropriate 

mechanism. Penn Future noted that 

citizens may be forced to sue insurance 

companies or mining companies to 

obtain their benefits and asserts that this 

is not as effective as having bonds for 

replacement or restoration. 

Additionally, Penn Future indicated 

that PADEP has historically required 

operators to submit liability insurance 

policies that provide only the minimum 

coverage instead of tailoring the policies 

to the specific potential liabilities of 

water supply restoration or replacement 

of individual mines. 

Tri-State noted that the proposed 

resolution does not satisfy the Federal 

requirement of 30 CFR 817.121(c)(5) 

regarding an increase of bond if damage 

repair or compensation or water supply 

replacement or restoration are not 

completed within certain time frames. 

Tri-State does not believe that PADEP’s 

change to 25 PA Code 86.152(a) 

requiring mandatory bond adjustments 

coupled with its subsidence bond 

requirements and use of liability 

insurance policies for water supply 

replacement are as effective as the 

71544 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

requirements of 30 CFR 817.121(c)(5). 

Tri-State indicated that PADEP’s 

program will not require additional 

bond for damages if the damages are not 

repaired or arrangements made for 

compensation after 90 days. Tri-State 

indicated that Pennsylvania’s program 

should be amended to require 

adjustment of the subsidence bond 

within 90 days where the amount of 

subsidence damage liability remaining 

outstanding exceeds the amount of the 

subsidence bond posted. Tri-State also 

provided comments similar to Penn 

Future with regard to the use of liability 

insurance for replacement or restoration 

of water supplies. In addition, Tri-State 

noted that liability insurance is not as 

effective as bonds for water supply 

replacement or restoration because it 

cannot be adjusted upward after 

damages have occurred as bonds can be. 

The legal counsel to Representative 

William DeWeese (Administrative 

Record No. PA 841.89) indicated that 

Pennsylvania should conduct a 

financial review of operators to insure 

that they have sufficient capital to 

restore water supplies in the event of an 

economic downturn. If there is not 

sufficient capital to withstand a 

downturn, the operator should be 

required to purchase subsidence 

insurance.

We disagree with the commenter’s 

position that Pennsylvania’s subsidence 

bond and applicable adjustment 

requirements are in conflict with the 

bonding requirements at 30 CFR 

817.121(c)(5) with regard to subsidence 

damage to occupied dwellings and 

surface lands. The requirement at 30 

CFR 817.121(c)(5) was put into place to 

guarantee the repair of damage to 

occupied dwellings and surface lands in 

the event of a forfeiture by an operator. 

Under the provision, operators that do 

not complete damage repairs within 90 

days must provide additional 

performance bond in the amount of the 

estimated cost of the dwelling and land 

repairs if the permittee will be repairing, 

or in the amount of the decrease in 

value if the permittee will be 

compensating the owner for the damage 

to an occupied dwelling. The bond must 

be in place until the repair, 

compensation, or replacement is 

completed. 

The Pennsylvania program requires a 

subsidence bond prior to the issuance of 

the permit. The bond covers the damage 

to occupied dwellings, agricultural 

structures, businesses, and surface 

lands. To implement this requirement, 

PADEP requires a subsidence amount 

based upon an actual assessment of the 

value of the land and structures 

overlying the area to be undermined. At 

the time that the permit is issued, the 

subsidence bond, which must be 

requested after the damage under the 

Federal provision, is already in place 

under the Pennsylvania program. In 

terms of having an initial bond amount 

to cover subsidence damage to occupied 

dwellings and land, this approach is 

more effective than the minimum 

Federal standard. 

The commenter appears to be 

primarily at issue with the degree to 

which the initial bond amount plus the 

periodic adjustments under the 

Pennsylvania program are consistent 

with the Federal requirements at 

817.121(c)(5) which require a 

modification to the bond amount at 90 

days following damage if repairs are not 

complete. To illustrate the concern, the 

commenter provided a hypothetical 

example where, under certain 

conditions, the amount of the 

unrepaired damages could exceed the 

Pennsylvania subsidence bond. The 

commenter stated that this situation 

would be in conflict with the 90 day 

adjustment requirement at 30 CFR 

817.121(c)(5). 

We do not agree that the commenter 

has applied the requirement at 30 CFR 

817.121(c)(5) appropriately to the 

bonding process as proposed by 

Pennsylvania. The 90 day adjustment 

requirement at 30 CFR 817.121(c)(5) 

only applies to operations that do not 

have a bond that is already designed to 

cover the anticipated damage. 

Pennsylvania has chosen to require a 

bond prior to permit issuance that will 

cover the anticipated damages from 

subsidence to structures and land. 

Because there is a bond in place, the 90-

day adjustment requirement of 30 CFR 

817.121(c)(5) no longer applies and 

Pennsylvania must now conduct the 

appropriate reviews and adjustments 

required by 30 CFR 800.15(a). At 30 CFR 

800.15(a), Pennsylvania is under the 

obligation to adjust the permittee’s bond 

from time to time as the cost of future 

reclamation changes. In addition, 30 

CFR 800.15(a) allows Pennsylvania to 

fulfill the requirement by setting a 

schedule. This is consistent with the 

proposal by Pennsylvania to adjust 

bonds as needed at the time of permit 

renewal or a change to the subsidence 

control plan. Under 25 Pa. Code 

86.152(a), Pennsylvania also has the 

discretionary authority to conduct the 

reviews and require an adjustment 

sooner, if necessary. We find no reason 

to disapprove Pennsylvania’s proposal 

with regard to the bonding of 

subsidence impacts to structures and 

land. 

