[Federal Register Volume 69, Number 236 (Thursday, December 9, 2004)]
[Rules and Regulations]
[Pages 71551-71560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26927]


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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.

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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, e-mail: <a href="/cdn-cgi/l/email-protection#ddbaafb4b8bab8af9db2aeb0afb8f3bab2ab"><span class="__cf_email__" data-cfemail="adcadfc4c8cac8dfedc2dec0dfc883cac2db">[email protected]</span></a>.

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

[[Page 71552]]

Pennsylvania. During settlement discussions Pennsylvania agreed to 
implement regulatory changes to address the issues raised in these 
particular disapprovals, as well as others. We are now superseding 
these sections of the statute to the extent noted in this notice so 
that there will be no confusion regarding the status of those portions 
of BMSLCA listed above that conflict with the revised regulations we 
are simultaneously approving in a separate notice. In that separate 
notice, we are also removing the requirements to amend these sections 
of BMSLCA.
    These sections are being superseded for essentially the same 
reasons cited under ``Director's Findings'' in a notice of final 
rulemaking published in the Federal Register on December 27, 2001 (66 
FR 67010). Accordingly, that notice is a part of the record for this 
action as well.
    On September 22, 2003, we published a notice of proposed rulemaking 
in the Federal Register concerning the proposed action to supersede the 
above sections of BMSLCA (68 FR 55134). In the same document, we opened 
the public comment period and scheduled public hearings on the proposed 
action to supersede sections of BMSLCA. We held the 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). The public comment 
period ended on October 22, 2003.
    In a separate proposed rulemaking published in the Federal Register 
on September 22, 2003 (68 FR 55106), we asked for comments on 
regulatory changes and clarifications that Pennsylvania submitted to 
OSM to satisfy the required amendments published in the Federal 
Register on December 27, 2001 (68 FR 55106). In the September 22, 2003, 
proposed rule, we also announced that we would take testimony and 
comments for these changes and clarifications during the same public 
hearings scheduled for the proposed action to supersede sections of 
BMSLCA. During the hearings for both rulemakings, we received 18 
distinct sets of comments through written and oral testimony. Comments 
were received from the following:
    Industry: Pennsylvania Coal Association (PCA).
    Private Citizens: Eight homeowners.
    Businesses: The Hothouse Flora 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; 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.
    We received 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). In this final rule, we will only reply to those comments 
pertaining to the superseding of portions of BMSLCA. In a separate 
final rule published this date, we will reply to comments regarding 
Pennsylvania's submission of regulatory changes and clarifications (see 
PA-143-FOR).

III. OSM's Findings

    Pursuant to Section 505(b) of SMCRA and 30 CFR 730.11(a), the 
Secretary is superseding the following provisions of BMSLCA to the 
extent that they are inconsistent with, or preclude implementation of, 
SMCRA. In a separate final rule published in today's Federal Register, 
we are approving proposed changes to Pennsylvania's regulatory program 
and removing the required amendments at 30 CFR 938.16(hhhh) through 
(bbbbbb) (see the final rule on PA-143-FOR).
    We are superseding the following sections of BMSLCA to the extent 
noted:
    Section 5.1(b). We are superseding Section 5.1(b) to the extent 
that it would limit an operator's liability to restore or replace a 
water supply covered under Section 720 of SMCRA. Section 5.1(b) 
provides that:
    (b) A mine operator shall not be liable to restore or replace a 
water supply under the provisions of this section if a claim of 
contamination, diminution or interruption is made more than two years 
after the supply has been adversely affected.
    After consideration of all comments received in response to our 
proposed rulemaking of September 22, 2003 (68 FR 55134), we are making 
a final determination to supersede Section 5.1(b) to the extent noted 
above. We are making this determination because we have found Section 
5.1(b) to be inconsistent with the requirements of SMCRA and the 
Federal regulations to the extent that it limits an operator's 
liability for replacement of water supplies protected under Section 720 
of SMCRA. In this superseding notice, we are making it clear that 
Section 5.1(b) is superseded only to the extent noted above. Our 
reasons for superseding Section 5.1(b) are essentially the same as we 
expressed in our December 27, 2001, final rule. Please see our December 
27, 2001, Federal Register (66 FR at 67014-67015) for a complete 
discussion of this section.
    Section 5.2(g). 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. Section 
5.2(g) provides that:
    (g) If an affected water supply is not restored or reestablished or 
a permanent alternate source is not provided within three years, the 
mine operator may be relieved of further responsibility by entering 
into a written agreement providing compensation acceptable to the 
landowner. If no agreement is reached, the mine operator, at the option 
of the landowner, shall:
    (1) Purchase the property for a sum equal to its fair market value 
immediately prior to the time the water supply was affected; or
    (2) Make a one-time payment equal to the difference between the 
property's fair market value immediately prior to the time the water 
supply was affected and at the time payment is made; whereupon the mine 
operator shall be relieved of further obligation regarding 
contamination, diminution or interruption of an affected water supply 
under this act. Any measures taken under Sections 5.1 and 5.3 and this 
section to relieve a mine operator of further obligation regarding 
contamination, diminution or interruption of an affected water supply 
shall not be deemed to bar a subsequent purchaser of the land on which 
the affected water supply was located or any water user on such land 
from invoking rights under this section for contamination, diminution 
or interruption of a water supply resulting from subsequent mining 
activity other than that contemplated by the mine plan in effect at the 
time the original supply was affected.
    After consideration of all comments received in response to our 
proposed rulemaking of September 22, 2003 (68 FR 55134), we are making 
a final determination to supersede Section 5.2(g) to the extent noted 
above. We are making this determination because we have found that the 
limitation on an operator's liability for water supply replacement in 
Section 5.2(g) to be less

