67010 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 938

[PA–122–FOR]

Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule.

SUMMARY: OSM is approving, with the

exceptions noted below, an amendment

to the Pennsylvania program.

Pennsylvania is amending its

Bituminous Mine Subsidence and Land

Conservation Act (BMSLCA) and

implementing regulations at 25 Pa. Code

Chapter 89 to require underground mine

operators to repair or compensate

landowners for subsidence damage to

certain structures and facilities and to

restore or replace water supplies

adversely impacted by underground

mining operations.

EFFECTIVE DATE: December 27, 2001.

FOR FURTHER INFORMATION CONTACT:

Beverly Brock, Acting Director, Office of

Surface Mining Reclamation and

Enforcement, Harrisburg Field Office,

Harrisburg Transportation Center, Third

Floor, Suite 3C, 4th and Market Streets,

Harrisburg, Pennsylvania 17101,

Telephone: (717) 782–4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

II. Submission of the Amendment

III. Director’s Findings

A. Changes to the BMSLCA

B. Changes to the Regulations at 25 Pa.

Code Chapter 89

IV. Summary and Disposition of Comments

V. Director’s Decision

VI. Effect of Director’s Decision

VII. Procedural Determinations

I. Background on the Pennsylvania

Program

Section 503(a) of the Surface Mining

Control and Reclamation Act (SMCRA

or the Act) permits a State to assume

primacy for the regulation of surface

coal mining and reclamation operations

on non-Federal and non-Indian lands

within its borders by demonstrating that

its State program includes, among other

things, ‘‘* * * a State law which

provides for the regulation of surface

coal mining and reclamation operations

in accordance with the requirements of

the Act; and rules and regulations

consistent with regulations issued by

the Secretary pursuant to the Act.’’ See

30 U.S.C. 1253(a)(1) and (7). On the

basis of these criteria, the Secretary of

the Interior conditionally approved the

Pennsylvania program on July 30, 1982.

You can find background information

on the Pennsylvania program, including

the Secretary’s findings, the disposition

of comments, and the conditions of the

approval in the July 30, 1982, Federal

Register (47 FR 33050). You can find

subsequent actions concerning the

Pennsylvania program and previous

amendments at 30 CFR 938.11, 938.12,

938.15 and 938.16.

II. Submission of the Amendment

By letter dated July 29, 1998

(Administrative Record Number PA

841.07), the Pennsylvania Department of

Environmental Protection (PADEP)

submitted an amendment to its

approved permanent regulatory program

pursuant to the federal regulations at 30

CFR 732.17(b).

We announced the proposed

rulemaking in the August 25, 1998,

Federal Register (63 FR 45199). The

rule described Pennsylvania’s proposal

to modify the BMSLCA through Act 54

and also described Pennsylvania’s

proposal to make changes to its

regulations at 25 Pa. Code Chapter 89,

titled ‘‘Underground Mining of Coal and

Coal Preparation Facilities.’’ The first

public comment period closed on

September 24, 1998. In response to

requests from three people, the

comment period was reopened on

September 25, 1998, (63 FR 51324). This

second comment period closed on

October 19, 1998. A public hearing was

held on October 13, 1998, at

Washington, Pennsylvania

(Administrative record numbers PA

841.21, 841.22, and 841.31).

After reviewing the written comments

we received, the information received at

the public hearing and conducting our

own review of the amendment, we sent

two letters to Pennsylvania requesting

clarification of numerous issues. The

letters were sent on June 21, 1999,

(Administrative record number PA

841.32) and June 23, 2000,

(Administrative record number PA

841.40). Pennsylvania responded to the

first letter on June 1, 2000,

(Administrative record number PA

841.39) and to the second on July 14,

2000 (Administrative record number PA

841.41). The substance of the issues and

Pennsylvania’s responses are discussed

below.

We reopened the public comment

period on December 8, 2000, (65 FR

76954) to seek comment on

Pennsylvania’s response to our two

letters. Two commenters responded to

this reopening. Their comments and our

response are found in the response to

comments section.

III. Director’s Findings

Note: Throughout this final rule, unless

otherwise indicated, ‘‘Director’’ refers to the

Director of OSM.

We have noted throughout this final

rule that we are not approving or are

requiring amendments to some of

Pennsylvania’s statute and regulations

regarding repair or compensation for

structural damage and restoration or

replacement of water supplies. We wish

to make it clear that any of the sections

not approved or required to be amended

only apply to structures and water

supplies that are protected under EPAct

and do not apply to structures or water

supplies that are not protected by

EPAct.

A. Changes to the BMSLCA

Set forth in the explanation below and

the table that follows, pursuant to

SMCRA and the federal regulations at

30 CFR 732.15 and 732.17 are the

Director’s findings concerning the

proposed amendments to the BMSLCA.

The Director’s reasons for approving,

conditionally approving, requiring

amendments to, or not approving

sections of, the BMSLCA are noted. The

sections are listed in the order they

appear in the BMSLCA for easy

reference.

Section 4 (52 P.S. 1406.4). This

section was repealed by Act 54. Prior to

repeal, the section provided protection

from subsidence from bituminous coal

mining to certain structures in place as

of April 27, 1966. The Director is

approving the repeal of this section

because it had afforded a level of

protection to structures beyond that

contained in the federal regulations. The

repeal of section 4 means that the

BMSLCA affords the same level of

protection to structures regardless of

when constructed, which is consistent

with the federal regulations. Thus, the

repeal of this section does not render

the Pennsylvania program less effective

than the federal program.