We also disagree with the 

commenter’s position that use of 

liability insurance policies to cover 

water supply restoration or replacement 

is not appropriate. Both the Federal 

regulations and Pennsylvania’s 

regulations allow the use of insurance 

policies in lieu of the increased bond 

provisions of 30 CFR 817.121(c)(5). The 

Federal regulations at 30 CFR 800.14(c) 

provide that ‘‘An operator’s financial 

responsibility under Sec. 817.121(c) of 

this chapter for repairing material 

damage resulting from subsidence may 

be satisfied by the liability insurance 

policy required under Sec. 800.60.’’

Pennsylvania’s regulations at 25 Pa. 

Code 86.168(c) provides that liability 

insurance shall include a rider covering 

loss or diminution in quantity or quality 

of public or private sources of water. 

Subsection (g) provides that a bond or 

an individual insurance policy as 

required under Subsection (c) may be 

provided in lieu of liability insurance to 

cover replacement or restoration of 

water supplies. 

The commenter also expressed 

concerns regarding the proper amount 

of insurance an operator must carry. 

Pennsylvania’s minimum coverage for 

property damage is $500,000 per person 

and $1 million aggregate. This amount 

exceeds the minimum coverage required 

by Federal regulations at 30 CFR 800.60 

which require only $300,000 for each 

occurrence and $500,000 aggregate. 

Pennsylvania’s regulations allowing 

liability insurance to substitute for 

water supply replacement and the 

minimum amount of insurance the 

regulations require an operator to have 

are no less effective than the Federal 

regulations. The commenters’ concerns 

regarding the mechanics of claim 

collection and whether specific amounts 

of insurance are sufficient for individual 

cases are issues that will be addressed 

in our oversight of Pennsylvania’s 

implementation of its approved 

program. 

Finally, there is no provision in the 

Federal regulations for requiring 

operators to purchase subsidence 

insurance, nor are there any provisions 

requiring a review of an operator’s 

financial solvency if the operator uses a 

collateral or surety bond. The Federal 

regulations rely on bonding or liability 

insurance to secure repair or 

replacement in the event operators are 

unable to fulfill their obligations. We 

have determined that the existing 

provisions of Pennsylvania’s statute and 

regulations and the changes proposed in 

this amendment provide to be no less 

effective than the bonding provisions of 

the Federal regulations. 

30 CFR 938.16(ddddd). Definition of 

de minimis cost increase.

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71545

We received comments on the 

proposed resolution of this required 

amendment from a citizen 

(Administrative Record No. PA 841.74), 

Tri-State (Administrative Record No. 

841.94), and CAWLM (Administrative 

Record No. PA 841.97). The commenters 

were opposed to Pennsylvania’s 

definition of de minimis cost increases 

at 25 Pa. Code 89.5 and the regulations 

implementing it at 25 Pa. Code 89.145a. 

The commenters believe that costs for 

operation and maintenance of 

replacement water supplies beyond 

those for the premining water supplies 

should be paid by the operator. Tri-State 

further indicated the proposed 

resolution should be adopted for nonEPAct structures as well as for EPAct 

structures. CAWLM indicated that 

agreements between operators and 

landowners for a one-time payment of 

increased costs favors operators and can 

result in agreements that will not cover 

the additional operating and 

maintenance costs of a replacement 

supply. 

We are approving Pennsylvania’s 

proposed changes to 25 Pa. Code 

89.145a(f)(5) because they are no less 

effective than the Federal regulations 

regarding payment of operating and 

maintenance costs of EPAct replacement 

water supplies. For EPAct protected 

water supplies, operators will be 

required to pay operating and 

maintenance costs that are in excess of 

the costs to operate and maintain the 

water supply that existed prior to 

mining. While Tri-State would like the 

Federal protections to apply to nonEPAct protected supplies, there is no 

Federal requirement that Pennsylvania 

must adopt the same protection 

standards for water supplies not covered 

by EPAct. The Federal definition of 

‘‘Replacement of water supply’’ at 30 

CFR 701.5 specifically recognizes that 

payment of the increased costs can be 

satisfied by a one-time payment in an 

amount that covers the present worth of 

the increased costs. This lump sum 

payment may be preferable to the water 

supply owner because it eliminates the 

possibility that the operator may not pay 

the annual increased costs due to 

bankruptcy or financial difficulties. We 

have determined that Pennsylvania’s 

proposed change to its regulations 

requiring payment of cost increases for 

operating and maintaining replacement 

water supplies are no less effective than 

the Federal requirements and we are 

approving them. Because of these 

proposed regulation changes, we are 

removing this required amendment. 

30 CFR 938.16(eeeee). Definition of 

fair market value. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(fffff). Definition of 

permanently affixed appurtenant 

structures. 

We received comments from Tri-State 

(Administrative Record No. PA 841.94) 

and PCA (Administrative Record No. PA 

841.84). Tri-State commented that it 

supported PADEP’s deletion of 

‘‘permanently affixed appurtenant 

structures’’ from 25 Pa. Code Section 

89.5 in favor of a broader definition of 

structures related to occupied 

residential dwellings. Tri-State cautions 

against too narrow a definition of 

‘‘occupied’’ in this context, however. 

Tri-State commented that it did not 

want Pennsylvania’s regulations to give 

broader protection to EPAct covered 

structures and the structures related 

thereto than to non-EPAct protected.

PCA commented that landowners 

should be required to take steps to 

protect property not permanently 

affixed to the ground. PCA believes that 

structures that are easily removed are 

not fixtures and therefore not real 

property requiring protection from 

subsidence damage. 

As we noted in an earlier response, 

there is nothing in the Federal 

regulations preventing a State from 

adopting different standards for nonFederally protected structures and water 

supplies than for Federally protected 

structures and water supplies. 

Therefore, in response to Tri-State’s 

comment, Pennsylvania is allowed to 

provide protections to any structures or 

water supplies as long as it meets the 

minimum Federal standards. If Tri-State 

wants Pennsylvania to provide 

additional protections, it must work 

with PADEP through Pennsylvania’s 

regulatory review process. 