[[Page 71553]]

stringent than Section 720 of SMCRA and less effective than 30 CFR 
817.41(j) which require restoration or replacement of protected water 
supplies without exception. In this superseding notice, we are making 
it clear that Section 5.2(g) is superseded only to the extent noted 
above.
    Our reasons for superseding Section 5.2(g) are essentially the same 
as we expressed in our December 27, 2001, final rule. Please see our 
December 27, 2001, Federal Register (66 FR 67018) for a complete 
discussion of this section.
    Section 5.2(h). We are superseding Section 5.2(h) of BMSLCA to the 
extent that it would preclude Pennsylvania from requiring the 
restoration or replacement of a water supply covered under Section 720 
of SMCRA. Section 5.2(h) provides that:
    (h) Prior to entering into an agreement with the mine operator 
pursuant to subsection (g), the landowner may submit a written request 
to the department [Department of Environmental Resources] asking that 
the department review the operator's finding that an affected water 
supply cannot reasonably be restored or that a permanent alternate 
source, as described in subsection (i), cannot reasonably be provided. 
The department shall provide its opinion to the landowner within sixty 
days of receiving the landowner's request. The department's opinion 
shall be advisory only, including for purposes of assisting the 
landowner in selecting the optional compensation authorized under 
subsection (g). The department's opinion shall not prevent the 
landowner from entering into an agreement with the mine operator 
pursuant to subsection (g), and such opinion shall not serve as the 
basis for any action by the department against the mine operator or 
create any cause of action in a third party, provided the operator 
otherwise complies with subsection (g).
    After consideration of all comments received in response to our 
proposed rulemaking of September 22, 2003 (68 FR 55134), we are making 
a final determination to supersede Section 5.2(h) to the extent noted 
above. We are making this determination because we have found Section 
5.2(h) to be less stringent than Section 720 of SMCRA and less 
effective than 30 CFR 817.41(j) which require restoration or 
replacement of protected water supplies without exception. In this 
superseding notice, we are making it clear that Section 5.2(h) is 
superseded only to the extent noted above. Our reasons for superseding 
Section 5.2(h) are essentially the same as we expressed in our December 
27, 2001, final rule. Please see our December 27, 2001, Federal 
Register (66 FR 67018-67019) for a complete discussion of this section.
    Section 5.4(a)(3). 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. This provision is being 
superseded to the extent that it may exclude certain structures from 
the repair and compensation provisions of SMCRA.
    Section 5.4(a)(3) provides that:
    5.4. Restoration or compensation for structures damaged by 
underground mining.
    (a) Whenever underground mining operations conducted under this act 
cause damage to any of the following surface buildings overlying or in 
the proximity of the mine:
* * * * *
    (3) Dwellings used for human habitation and permanently affixed 
appurtenant structures or improvements in place on the effective date 
of this section or on the date of 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; or
* * * * *
    After consideration of all comments received in response to our 
proposed rulemaking of September 22, 2003 (68 FR 55134), we are making 
a final determination to supersede Section 5.4(a)(3) to the extent 
noted above. We are making this determination because we have found 
that the limitation on an operator's liability for repair or 
compensation for subsidence damage to structures protected under 
Section 720 of SMCRA in Section 5.4(a)(3) to be less effective than the 
Federal regulations at 30 CFR 701.5 and 817.121(c)(2). These Federal 
regulations require repairs or compensation for damage to occupied 
dwellings and structures related thereto existing at the time of 
mining, regardless of whether they are permanently affixed or whether 
they are in place on the effective date of the application for a mine 
permit or a renewal of that permit. In this superseding notice, we are 
making it clear that Section 5.4(a)(3) is superseded only to the extent 
noted above. Our reasons for superseding Section 5.4(a)(3) are 
essentially the same as we expressed in our December 27, 2001, final 
rule. Please see our December 27, 2001, Federal Register (66 FR 67021) 
for a complete discussion on this section.
    Section 5.4(c). 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. Section 5.4(c) provides that:
    (c) A mine operator shall not be liable to repair or compensate for 
subsidence damage if the mine operator, upon request, is denied access 
to the property upon which the building is located to conduct premining 
and postmining surveys of the building and surrounding property and 
thereafter serves notice upon the landowner by certified mail or 
personal service, which notice identifies the rights established by 
Sections 5.5 and 5.6 and this section, the mine operator was denied 
access and the landowner failed to provide or authorize access within 
ten days after receipt thereof.
    After consideration of all comments received in response to our 
proposed rulemaking of September 22, 2003 (68 FR 55134), we are making 
a final determination to supersede Section 5.4(c) to the extent noted 
above. We are making this determination because we have found that the 
limitation on an operator's liability for repair or compensation for 
subsidence damage to structures covered under Section 720 of SMCRA in 
Section 5.4(c) to be less effective than the Federal regulations at 30 
CFR 817.121(c)(2). The Federal regulations do not provide for relief of 
an operator's liability for repair or compensation for subsidence 
damage to protected structures due to underground coal mining 
operations when a landowner does not allow access to the property for a 
premining survey. In this superseding notice, we are making it clear 
that Section 5.4(c) is superseded only to the extent noted above. Our 
reasons for superseding Section 5.4(c) are essentially the same as we 
expressed in our December 27, 2001, final rule. Please see our December 
27, 2001, Federal Register (66 FR 67022) for a complete discussion on 
this section.
    Section 5.5(b). 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

