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 

71552 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

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 

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

71554 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

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. 

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

71556 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

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 

§ 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. TriState 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. 

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

71558 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

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 

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

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.

■ For the reasons set out in the preamble, 

30 CFR part 938 is amended as set forth 

below:

PART 938—PENNSYLVANIA

■ The authority citation for part 938 

continues to read as follows:

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

■ 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:

§ 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).

* * * * *

■ 2. Add § 938.13 to read as follows:

§ 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 

71560 Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / Rules and Regulations 

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