With regard to PCA’s comment, the 

responsibility to move or dismantle 

these structures lies with the operator 

and not the landowner. The Federal 

regulations at 30 CFR 817.121(a) 

requires the permittee to take steps to 

prevent or minimize material damage, 

not the landowner. In many cases, 

structures not permanently affixed to 

the ground surface cannot be easily 

moved or dismantled by the landowner. 

The landowner would have to incur 

costs to move or dismantle these 

structures. One of the purposes of 

SMCRA was to ‘‘assure that the rights of 

surface landowners and other persons 

with a legal interest in the land or 

appurtenances thereto are fully 

protected.’’ 30 U.S.C. 1202(b) (emphasis 

added). Additionally, the definition of 

occupied residential dwelling and 

structures related thereto protects ‘‘any 

building, structure or facility 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.’’ This regulation 

describes examples of such structures to 

include garages, storage sheds, and 

greenhouses. Structures such as these 

may not be permanently affixed to the 

ground surface, yet it may be difficult to 

dismantle or move them. Both the 

Federal regulations, and now 

Pennsylvania’s regulations, provide that 

operators must repair or compensate 

landowners for damages to these 

structures. 

30 CFR 938.16(ggggg). Subsidence 

control plan—prevention of material 

damage to EPAct structures. 

We received a comment from TriState (Administrative Record No. PA 

841.94), indicating that regardless of 

whether a surface structure is located 

over a conventional room and pillar 

mine or over a longwall mine, the mine 

operator’s subsidence control plan 

should not be approved unless the 

prevention of material damage is 

demonstrated. 

The Federal regulations at 30 CFR 

784.20(b)(7) provide the requirements 

for subsidence control plans. These 

regulations provide that for areas where 

planned subsidence is projected to be 

used (such as in a longwall mine), the 

subsidence control plan is to contain a 

description of methods to be employed 

to minimize damage from planned 

subsidence to non-commercial buildings 

and occupied residential dwellings and 

structures related thereto; or the written 

consent of the owner of the structure or 

facility that minimization measures not 

be taken; or, unless the anticipated 

damage would constitute a threat to 

health or safety, a demonstration that 

the costs of minimizing damage exceed 

the anticipated costs of repair. 

Pennsylvania’s proposed regulation 

change at 25 Pa. Code 89.141(d) 

provides a similar requirement. The 

Federal regulations do not provide for 

disapproving a subsidence control plan 

for an area of planned subsidence 

because it does not provide for 

prevention of material damage, and 

therefore, we cannot require 

Pennsylvania to include such a 

provision in its program. We have 

determined that Pennsylvania’s 

proposed revisions to its regulations are 

no less effective than the Federal 

regulations regarding the requirements 

for subsidence control plans. 

30 CFR 938.16(hhhhh). Subsidence 

control plan—minimizing material 

damage to EPAct structures. 

71546 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

See response to comments in 

938.16(jjjjj) below. 

30 CFR 938.16(iiiii). Measures to 

minimize material damage. 

See response to comments in 

938.16(jjjjj) below.

30 CFR 938.16(jjjjj). Prevention of 

material damage. 

We received comments from Tri-State 

(Administrative Record No. PA 841.94), 

and the Sierra Club (Administrative 

Record No. PA 841.75). Tri-State 

indicated that the modifications 

contained in the PADEP’s proposed 

regulations are inadequate in that these 

regulations do not require mine 

operators to prevent material damage to 

all structures. Tri-State recommended 

that PADEP modify its draft regulations 

to make prevention of such material 

damage mandatory for both room and 

pillar and longwall mines. Tri-State also 

noted that regulations pertaining to 

longwall mining only require that a 

mine operator recognize material 

damage to surface structures and then 

only to the extent technologically and 

economically feasible. Tri-State believes 

that longwall mine operators must be 

required by regulations to develop 

technology to make the prevention of 

material damage feasible. Tri-State 

concluded by indicating that, until 

damage prevention is required, 

Pennsylvania’s regulatory program will 

not be as effective as the Federal 

minimum requirements. 

The Sierra Club noted that both State 

and Federal regulations now require the 

prevention of material damage to public 

buildings, such as schools, churches, 

hospitals, and large lakes. The rules do 

not distinguish between the types of 

mining. PADEP’s proposed rule would 

change ‘‘prevent’’ to ‘‘minimize’’ in 

addressing material damage to these 

buildings if longwall mining is 

proposed. The Sierra Club objects to the 

change because it would allow longwall 

mining to cause material damage while 

other types of mining would have to 

prevent such damage. 

We believe the commenters have 

misunderstood the Federal 

requirements. The Federal regulations at 

30 CFR 817.121(a)(2) require that if a 

permittee employs mining technology 

that provides for planned subsidence in 

a predictable and controlled manner 

(such as longwall mining), the permittee 

must take necessary and prudent 

measures, consistent with the mining 

method employed, to minimize material 

damage to the extent technologically 

and economically feasible to noncommercial buildings and occupied 

residential dwellings and structures 

related thereto. There is no Federal 

requirement that requires a permittee to 

take measures to prevent material 

damage when employing mining 

techniques that provide for planned 

subsidence. 

If permittees employ mining 

techniques that do not result in planned 

subsidence (such as in conventional 

room and pillar mines), then the 

permittee must adopt measures 

consistent with known technology that 

prevent subsidence from causing 

material damage to the extent 

technologically and economically 

feasible, maximize mine stability, and 

maintain the value and reasonably 

foreseeable use of surface lands. 

In response to the Sierra Club 

comments, the Federal regulations at 30 

CFR 817.121(d) provide that 

underground mining activities shall not 

be conducted beneath or adjacent to (1) 

public buildings and facilities; (2) 

churches, schools, and hospitals; or (3) 

impoundments with a storage capacity 

of 20 acre-feet or more or bodies of 

water with a 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 

features or facilities. Pennsylvania’s 

regulation at 25 Pa. Code 89.142a(c) 

provides the same protections to these 

structures as do the Federal regulations. 