[[Page 71554]]

restoration of, or compensation for, subsidence damages to a structure 
covered under Section 720 of SMCRA. Section 5.5(b) provides that:
    (b) If the parties are unable to agree within six months of the 
date of notice as to the cause of the damage or the reasonable cost of 
repair or compensation, the owner of the building may file a claim in 
writing with the Department of Environmental Resources, a copy of which 
shall be sent to the operator. All claims under this subsection shall 
be filed within two years of the date damage to the building occurred.
    After consideration of all comments received in response to our 
proposed rulemaking of September 22, 2003 (68 FR 55134), we are making 
a final determination to supersede Section 5.5(b) to the extent noted 
above. We are making this determination because we have found that the 
limitation on an operator's liability for repair or compensation for 
subsidence damage in Section 5.5(b) to be inconsistent with the 
requirements of SMCRA and the Federal regulations. Neither SMCRA nor 
the Federal regulations provide for a time limitation to file 
subsidence damage claims. In this superseding notice, we are making it 
clear that Section 5.5(b) is superseded only to the extent noted above. 
Our reasons for superseding Section 5.5(b) are essentially the same as 
we expressed in our December 27, 2001, final rule. Please see our 
December 27, 2001, Federal Register (66 FR 67023-24) for a complete 
discussion on this section.
    Please note that we are superseding only the provisions of BMSLCA 
to the extent noted above in this notice. These provisions, as noted 
above, cannot be implemented or enforced by any party in a manner 
inconsistent with this superseding as they would apply to a water 
supply or structure covered by Section 720 of SMCRA.

IV. Summary and Disposition of Comments

Public Comments

    We received comments from the Pennsylvania Coal Association (PCA) 
and the National Mining Association (NMA) of a general nature on our 
proposed rule to supersede the above noted sections of Pennsylvania's 
Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) that were 
not directed specifically to those sections of BMSLCA. We will respond 
first to these comments and then respond to the specific comments 
according to the section of BMSLCA they pertain to.

General Comments

    PCA provided written and oral comments at the public hearings 
(Administrative Record Nos. PA 841.71 and PA 841.88) and by letters 
dated October 15, 2003 (Administrative Record No. PA 841.85), October 
22, 2003 (Administrative Record No. PA 841.84), and November 12, 2003 
(Administrative Record No. PA 841.96). PCA indicated that there exists 
no factual basis for OSM to conclude that any provision of Act 54 
should be ``superseded,'' and PCA requests that OSM respond to these 
comments by citing specific factual instances where the implementation 
of the sections of BMSLCA proposed to be superseded, as applied, have 
resulted in actual inconsistencies with SMCRA or OSM's regulations.
    We disagree with PCA's premise that there exists no factual basis 
for this action. Pennsylvania Department of Environmental Protection 
(PADEP) stated in its August 27, 2003, proposal that twenty-two of the 
required amendments from the December 27, 2001, final rule involved 
changes to BMSLCA. It asserts that the General Assembly is the only 
State entity with the authority to make the statutory changes required 
by the December rule and that our superseding of portions of BMSLCA 
will enable Pennsylvania to promulgate regulations to respond to some 
of the requirements of our December 27, 2001, final rule. PADEP 
contends that without this action, some of the regulations PADEP is 
proposing would have conflicted with BMSLCA. Therefore, to alleviate 
Pennsylvania's concerns and to remove any ambiguity regarding the 
status of those portions of BMSLCA described above, we are superseding 
them.
    PCA further commented that Pennsylvania has, for over nine years, 
been regulating the subsidence impacts of bituminous underground mining 
in accordance with the very provisions of Act 54 which OSM now proposes 
to ``supersede.'' Throughout this nine year period, OSM has been fully 
willing to ``share'' enforcement authority with PADEP, reserving the 
right to ``directly enforce'' its interpretation of Federal law in 
circumstances where it found that citizens of Pennsylvania were being 
denied their ``rights'' under SMCRA or OSM's regulations. PCA noted 
that, despite nine years of ``dual enforcement,'' there have been only 
a few instances when OSM saw any need to ``directly enforce'' some 
aspect of its subsidence control program. PCA requested that OSM 
respond to PCA's comment that OSM has had no cause, for over nine 
years, to conclude that the Pennsylvania subsidence control program has 
deprived anyone of their ``rights'' under Federal law.
    As provided for under a July 28, 1995, Federal Register notice (60 
FR 38685-38689), OSM and Pennsylvania have had an enforcement agreement 
to provide for the implementation of the EPAct water supply replacement 
and structure requirements of Section 720 of SMCRA. Since 1995, we have 
had to utilize our enforcement authority in two instances where the 
Pennsylvania program was unable to require the necessary corrective 
action. In those cases, landowners' rights under SMCRA were protected. 
While previous enforcement actions can provide information on the 
adequacy of State program requirements, our standard of review of State 
program amendments requires a determination that the State regulations 
are no less effective than the Federal regulations. In this case, this 
determination is being made without regard to a State's past 
enforcement of its program because the regulations being reviewed here 
are necessary to insure future compliance.
    PCA provided further comments noting that SMCRA does not impose the 
standard of review applied by OSM in this case and does not require 
that a State program ``mirror'' that of OSM's. Instead, SMCRA 
specifically recognizes that each State should be free to develop its 
own program of laws and regulations governing subsidence control which 
is tailored to its specific needs and interests. PCA cited a court case 
from the United States Court of Appeals for the Third Circuit in 
support of this argument.
    OSM's standard for review for superseding part of a State law or 
regulation is whether the State's law or regulation is inconsistent 
with, or precludes implementation of, provisions of the Act or its 
implementing regulations. The very limited actions taken in this notice 
are fully in accord with that standard, as explained in each action.
    PCA also asserts that OSM only had four concerns with BMSLCA in 
1995 and no other concerns were expressed by OSM until the December 27, 
2001, final rule. We disagree with this characterization because in the 
July 28, 1995, Federal Register notice, PADEP disclosed twelve 
significant situations where BMSLCA did not provide water replacement 
or repair to structures, as required by EPAct. Additionally, once we 
received the formal amendment in 1998, we sent lengthy letters to PADEP 
expressing our concerns; please see the December 27, 2001, rule for 
details.