Moreover, PADEP’s proposed regulation 

at 25 Pa. Code 89.141(d)(3) recognizes 

the specific protections afforded to 

structures under 25 Pa. Code 89.142a(c) 

and does not, in any way, waive those 

protections. 

PADEP’s proposed change to its 

regulations at 25 Pa. Code 89.142a(d) 

provides the same protections for EPAct 

structures that the Federal regulations 

require. As a result, we have determined 

that this section is no less effective than 

the Federal counterpart. 

30 CFR 938.16(kkkkk). Prompt repair 

or compensation for structure damage. 

We received comments from one 

citizen (Administrative Record No. PA 

841.73) and from Tri-State 

(Administrative Record No. PA 841.94). 

The citizen commented that 

homeowners should be treated fairly 

with prompt financial compensation. 

Tri-State indicated it did not want us to 

accept as adequate PADEP’s proposed 

change to 25 Pa. Code 89.142a(f)(l)(ii) 

and, instead, require an amendment to 

Section 5.4(a)(3) of BMSLCA. Tri-State 

does not believe amending the 

regulation without amending the 

corresponding statutory provision is 

adequate.

Our review has determined that 

Section 5.4(a)(3) of BMSLCA and the 

regulation at 25 Pa. Code 

89.142a(f)(1)(ii) are not in conflict with 

regard to the requirement that repairs or 

compensation for structural damage be 

made promptly. While BMSLCA is 

silent on the promptness of repairs or 

compensation, there is nothing in this 

portion of the statute preventing prompt 

repairs or compensation. PADEP is 

proposing to include the prompt 

standard in its regulations interpreting 

this portion of BMSLCA. This 

interpretation will make the 

Pennsylvania program as effective as the 

Federal regulations regarding 

promptness of repairs or compensation. 

30 CFR 938.16(lllll). Repair of 

dwellings and permanently affixed 

appurtenant structures or 

improvements. 

PCA provided comments to the 

proposed resolution of this required 

amendment (Administrative Record No. 

PA 841.84). PCA opposes the proposed 

resolution of 30 CFR 938.16 (uuuu) and 

30 CFR 938.16(lllll) and the proposed 

amendment to 25 Pa. Code 89.142a(f)(l) 

which would obligate mine operators to 

repair or compensate for mine 

subsidence damage to dwellings 

constructed after the owner knew or 

should have known that mining would 

be occurring beneath his property 

within the next 5 years. PCA believes 

that these provisions are designed to 

discourage property owners, who have 

knowledge that mining is imminent, 

from building new structures in 

locations where they could be damaged 

and to encourage such persons to build 

in areas which will not be undermined. 

PCA also noted that there is nothing 

unreasonable, nor is there anything in 

SMCRA or OSM’s regulations, which 

would preclude local municipalities 

from enacting a zoning ordinance to 

prohibit new construction in areas that 

are unstable or prone to subsidence or 

slips. PCA maintains that such a local 

zoning ordinance would be reasonable 

and justified because it would ensure 

that the local tax base is not reduced by 

avoidable damage to new structures. 

Section 720(a)(1) of SMCRA requires 

the prompt repair or compensation for 

material damage resulting from 

subsidence to certain structures. There 

is no requirement that the structure be 

in place at the time of permit 

application or renewal even though the 

water replacement provisions of Section 

720(a)(2) are limited to only those 

drinking, domestic or residential water 

supply from wells or springs in 

existence prior to the application for a 

surface coal mining and reclamation 

permit. Congress saw fit to limit the 

provision of water supply replacement 

to supplies in existence at the time of 

permit application, but did not provide 

a similar restriction to structures. The 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71547

issue of what recently constructed noncommercial buildings or occupied 

dwellings or related structures are 

protected under EPAct arose when a 

commenter to the Federal EPAct 

regulations stated that a permittee is not 

obligated to repair subsidence-related 

damage to a building constructed after 

mining occurred. 60 FR at 16735. OSM 

agreed, stating ‘‘the requirement should 

not apply to structures which did not 

exist at the time of mining.’’ Id. This 

makes it clear that if the building or 

dwelling/structure existed at the time of 

mining, the operator is obligated to 

repair or compensate. To uphold PCA’s 

position would effectively put a limit on 

a landowner’s property rights for as 

much as five years and eliminate repair 

or compensation requirements to a class 

of structures depending on when they 

were built. SMCRA did not envision 

such a limitation. 

PCA is correct in its assertion that 

there is no provision in SMCRA 

preventing local municipalities from 

enacting an ordinance preventing 

constructing of dwellings under certain 

circumstances. However, SMCRA would 

apply to protected structures even if 

constructed in violation of such an 

ordinance. As a result, we are approving 

PADEP’s proposed changes to its 

regulations and we are removing this 

required amendment. 

30 CFR 938.16(mmmmm). Protection 

of utilities from underground mining 

activities. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. However, we 

did receive comments from the legal 

counsel for Representative William 

DeWeese of Greene County 

(Administrative Record No. PA 841.89) 

regarding a case where residents of 

Greene County lost access to free natural 

gas because of a dispute with a gas 

company and the inability of the 

homeowners to hook up to the 

company’s distribution line. She 

indicated that she would like there to be 

language in PADEP’s regulations that 

require PADEP to bring parties together 

in cases where personal gas supplies are 

affected to decide how the parties are 

going to share the costs to replace the 

supplies. 

PADEP’s changes to 25 Pa. Code 

89.142a(f)(1)(iii) provide that operators 

must repair, restore, replace or 

compensate owners for material 

damages to customer-owned utilities.

We have determined that this 

proposed regulation is no less effective 

than the Federal regulations requiring 

repair or compensation for damages to 

occupied dwellings and structures 

related thereto. PADEP has the 

regulations in place for insuring that 

damages to utilities are repaired or 

landowners receive compensation for 

those damages. If there are questions 

regarding the compensation aspects of 

the case pointed out by Representative 

DeWeese’s legal counsel, the parties 

involved should file a citizen’s 

complaint with PADEP. 

30 CFR 938.16(nnnnn). Statute of 

limitations on damage repair or 

compensation—claims must be filed 

with PADEP within two years of 

damage. 

We received comments from PCA 

(Administrative Record No. PA 841.84). 

PCA indicated that SMCRA is 

completely silent on the issue of 

whether claims for subsidence damage 

to dwellings and claims for the 

replacement of domestic water supplies 

must be filed within any defined time 

frame. Of equal importance, OSM has 

never promulgated any regulation 

which interprets SMCRA as allowing for 

the filing of such claims at any time. 

PCA further indicated that in the 

absence of any express prohibition in 

SMCRA on placing limits on the time 

within which subsidence damage claims 

must be filed, there is no basis for OSM 

to conclude that Pennsylvania’s 

decision to do so is not authorized by 

30 U.S.C. 1201(f). Indeed, in the absence 

of any express limitation-of-action 

period on a Federal statutory claim the 

Courts will traditionally provide for 

one. PCA indicated that when a statute 

creating a right-of-action does not 

specify a limitation-of-action period, it 

cannot be assumed that Congress 

intended that there be no time limit on 

the action. 

PCA further indicated that the 

justification for Pennsylvania creating 

these new statutory claims for 

homeowners was a desire to preserve its 

local ad valorem tax base. This goal is 

not fostered if homeowners can wait 5 

or 10 or 25 years to file their claims. On 

the other hand, it is fostered if claimants 

are encouraged to file their claims 

promptly, and a reasonable statute of 

limitations certainly encourages the 

timely filing of subsidence damage 

claims. 

We disagree with PCA’s 

characterization of SMCRA and the 

Federal regulations with regard to a 

statute of limitations. Pennsylvania 

advanced similar arguments regarding 

statutes of limitations that we addressed 

in the December 27, 2001, final rule (66 

FR at 67014, 67023–24). Our response to 

those comments is incorporated by 

reference into this rule. PCA has not 

provided any compelling reason for us 

to reassess the position stated in that 

final rule. For more information on this 

issue see our response to comments 

under 30 CFR 938.16(xxxx). 

30 CFR 938.16(ooooo). Investigation 

and orders for repair of damaged 

structures. 

For a discussion of the comments 

received with regard to this issue, see

our response to comments under 30 CFR 

938.16(yyyy).

30 CFR 938.16(ppppp). Relief of 

liability for structure damage repair or 

compensation when operator is denied 

access to conduct a premining or 

postmining survey. 

We received comments from PCA 

(Administrative Record No. PA 841.84). 

PCA opposes the proposed resolution of 

30 CFR 928.16 (vvvv) and 30 CFR 

938.16 (ppppp) and the proposed 

amendment to 25 Pa. Code 89.144(a)(1). 

PCA indicated that BMSLCA and 25 Pa. 

Code 89.144(a)(l) do not deny any 

owner of a dwelling or institutional 

structure the right to file a subsidence 

damage claim. Instead, these provisions 

of the Pennsylvania program merely 

condition this right by providing that, in 

return for being given a right to file a 

statutory subsidence damage claim, the 

structure owner must grant the mine 

operator an opportunity to conduct a 

premining and a post-mining 

inspection. 

PCA further noted that with respect to 

the pre-mining inspection condition, 

few dwellings or institutional structures 

do not have some normal damage 

caused by weathering and wear and 

tear. The nature of this damage is often 

indistinguishable from certain types of 

damage that can be caused by mine 

subsidence. To assure that operators are 

not required to pay compensation equal 

to the cost of repair (the Pennsylvania 

compensation standard which is 

different from OSM’s) for ‘‘damages’’

they did not cause, the Pennsylvania 

General Assembly and the 

Environmental Quality Board (EQB) 

concluded structure owners should not 

be allowed to file subsidence damage 

claims unless they allow the mine 

operator access to their structures to 

establish a pre-mining baseline of its 

condition. 

We recognize the importance of premining surveys and encourage all 

landowners to obtain them. However, as 

we noted in the preamble to the 

December 27, 2001, final rule, the 

absolute removal of the right to repair or 

compensation if the operator is denied 

access to the property is not in 

accordance with the requirements of 

SMCRA. In the preamble, we said:

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 

71548 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

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.

* * * * *

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. 66 FR at 67022. 

Pennsylvania’s proposed revision of 

25 Pa. Code 89.144a will eliminate the 

concern we expressed in the December 

27, 2001, final rule. The changes to this 

section, as applied to EPAct structures, 

require that if, by a preponderance of 

evidence, a landowner can show 

damage to be caused by underground 

mining, the right to repair or 

compensation will be retained. This 

protects both the landowner and 

operator by both encouraging presubsidence surveys and insuring only 

that damages caused by underground 

mining are subject the repair or 

compensation provisions. 

PCA also stated that property owners 

have a legal obligation to mitigate their 

own potential damage. The Federal 

regulation at 30 CFR 817.121(a)(2) 

allows a structure owner to waive 

minimization measures. However, this 

waiver does not eliminate ‘‘any 

requirement pursuant to paragraph 

817.121(c) to repair damage from 

subsidence.’’ (60 FR at 16734).

We also received a comment from 

legal counsel to Representative William 

DeWeese of Greene County 

(Administrative Record No. PA 841.89) 

indicating that in the case where a 

landowner refuses an operator right of 

entry to conduct a premining survey, 

BMSLCA requires affirmative proof that 

an operator caused the damage, while 

under the regulations, the standard for 

proof is a preponderance of evidence. 