[[Page 71555]]

    NMA provided general comments via e-mail dated October 22, 2003 
(Administrative Record No. PA 841.83). NMA stated that there is no 
basis for OSM to supersede the above noted provisions of Pennsylvania's 
BMSLCA because OSM has not identified any evidence that the 
Pennsylvania program is inconsistent with SMCRA or is resulting in a 
deprivation of Federal rights under the Energy Policy Act Amendments of 
1992.
    We do not agree with this comment. As explained above for each 
action, the provisions being superseded either limit an operator's 
liability or preclude corrective action by Pennsylvania in ways 
inconsistent with Federal law. Pennsylvania agrees that these actions 
are necessary because of its concern that revisions to make its 
regulations consistent with Federal law would make the regulations 
inconsistent with BMSLCA. Therefore, OSM is superseding specific 
language in six sections of BMSLCA to the extent that the provisions 
are inconsistent with, or preclude implementation of, SMCRA.
    NMA further stated that Pennsylvania's statutory provisions must be 
evaluated in a holistic, not a piecemeal, fashion. NMA stated that OSM 
is applying the incorrect standard to determine whether or not the 
State law should be superseded. OSM should not compare the State and 
Federal rules line by line and disapprove the State law if there is any 
difference between them. Instead, OSM must evaluate whether the State 
law is more or equally protective as a whole, not piece by piece. NMA 
noted that Pennsylvania provided superior rights to property owners 
when compared to the Federal rules in many respects. Therefore, OSM 
must take the whole package into account before deciding whether a 
State's statute and program is equal to or better than what SMCRA 
provides. In addition, the failure to use a holistic approach will 
improperly require every State program to be a mirror of the Federal 
rules. Such a result may be easier for OSM, but it would also be 
contrary to SMCRA and judicial precedent, and it would be bad public 
policy. NMA concluded their comment by stating that a piecemeal 
approach will discourage States from experimenting or creating 
innovative solutions to solve problems.
    We agree that a State's statutory provisions need not match Federal 
provisions line for line. However, in this case, Federal law expressly 
imposed obligations on operators which State law expressly limited in a 
manner inconsistent with Federal law. This inconsistency limited the 
rights of other parties provided for by Federal law.
    NMA stated that the Federal Government, and this Administration in 
particular, espouses principles of States Rights, comity, and 
Federalism, however, none of these principles are respected by OSM's 
action in this rule. NMA further stated that Pennsylvania is among the 
most experienced regulators of mining activity in the United States and 
that to suggest, without evidence to support it, that the Pennsylvania 
legislature is not adequately protecting the rights of its citizens is 
inappropriate. NMA also stated that, contrary to OSM's statement at 68 
FR 55137, this rule does have Federalism implications because the State 
provisions do not conflict with any of SMCRA's provisions and that OSM 
has provided no evidence of problems ``on the ground'' with these 
provisions in almost a decade. NMA concludes that OSM has no basis to 
supersede these duly enacted provisions of State law.
    NMA has misstated the proposed rule's implications with regard to 
the principles of State's Rights and Federalism. While we acknowledge 
Pennsylvania's experience in mine regulation, our review is restricted 
to a determination of whether the provisions are consistent with SMCRA 
and the regulations. Consistent with State's Rights and Federalism 
concepts, Pennsylvania provisions that provide for more stringent land 
use and environmental controls than SMCRA or its implementing 
regulations cannot be, and are not, construed as inconsistent with 
SMCRA. State provisions that provide less stringent controls are 
inconsistent with SMCRA. This review and approval process is 
specifically required under SMCRA and has no implications with regard 
to the principles of States Rights or Federalism.
    NMA further questioned how enforcement would occur under the set-
aside proposals. NMA thought that it is unclear how provisions are to 
be enforced if the Pennsylvania statute is superseded.
    We have superseded the above portions of BMSLCA only to the extent 
that they limited protections or responsibilities mandated by SMCRA and 
the Federal regulations. These sections of BMSLCA remain in the 
regulatory program for Pennsylvania and we have limited their 
application only to the extent stated in this notice. By superseding 
these provisions to the extent noted above we are only ensuring that 
they are not applied in a manner inconsistent with SMCRA or the Federal 
regulations.
    Statute specific comments:

Sections 5.2(g) and (h)