She believes that there are two 

standards. 

We note that the reference to 

affirmative proof in BMSLCA was for 

water supplies while the preponderance 

of evidence reference in the regulations 

was for structures. Even so, we do not 

agree that these are two standards. Both 

are evidentiary terms and are consistent 

with each other. ‘‘Affirmatively 

proving’’ is a general reference to what 

a party must do to prove facts that are 

in dispute. In civil cases, the degree of 

proof is by a preponderance of evidence. 

As we noted above, the use of 

preponderance of the evidence is no less 

effective than the Federal regulations in 

requiring repair or compensation for 

damages to structures. As a result, we 

are approving the proposed changes to 

Pennsylvania’s program. 

30 CFR 938.16(qqqqq). Water supply 

surveys—various issues. 

We received comments from Tri-State 

(Administrative Record No. PA 841.94), 

the Sierra Club (Administrative Record 

No. PA 841.75), and CAWLM 

(Administrative Record No. PA 841.97). 

Tri-State indicated that citizens have a 

right to have a deadline for premining 

sampling of water supplies before being 

impacted by mining. Tri-State does not 

agree with the proposed resolution that 

pre-mining sampling occur ‘‘before the 

supply is susceptible to impacts from 

mining’’ as found at 25 Pa. Code 

89.145a(a)(l). Tri-State is concerned 

with whether water supply owners will 

be provided the results of the premining 

survey in time to have their own survey 

done, if they disagree with the mine 

operator’s results. To remedy this 

concern, Tri-State recommends that 

PADEP’s rule be rewritten to require 

that premining surveys be completed 

prior to the time a water supply is 

susceptible to mining-related effects and 

prior to mining within 2500 feet of the 

water supply. 

The Sierra Club and CAWLM also 

suggested that premining sampling be 

conducted prior to mining within 2500 

feet of a water supply. 

We acknowledge the commenters 

desire to have water supplies sampled 

sufficiently in advance of mining to give 

landowners and water supply users 

sufficient time to prepare for adverse 

effects to the supply. However, we do 

not believe substituting one arbitrary 

standard for another meets the 

requirements of OSM’s March 9, 1999, 

letters to Tri-State Citizens Mining 

Network and the Interstate Mining 

Compact Commission that provide for 

delays in water supply samples as long 

as the permit application contains 

sufficient information to develop the 

Probable Hydrologic Consequences and 

Cumulative Hydrologic Impact 

Assessment. The commenters give no 

evidence of why sampling prior to 

mining advancing within 2500 ft. of a 

water supply will give any more reliable 

information than PADEP’s prior 

standard of 1000 ft. Water supplies can 

be impacted by underground mining far 

in advance of the 2500 ft. standard the 

commenters are proposing. We believe 

that PADEP’s proposed language change 

at 25 Pa. Code 89.145a(a)(1) requiring 

sampling prior to the time a water 

supply is susceptible to mining-related 

effects will provide that all water 

supplies are adequately sampled in a 

timely manner regardless of their 

location relative to the mining 

operation. 

30 CFR 938.16(rrrrr). Water supply 

replacement—promptness of action and 

reasonably foreseeable uses. 

We received comments from Tri-State 

(Administrative Record No. PA 841.94), 

the Sierra Club (Administrative Record 

No. PA 841.75), CAWLM 

(Administrative Record No. PA 841.97), 

and a citizen (Administrative Record 

No. PA 841.74). Tri-State recommended 

that the reasonably foreseeable use 

determination of 25 Pa. Code 89.145a(b) 

be made by PADEP and not the 

operators. They also recommended that 

the foreseeable use determination 

provision be replaced with a 

requirement that replacement water 

supplies be equivalent to the supply 

that existed prior to mining. The Sierra 

Club and CAWLM echoed the citizen’s 

comment. CAWLM also suggested that, 

if we accept PADEP’s rule regarding 

reasonably foreseeable use, only a 

homeowner (and not PADEP or an 

operator) is qualified to determine what 

a reasonably foreseeable use would 

entail. 

In our December 27, 2001, final rule, 

we determined that PADEP’s concept 

that a replacement water supply that 

takes into account the reasonably 

foreseeable uses of that supply is no less 

effective than the Federal standard 

requiring an equivalent replacement. 

For a full discussion of our decision 

with regard to the concept of reasonably 

foreseeable use, see our final rule in the 

December 27, 2001, Federal Register (66 

FR at 67011–12). Because reasonably 

foreseeable uses as a standard for water 

supply replacement was addressed and 

approved in the December 27, 2001, 

rulemaking, comments recommending 

its disapproval are not applicable to this 

rulemaking. In PADEP’s current 

amendment, the only water supply 

replacement issue is the requirement 

that PADEP take into account both the 

premining uses of the water supply and 

any reasonably foreseeable uses of the 

supply. We disagree with CAWLM’s 

comment that only a homeowner (and 

not PADEP or an operator) is qualified 

to determine reasonably foreseeable 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71549

uses. While homeowners are a source of 

information to consider when 

determining the reasonably foreseeable 

uses of a supply, there may be important 

domestic and residential uses that the 

current homeowner might not identify 

in determining minimum thresholds for 

supply replacement. 

30 CFR 938.16(sssss). Water supply 

replacement—prompt provision of 

temporary water. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(ttttt). Quality and 

quantity of temporary water supplies.

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(uuuuu). De minimis

cost increase. 

See comments and our responses to 

30 CFR 938.16(ddddd) earlier in this 

rulemaking. 

30 CFR 938.16(vvvvv). Reasonably 

foreseeable use—adequate quantity. 

We received comments from the 

Sierra Club (Administrative Record No. 

PA 841.75), Tri-State (Administrative 

Record No. PA 841.94), and CAWLM 

(Administrative Record Nos. PA 841.92 

and 841.97). 