    PCA provided comments regarding our proposed superseding of 
Sections 5.2(g) and 5.2(h) of BMSLCA in its October 15, 2003, letter. 
PCA believes that these sections are not inconsistent with SMCRA or 
OSM's own interpretation of its regulations relating to the replacement 
and restoration of domestic water supplies. PCA noted our statements 
from the proposed rule that rare cases may exist where the operator 
cannot develop an adequate replacement water supply. OSM's view that 
such instances will be ``rare,'' may well be the case in other States 
but in Pennsylvania replacement or restored supplies often must meet 
``drinking water'' criteria, a far more stringent requirement than 
imposed by Federal law. Consequently, it is more likely, in 
Pennsylvania, that it will prove impossible to provide an ``adequate'' 
replacement supply than would be the case in other States. This is a 
change in position from PCA's previous statement that ``[t]hese cases 
are indeed rare in Pennsylvania [and] [t]hat to the best of PCA's 
knowledge, Sections 5.2(g) and (h) have never been exercised since 
enactment of Act 54.'' (Administrative Record No. PA 841.71). PCA 
believes that superseding these sections which allow compensation in 
lieu of replacement will put Pennsylvania's operators at a 
disadvantage.
    PCA further states that OSM's ``interpretation'' of these two 
sections of BMSLCA is flawed, in part, because PADEP itself appears to 
have improperly interpreted the language of these sections. Section 
5.2(g) does not have to be read to mean that if three years pass and a 
property owner has not had its domestic water supply restored or 
replaced that the operator is relieved of its obligation to try and 
provide such a supply and the only remedy available to the property 
owner is ``fair compensation.'' Instead, because BMSLCA is generally to 
be construed in a manner which would enable Pennsylvania to retain 
primary jurisdiction over the regulation of underground coal mining, an 
alternative and supportable interpretation of Section 5.2(g) is that, 
with respect to water supplies protected by Federal law, operators are 
required to promptly and diligently attempt to restore the affected 
domestic water supply or to replace it with an adequate alternative 
supply for at least 3 years, unless it can be sooner shown that it will 
be impossible to do so.
    PCA also requests that we should wait and see if there is a problem 
with these

[[Page 71556]]

sections of BMSLCA, and if there is, then supersede the statute. 
Finally, PCA requests that we get an opinion from an appropriate State 
official as to whether BMSLCA can be interpreted in a manner that 
avoids a conflict with SMCRA.
    We disagree with PCA's comment. Generally, courts grant deference 
to an agency's interpretation of a statute that the agency implements. 
PADEP's interpretation that Sections 5.2(g) and (h) are inconsistent 
with the regulations it has submitted to us is reasonable. PADEP's 
proposed regulations eliminate a provision allowing an operator to 
escape liability for replacement or restoration of an EPAct protected 
water supply by executing a purchase agreement with a landowner. These 
changes, at 25 Pa. Code 89.152, have been approved in a separate 
rulemaking published in today's Federal Register. These changes make 
Sections 5.2(g) and (h) inconsistent with the regulatory provisions.
    PCA's suggested alternate reading of Section 5.2(g) of BMSLCA is 
not Pennsylvania's interpretation of that section of the statute. As 
Pennsylvania noted in its submission to us, ``The existing provisions 
of Sections 5.2(g) and (h) limit PADEP's authority to require a 
replacement water supply when an operator decides to pursue a 
settlement involving compensation. If PADEP is to have authority to 
require replacement water supplies in situations where it determines 
that a replacement water supply meeting the standards in Sec.  
89.145a(f) can be developed, OSM must supersede these provisions to the 
extent they would interfere with PADEP actions requiring replacement of 
EPACT water supplies.'' Pennsylvania's interpretation is more in line 
with the language of BMSLCA. Additionally, PCA's alternate 
interpretation does not provide for prompt replacement of water 
supplies because it allows an operator three years across the board to 
attempt replacement.
    As stated before, our standard of review is not a ``wait and see'' 
approach, but whether the State's laws and regulations are no less 
stringent than SMCRA and no less effective than the Federal 
regulations. Lastly, we did get opinions from State officials who 
concluded that certain sections of BMSLCA conflicted with SMCRA and 
Pennsylvania's proposed regulations. These opinions are in the form of 
the August 27, 2003, State program submission.
    We received comments from Tri-State in a letter dated November 4, 
2003 (Administrative Record No. PA 841.94). Tri-State believes our 
superseding of portions of Sections 5.2(g) and 5.2(h) of BMSLCA alone 
are inadequate because Section 5.3 was not superseded. Tri-State 
believes that Section 5.3 must also be superseded to avoid a conflict 
between BMSLCA and the regulations Pennsylvania is proposing to enact 
to satisfy the requirements of 30 CFR 938.16.
    Tri-State further indicates that it does not approve of the 
different protections accorded to EPAct water supplies vs. non-EPAct 
water supplies.
    Finally, Tri-State believes that the three year statute of 
limitations should be deleted because in older mines and even modern 
room and pillar mines, water loss can occur from pillar failure long 
after mining ceases.
    We disagree with Tri-State's characterization of Section 5.3. In 
our review of BMSLCA, we found that Section 5.3 is needed because it 
provides the ability for landowners and operators to determine the 
manner and means to restore or replace an affected water supply. Also, 
it provides for situations when an operator will not be required to 
restore or replace a water supply outside the protections of Section 
720 of SMCRA.
    We understand Tri-State's concerns regarding differing standards 
between Federally and State protected water supplies and structures, 
but there is nothing in the Federal regulations that prohibits a State 
from implementing different sets of rules for Federally protected 
structures and water supplies than for those structures and supplies 
protected only by the State. As long as Pennsylvania's regulations 
applying to structures and water supplies protected under Section 720 
of SMCRA are no less effective than the Federal regulations, we will 
approve them.
    With regard to Tri-State's concern about the three year statute of 
limitation, we believe that the steps taken by Pennsylvania including: 
(1) Amending its definition of ``underground mining activities'' to 
include mine pool stabilization; (2) demonstrating that it has the 
authority to require an operator to replace a water supply if an 
operator uses erroneous or fraudulent information; and, (3) its 
interpretation that Section 13 of BMSLCA will not be affected, 
demonstrates that there is recourse for the landowner and there is a 
way to require the replacement of water supply after the three years. 
These steps make the operator liable for water supply replacement and 
are no less effective than the Federal regulations.

Section 5.4(a)(3)

    PCA provided a comment on this section in its October 15, 2003, 
letter. PCA noted that Pennsylvania law provides protection to all 
dwellings in place when its laws have changed to impose greater 
obligations on mine operators and, since 1994, has provided protection 
for structures built after 1994, if they are in place at a time when 
the operator is (or should be aware) that the structure exists. 
However, the Pennsylvania General Assembly decided not to provide such 
protection to the persons who, with knowledge that mining will occur 
beneath their property within the next five years, voluntarily assume 
the risk of future subsidence damage by building a new structure, the 
location and value of which could seriously impede the operators 
ability to implement its already developed and approved mining plan. 
PCA notes that even though underground mining in Pennsylvania, unlike 
underground mining in other States, is a regular occurrence in areas 
where new structures are being built, and Pennsylvania affords 
protection to far more structures than Federal law does, OSM has 
concluded that Pennsylvania's program is not ``consistent'' with SMRCA 
and OSM's regulations. PCA believes that OSM has apparently done so 
because Pennsylvania law provides that persons who ``elect'' to build a 
new dwelling with knowledge that it might be damaged should be not be 
permitted to profit from their folly and should, like all other 
property owners, have an obligation to take reasonable steps to 
mitigate their own potential for damage.
    Finally, PCA asserts that this section does not deny property 
owners a right to file a subsidence claim if they did not know their 
dwelling would be undermined. The purpose of BMSLCA is to discourage 
property owners who knew mining was imminent and would impose a 
moratorium of no more than 5 years on construction. PCA claims that 
there are several unique factors that contributed to the development of 
Section 5.4(a)(3): underground mining occurs more frequently under 
residential area than in other States, prevents bad land use planning, 
and requires a homeowner to mitigate their damages.
    We disagree with PCA's characterization that BMSLCA is no less 
effective than the Federal regulations regarding operators' obligations 
to repair or compensate. While it may be prudent to preclude or limit 
the construction of residences on areas about to be subsided, Federal 
regulation provides for repair or compensation for all residences in 
existence at the time of mining.

[[Page 71557]]

Sections 5.4(c)

    PCA submitted comments regarding Section 5.4(c) of BMSLCA in its 
October 15, 2003, letter. PCA indicated it is aware of no instances 
where the provisions of Act 54 relating to premining inspections 
imposed by Section 5.4(c) of BMSLCA, or the two year statute of 
limitations imposed by Section 5.5(b) of BMSLCA, or the provisions of 
Section 5.4(a)(3) of BMSLCA, relating to the time when a structure must 
have been built in order to be ``protected,'' or any of the other 
provisions of BMSLCA which OSM proposes to supersede, were found by OSM 
to have created any need for ``Federal enforcement.'' PCA indicated 
that it is aware of instances where OSM knew that property owners were 
reluctant to allow mine operators premining access to their property to 
take premining mitigation measures, yet did nothing to ``enforce'' 
their alleged Federal ``right'' to deny such access.
    PCA's characterization of the Federal program is incorrect. A 
premining survey is a homeowner's right; it is not an obligation placed 
on the homeowner. As such, it would be inconsistent for homeowners to 
lose the protections afforded under EPAct because they declined to 
exercise their rights. The Federal regulations provide no penalty for 
homeowners electing to not allow an operator to perform a premining 
inspection.
    PCA further commented on Section 5.4(c) that it does not deny any 
owner of a dwelling the right to file a subsidence damage claim. 
Instead, this section of BMSLCA merely conditions 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 postmining 
inspection. PCA further indicated that to assure that operators are not 
required to pay compensation equal to the cost of repair (the 
Pennsylvania compensation standard which is different from, and more 
stringent than, OSM's) for ``damages'' they did not cause, the 
Pennsylvania General Assembly concluded homeowners should not be 
allowed to file subsidence damage claims unless they allow the mine 
operator access to their dwelling to establish a premining baseline of 
its condition.
    We understand PCA's concerns with premining surveys. We, along with 
PADEP, actively encourage landowners to secure premining surveys to 
prove, to all concerned parties, the precise damage caused by 
subsidence. However, there is nothing in SMCRA, the Federal 
regulations, or the approved Pennsylvania program that would prohibit 
underground mining because a pre-subsidence survey by the operator has 
not been completed. As we noted earlier, a landowner who refuses to 
allow an operator access to conduct a premining survey will have to 
provide proof that underground mining operations have caused damage to 
his property. While both Pennsylvania and OSM encourage landowners to 
allow premining surveys, their failure to do so will not stop 
underground mining, but only make it more difficult to prove the extent 
of damages from mining.
    NMA provided comments regarding this section in its e-mail of 
October 22, 2003. NMA disagreed with our proposed superseding of 
Pennsylvania provisions that relieved the operator of the 
responsibility to repair or compensate for structure damage if the 
property owner denied access for premining or postmining surveys. NMA 
stated that premining surveys are another example of State statutory 
provisions that are consistent with SMCRA and therefore should be 
approved by OSM. A requirement to conduct a premining survey protects 
everyone: operators and landowners, in the event that there is a claim 
for damage from subsidence in the future. This is a perfectly rational 
and common sense approach to ensure that legitimate claims for 
subsidence damage are promptly compensated, and at the same time 
protects operators from claims for damage for which they are not 
legally responsible. Coupled with reasonable notice provisions to 
ensure protection of property owners and their rights, these provisions 
are not only consistent with the letter and spirit of Section 720, but 
should be added to the Federal regulations. NMA stated that OSM has 
offered no rational basis to second-guess the determination by 
Pennsylvania that these provisions will enhance the process and provide 
fair protection for all parties for subsidence claims. The agency has 
not even recognized the benefits of pre-subsidence surveys to property 
owners, in that it will facilitate legitimate claims for subsidence 
damage.
    We agree that premining and postmining surveys are important tools 
in the process of ensuring appropriate structure repair/compensation by 
mine operators. However, even though surveys are an important tool in 
reclamation process, the Federal rules requiring repair or compensation 
for damage to non-commercial buildings and dwellings and related 
structures (30 CFR 812.121(c)(2)) do not provide or allow an exception 
to the obligation to repair or compensate when an operator's 
underground mining operation has caused subsidence damage.