Tri-State recommended changing 

PADEP’s requirement that a 

replacement water supply meet current 

and reasonably foreseeable uses be 

changed to require replacement water 

supplies to be made equivalent to 

premining water supplies. These 

comments were echoed by the Sierra 

Club and CAWLM. For an explanation 

of our approval of PADEP’s standards 

for replacement of water supplies, 

please see our response to comments in 

30 CFR 938.16(rrrrr) shown earlier in 

this rulemaking. 

30 CFR 938.16(wwwww). Water 

supply problems—investigation time 

frames. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

30 CFR 938.16(xxxxx). Relief of 

liability for water supply replacement 

when the adverse effect occurs more 

than three years after the mining 

activity. 

See our response to comments under 

30 CFR 938.16(mmmm) shown earlier in 

this rulemaking. 

30 CFR 938.16(yyyyy). Two-year 

reporting limit on water supply effects. 

See our response to comments under 

30 CFR 938.16(jjjj) shown earlier in this 

rulemaking. 

30 CFR 938.16(zzzzz). Compensation 

in lieu of water supply replacement. 

We received comments from Tri-State 

(Administrative Record No. PA 841.94). 

Tri-State recommends preservation of 

water resources by requiring operators 

to identify all actual and potential water 

supplies within the permit area. TriState further recommended that PADEP 

should require operators to demonstrate 

that a suitable replacement water source 

is available if identified supplies are 

impacted. Tri-State also indicated that 

compensation in lieu of water supply 

replacement should not be allowed.

We believe Tri-State’s concerns with 

identifying the actual and potential 

water supplies in a permit are answered 

by the Pennsylvania program at 25 Pa. 

Code 89.34(a) which requires operators 

to submit the results of a groundwater 

inventory of existing wells, springs and 

other groundwater resources for the 

proposed permit and adjacent areas and 

by 25 Pa. Code 89.36(c) which provides 

that 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. We approved these provisions 

in our December 27, 2001, final rule (66 

FR at 67031 and 67032). In providing for 

protection of water resources, the 

Federal regulations allow operators to 

affect drinking, domestic or residential 

water supplies as long as temporary and 

permanent water supply replacements 

are promptly provided. Regarding TriState’s comment on compensation in 

lieu of water supply replacement, please 

see our response to 30 CFR 

938.16(nnnn), (oooo), (qqqq), (rrrr) 

shown earlier in this rulemaking. 

30 CFR 938.16(aaaaaa).

Compensation in lieu of water supply 

replacement—relief of liability under 

voluntary agreements. 

PCA commented (Administrative 

Record No. PA 841.84) that it opposed 

the proposed resolution of this required 

amendment to the extent that it is based 

on superseding of Section 5.2(h) of 

BMSLCA. We addressed PCA’s concerns 

regarding superseding of Section 5.2(h) 

of BMSLCA in a final rule published 

elsewhere in today’s Federal Register

(see our final rule regarding PA–141–

FOR). 

30 CFR 938.16(bbbbbb).

‘‘Underground mining operations’’ and 

notification of mining. 

We received no comments in 

opposition to the proposed resolution of 

this required amendment. 

Comments on PADEP’s ancillary 

changes 

As we noted above, PADEP proposed 

some changes to its regulations at 25 Pa. 

Code Chapters 86 and 89 that we did 

not specifically require in our December 

27, 2001, final rule. We received the 

following comments regarding these 

changes: 

Comments on the definitions of EPAct 

structures and EPAct water supplies: 

The legal counsel for Representative 

William DeWeese of Greene County 

(Administrative Record No. PA 841.89) 

indicated dissatisfaction with the 

distinction between EPAct and nonEPAct structures. She indicated that all 

structures should be treated equally and 

that EPAct structures should retain the 

same protections as non-EPAct 

structures. We understand these 

concerns. However, the Federal 

standard for review of State program 

amendments is whether they are no less 

effective than the Federal counterparts. 

In this case, PADEP’s use of the 

definition of EPAct structures will 

insure protections that are no less 

effective than the Federal protections for 

these structures. Accordingly, the 

Federal regulations require that we 

approve this definition. 

Federal Agency Comments 

Under 30 CFR 732.17(h)(11)(i) and 

Section 503(b) of SMCRA, we requested 

comments on the amendment from 

various Federal agencies with an actual 

or potential interest in the Pennsylvania 

program (Administrative Record No. PA 

841.66). On September 26, 2003 

(Administrative Record No. PA 841.69), 

MSHA’s Wilkes Barre, Pennsylvania, 

office wrote us indicating that it did not 

have any comments or concerns with 

the amendment. On October 21, 2003 

(Administrative Record No. PA 841.86), 

MSHA’s Arlington, Virginia, office 

wrote to us noting that there appears to 

be no conflict with the Mine Safety and 

Health Administration’s regulation. 

Environmental Protection Agency (EPA) 

Comments 

Under 30 CFR 732.17(h)(11)(i), we 

requested comments on the amendment 

from EPA (Administrative Record No. 

PA 841.66). EPA responded on October 

14, 2003, (Administrative Record No. 

PA 841.81) indicating that it has 

determined that there are no apparent 

inconsistencies with the Clean Water 

Act or other statutes and regulations 

under its jurisdiction. However, EPA 

further indicated that it is concerned 

about subsidence impacts on streams 

due to high extraction underground 

mining methods. EPA observed that 

some headwater streams have lost water 

due to subsidence cracks in stream beds 

causing the streams to dry up at times 

and changes to flow patterns. EPA 

encourages utilization of mining 

techniques that can minimize these 

effects or, in the alternative, mitigation 

71550 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

measures that restore streams to 

premining conditions. 

While EPA’s comments regarding 

streams are beyond the scope of the 

current rulemaking, we appreciate its 

interest in the mining program. We will 

forward these concerns to PADEP. 