Section 5.1(b) and 5.5(b)

    PCA and NMA provided similar comments (PCA in its letter of October 
15, 2003, and NMA in its e-mail of October 22, 2003) on these sections. 
PCA indicated that SMCRA is 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. 
PCA believes that by superseding Sections 5.5(b) and 5.1(b) of BMSLCA, 
OSM is necessarily interpreting SMCRA as precluding any time limitation 
on the filing of subsidence damage claims. This interpretation 
effectively establishes a new regulatory requirement that all states 
must accept for processing any claim for subsidence damage to dwellings 
and any claim for the replacement or restoration of domestic water 
supplies no matter how long the property owner waits to file such a 
claim. PCA submits that OSM is required to engage in formal rulemaking 
before promulgating a new standard of general applicability. It is not 
free to issue ``regulations'' with a national scope in the context of 
ruling on a State program.
    PCA also indicated that, in the absence of any express prohibition 
in SMCRA on placing time 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).
    PCA and NMA believe that there are reasons why statutes of 
limitation are imposed on ``damage'' claims in every jurisdiction in 
the United States, and they relate to a legitimate interest of the 
State in barring claims that are premised on stale evidence and which 
are not pursued until memories have faded and evidence is lost or 
destroyed. The provisions of both State law and Federal law, which 
grant the owners of dwellings and the users of domestic water supplies 
a statutory right to pursue a claim for damages or water supply 
replacement/restoration are, quite simply, statutory tort remedies.
    PCA and NMA further note 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. Section 1201(f). Indeed, in the absence of any express 
limitation action

[[Page 71558]]

period on a Federal statutory claim, the Courts will traditionally 
provide for one. When a statute creating a right of action does not 
specify a limitations of action period, it is not assumed that Congress 
intended that there be no time limit at all on the action.
    PCA and NMA believe that OSM's proposed decision with respect to 
Sections 5.5(b) and 5.1(b) of BMSLCA should not be finalized and these 
sections should be found to be fully consistent with SMCRA and OSM's 
own regulations.
    Federal law does not have time limitations on citizens' rights to 
seek compensation, repair or replacement. We certainly agree that it is 
prudent to file claims soon after damage occurs and expect that, in 
most cases, that will occur. To delay means not only living with the 
damage, but possibly weakening a claim of cause and effect related to 
subsidence that occurred long before. However, that does not alter the 
fact that imposing a time limit on an owner's right to compensation, 
repair or replacement is inconsistent with Federal law. Therefore, we 
have superseded that aspect of BMSLCA to the extent that it limits an 
operator's liability.
    PCA also refers to 30 U.S.C. 1201(f). That section of SMCRA 
accounts for each State's diversity and provides that because of that 
diversity, the States should regulate surface mining and reclamation 
operators. We agree that the States should be the primary enforcer of 
surface coal mining operations. However at Section 503(a) of SMCRA, a 
State may assume primacy over its regulatory program if its laws are in 
accordance with SMCRA and its regulations are consistent with the 
Federal regulations.
    Section 101(g) of SMCRA requires this national consistency to 
``insure that competition in interstate commerce among sellers of coal 
produced in different States will not be used to undermine the ability 
of the several States to improve and maintain adequate standards on 
coal mining operations within their borders.'' 30 U.S.C. 1201(g).
    PCA again states that this is an action in tort. We disagree and 
have previously addressed this issue in our December 27, 2001, rule at 
66 FR 67058, which is part of the record of this rulemaking. We also 
contend that the rationale in the Carlson Mining decision, which was 
discussed in the December 27, 2001, final rule would also apply to 
structure damage.
    With regard to the rest of PCA's arguments, we disagree with PCA's 
characterization of the SMCRA and the Federal regulations. Pennsylvania 
and PCA advanced the same or very similar arguments that we addressed 
in the December 27, 2001, final rule (66 FR at 67014-67015, 67023-67024 
and 67058). PCA has not provided any compelling reason for us to 
reassess the position stated in that final rule.