V. OSM’s Decision 

Based on the above findings, we 

approve the amendment Pennsylvania 

sent to us on August 27, 2003, and as 

revised on September 3, 2003. We are 

approving the rules proposed by 

Pennsylvania with the provision that 

they be fully promulgated in 

substantively identical form to the rules 

submitted to, and reviewed by, OSM 

and the public. We are also removing 

the required amendments at 30 CFR 

938.16(hhhh) through and including 

(bbbbbb). With regard to those required 

amendments which required removal of, 

or modification to, sections of BMSLCA, 

we are now approving those sections 

that were formerly disapproved to the 

extent noted in this final rule and the 

final rule also published in today’s 

Federal Register regarding supersession 

of certain parts of BMSLCA.

To implement this decision, we are 

amending the Federal regulations at 30 

CFR Part 938.12, 938.15 and 938.16 

which codify decisions concerning the 

Pennsylvania program. 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 demonstrate that the State has 

the capability of carrying out the 

provisions of the Act and meeting it 

purposes. Making this regulation 

effective immediately will expedite that 

process. SMCRA requires consistency of 

State and Federal standards. 

VI. Procedural Determinations 

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 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

under Executive Order 12866. 

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 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 

because each 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 

the Federal regulations at 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 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federallyrecognized Indian tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

Pennsylvania does not regulate any 

Native Tribal lands. 

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 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 

National Environmental Policy Act (42 

U.S.C. 4332(2)(C)). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3507 et seq.).

Regulatory Flexibility Act 

The Department of the Interior 

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 data and assumptions for the 

counterpart Federal regulations. 

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 Pennsylvania 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 

Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 71551

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 Pennsylvania 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 unfounded 

mandate.

List of Subjects in 30 CFR Part 938 

Intergovernmental relations, Surface 

mining, Underground mining.

Dated: August 26, 2004. 

Brent Wahlquist, 

Regional Director, Appalachian Regional 

Coordinating Center.

For the reasons set out in the 

preamble, 30 CFR part 938 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.

§§ 938.12, 938.15, 938.16 [Amended]

■ 2. Section 938.12 is amended as 

follows: Paragraphs (a)(2), (a)(3), (a)(4), 

(a)(7), (a)(8), (a)(9) and (a)(10) are 

removed and reserved. Paragraphs 

(a)(14) through and including (a)(30) are 

removed.

■ 3. 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:

§ 938.15 Approval of Pennsylvania 

regulatory program amendments.

* * * * *

Original amendment 

submission date 

Date of final publication Citation/description 

* * * * * * * 

August 27, 2003 .......... December 9, 2004 ...... 25 Pa. Code 86.1 modification of definition of underground mining activities, 86.151(b)(2), 

86.152(a), 89.5, Addition of definitions of EPAct structures and EPAct water supplies; removal of definition of permanently affixed appurtenant structures; modification of definitions 

of underground mining activities and underground mining operations, 89.141(d), 

89.142a(a), (c) through (i), 89.143a(a), (c) and (d), 89.144a(a) and (b), 89.145a(a), (b), (e) 

and (f), 89.146a(c)(2), and 89.152(a) and (b). 

In BMSLCA, Sections 5.2(b)(2), 5.2(d), 5.2(e)(2), 5.2(i), 5.3(a), 5.3(b), 5.3(c), 5.5(c), 5.5(f), 

5.6(c), and 5.6(d). 

§ 938.16 [Amended]

■ 4. Section 938.16 is amended by 

removing paragraphs (hhhh) through 

and including (bbbbbb).

[FR Doc. 04–26928 Filed 12–8–04; 8:45 am] 

BILLING CODE 4310–05–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 938 

[PA–141–FOR] 

Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior.

ACTION: Final rule.

SUMMARY: We are superseding portions 

of Pennsylvania’s Bituminous Mine 

Subsidence and Land Conservation Act 

(BMSLCA) to the extent that they are 

inconsistent with the requirements of 

the Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act).

EFFECTIVE DATE: December 9, 2004.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Director, Pittsburgh Field 

Division, Telephone: (717) 782–4036, email: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program 

II. Background on the Action 

III. OSM’s Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations

I. Background on the Pennsylvania 

Program 

Section 503(a) of 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 conditions of 

approval in the July 30, 1982, Federal 

Register (47 FR 33050). You can also 

find later actions concerning 

Pennsylvania’s program and program 

amendments at 30 CFR 938.11, 938.12, 

938.15 and 938.16. 

II. Background on the Action 

Pursuant to Section 505(b) of SMCRA 

and 30 CFR 730.11(a), we are 

superseding portions of the following 

sections of BMSLCA: 5.1(b) (52 P.S. 

1406.5a(b)), 5.2(g) (52 P.S. 1406.5b(g)), 

5.2(h) (52 P.S. 1406.5b(h)), 5.4(a)(3) (52 

P.S. 1406.5d(a)(3)), 5.4(c) (52 P.S. 

1406.5d(c)), 5.5(b) (52 P.S. 1406.5e(b)) to 

the extent identified for each section as 

noted below in ‘‘Section III. OSM’s 

Findings.’’ We are also revising our 

disapprovals published in the Federal 

Register on December 27, 2001 (66 FR 

67010), to be consistent with this action 

regarding these sections of BMSLCA. 

We are taking these actions because we 

have determined that there are aspects 

of these sections that are inconsistent 

with SMCRA and the Federal 

regulations.

When we disapproved these sections 

in the final rulemaking published in the 

Federal Register on December 27, 2001 

(66 FR 67010), we also imposed 

requirements, codified at 30 CFR 

938.16, to amend BMSLCA related to 

these sections. Pennsylvania challenged 

these disapprovals and required 

amendments, along with others 

contained in that same December 27, 

2001, Federal Register notice, by filing 

a lawsuit against OSM in U.S. District 

Court for the Middle District of