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). We received no comments directed 
specifically to the superseding of these sections.

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's 
response did not specifically address the superseding of the sections 
of BMSLCA noted above. More information concerning EPA's response can 
be found in the final rule published elsewhere in this Federal Register 
where we approved an amendment to the Pennsylvania program (PA-143-
FOR).

V. OSM's Decision

    It is generally not necessary to use Section 505 of SMCRA or 30 CFR 
730.11(a) with regard to proposed amendments to approved State 
regulatory programs because 30 CFR 732.17(g) provides that ``No such 
change to laws or regulations shall take effect for purposes of a State 
program until approved as an amendment.'' In this instance, however, 
Pennsylvania has actually implemented unapproved statutory and 
regulatory changes and has raised Section 505 in court pleadings. 
Pennsylvania contends that its changes have become effective and that 
Section 505 is applicable. The provisions disapproved in the December 
27, 2001, final rule are ineffective as a matter of Federal law (see 
Section 505 of SMCRA) and, according to Pennsylvania, effective as a 
matter of State law. This situation is unusual in that certain 
provisions of BMSLCA conflict with SMCRA as well as provisions which go 
beyond and do not conflict with SMCRA.
    Therefore, to avoid any doubt whatsoever concerning the Secretary's 
intentions in this unusual and significant matter, and because the 
Secretary has determined that the following State laws are inconsistent 
with SMCRA and its implementing regulations, the Secretary, pursuant to 
Section 505 of SMCRA and 30 CFR 730.11(a), supersedes 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 noted above. In this final rule, we 
are modifying the language of our previous disapproval of the noted 
sections of BMSLCA to make it clear that our superseding of the above 
noted sections applies only to structures and water supplies protected 
under Section 720 of SMCRA. The modified language will be codified at 
30 CFR 938.13.
    We note that this action also resolves the need for the required 
actions related to these sections. They are being removed under a 
separate notice also published in today's Federal Register (see PA-143-
FOR).

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

[[Page 71559]]

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 Federally-recognized 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 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 
unfunded mandate.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 29, 2004.
Rebecca W. Watson,
Assistant Secretary, Land and Minerals Management.

0
For the reasons set out in the preamble, 30 CFR part 938 is amended as 
set forth below:

PART 938--PENNSYLVANIA

0
The authority citation for part 938 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.

0
1. Amend section 938.12 to revise paragraphs (a)(1), (a)(5), (a)(6), 
(a)(11), (a)(12) and (a)(13) to read as follows:


Sec.  938.12  State statutory, regulatory, and proposed program 
amendment provisions not approved.

    (a) * * *
    (1) Section 5.1(b) (52 P.S. 1406.5a(b)) of BMSLCA is not approved 
to the extent noted in 30 CFR 938.13(a)(1).
* * * * *
    (5) Section 5.2(g) (52 P.S. 1406.5b(g)) of BMSLCA is not approved 
to the extent noted in 30 CFR 938.13(a)(2).
    (6) Section 5.2(h) (52 P.S. 1406.5b(h)) of BMSLCA is not approved 
to the extent noted in 30 CFR 938.13(a)(3).
* * * * *
    (11) Section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) of BMSLCA is not 
approved to the extent noted in 30 CFR 938.13(a)(4).
    (12) Section 5.4(c) (52 P.S. 1406.5d(c)) of BMSLCA is not approved 
to the extent noted in 30 CFR 938.13(a)(5).
    (13) Section 5.5(b) (52 P.S. 1406.5e(b)) of BMSLCA is not approved 
to the extent noted in 30 CFR 938.13(a)(6).
* * * * *

0
2. Add Sec.  938.13 to read as follows:


Sec.  938.13  State statutory and regulatory provisions set aside.

    (a) The following provisions of Pennsylvania's Bituminous Mine 
Subsidence and Land Conservation Act (BMSLCA) are inconsistent with the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA) and are 
superseded to the extent noted effective December 9, 2004.
    (1) Section 5.1(b) (52 P.S. 1406.5a(b)) of BMSLCA is superseded to 
the extent that it would limit an operator's liability to restore or 
replace a water supply covered under section 720 of SMCRA.
    (2) Section 5.2(g) (52 P.S. 1406.5b(g)) of BMSLCA is superseded to 
the extent that it would limit an operator's liability to restore or 
replace a water supply covered under section 720 of SMCRA.
    (3) Section 5.2(h) (52 P.S. 1406.5b(h)) of BMSLCA is superseded to 
the extent it would preclude Pennsylvania from

[[Page 71560]]

requiring the restoration or replacement of a water supply covered 
under section 720 of SMCRA.
    (4) The portion of section 5.4(a)(3) (52 P.S. 1406.5d(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,'' is superseded 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.
    (5) Section 5.4(c) (52 P.S. 1406.5d(c)) of BMSLCA is superseded 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.
    (6) The portion of Section 5.5(b) (52 P.S. 1406.5e(b)) of BMSLCA 
that states, ``All claims under this subsection shall be filed within 
two years of the date damage to the building occurred'' is superseded 
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.
    (b) [Reserved]

[FR Doc. 04-26927 Filed 12-8-04; 8:45 am]
BILLING CODE 4310-05-P


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