Section 5(b) (52 P.S. 1406.5(b)). The

full text of section 5(b) prior to

modification by Act 54 read, ‘‘The

department shall require the applicant

to file a bond or other security as recited

in section 6(b) to insure the applicant’s

faithful performance of mining or

mining operations in accordance with

the provisions of section 4.’’ The section

was modified by Act 54 to change the

reference from section 6(b) to 6(a) and

to delete the phrase ‘‘in accordance with

the provisions of section 4.’’

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The Director is approving the deletion

of the phrase ‘‘in accordance with the

provisions of section 4’’ because it was

made in response to the deletion of

section 4, which was approved for the

reasons given above. However, the

reference to section 6(a) is incorrect

because section 6(a) was deleted. The

correct reference should have remained

section 6(b). The Director is requiring

Pennsylvania to correct the reference to

the bonding requirements. Section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)). This section requires that

a water supply adversely impacted by

an underground mine be replaced ‘‘with

a permanent alternate source which

adequately serves the premining uses of

the water supply or any reasonably

foreseeable uses of the water supply.’’

The implementing regulations at 25 Pa.

Code 89.145a(b) include identical

language. Pennsylvania’s implementing

regulations at 25 Pa. Code 89.145a(f)(3)

also specify that— A restored or replaced water supply

will be deemed adequate in quantity if

it meets one of the following: (i) It delivers the amount of water

necessary to satisfy the water user’s

needs and the demands of any

reasonably foreseeable uses. (ii) It is established through a

connection to a public water supply

system which is capable of delivering

the amount of water necessary to satisfy

the water user’s needs and any

reasonably foreseeable uses. (iii) For purposes of this paragraph

and with respect to agricultural water

supplies, the term reasonably

foreseeable uses includes the reasonable

expansion of use where the water

supply available prior to mining

exceeded the farmer’s actual use.

The Director is approving paragraph

(iii) because it provides for protection

for agricultural uses that are not

protected under the federal regulations

and is in accordance with 505(b) of

SMCRA.

By letter dated June 21, 1999, we

originally expressed concern with 25 Pa.

Code 89.145a(f)(3)(i), stating that:

Pennsylvania’s proposed statute [and rule]

appears to be less effective than the federal

rules because it allows evaluation of the

adequacy of a replacement water supply

quantity to be based on use rather than the

premining quantity. Through this statute

[and rule], Pennsylvania would allow

restoration to a level that is adequate for

premining use, but this could be significantly

less than the premining quantity and quality

of the supply.

Pennsylvania responded by letter dated

June 1, 2000:

OSM believes that a replacement water

supply must have a yield equal to or greater

than the yield of the premining water supply

in order to be considered adequate. This

position allows no consideration for the

quantity of water actually used by the

landowner or water user.

In addition, it is important to recognize

that Pennsylvania’s law requires an

accounting of foreseeable uses when

determining the adequacy of replacement

water supplies. If the water user’s premining

needs were only 4 gpm but the user had

plans that would utilize the full 10 gpm

capacity of the well, the replacement supply

would have to produce the 10 gpm under the

Pennsylvania program.

After reconsidering the preamble to

the definition of ‘‘replacement of water

supply’’ at 30 CFR 701.5 and our

comments and Pennsylvania’s responses

on the proposed Pennsylvania program,

we recognize that the definition of

‘‘replacement water supply’’ does not

specify how equivalency is to be

determined and that there may be

alternate approaches to determining

whether a water supply has been

appropriately replaced. As discussed

more fully below, we considered

whether actual and reasonably

foreseeable use, including potential

uses, would be a means of determining

equivalency. We then reviewed the

degree to which Pennsylvania’s

‘‘adequate quantity’’ standard under 25

Pa. Code 89.145a(f)(3)(i) and (ii) would

meet actual and reasonably foreseeable

use. Finally, we examined the degree to

which the Pennsylvania standard would

ensure that the replacement water

source would be equivalent to the

premining source, and the replacement

delivery system would be equivalent to

the premining delivery system.

Use as a Standard: The preamble to

the definition of ‘‘replacement of water

supply’’ at 30 CFR 701.5 contains

various analyses as to the scope of the

replacement requirement. The following

discussion foreclosed basing

replacement supply quantity on just the

actual premining use:

Commenters argue that the definition

should state that the replacement water

supply need only provide the quantity and

quality required for actual use. * * * OSM

maintains that the provision of water quality

and quantity equivalent to that of premining

supplies is plainly required by the term

‘‘replacement’’ [in EPAct].

60 FR 16726.

Additional guidance is found in the

preamble at 60 FR 16727, which

specifies that ‘‘[w]here the spring or

well also serves other purposes, the

quantity of the replacement supply only

needs to be equivalent to the premining

water supply for drinking, domestic, or

residential use.’’ Thus, absolute equality

to the premining quantity was not

deemed to be required in all instances.

We then find a discussion on the

requirement that replacement of the

water supply must account for uses by

future owners. When we were

discussing the option of not replacing

the water delivery system, we said that

an equivalent water source must be

available for development ‘‘so that the

current owner or his or her successor

could utilize the water if desired in the

future.’’ 60 FR 16727 (emphasis added).

Finally, to harmonize these

statements, we look to yet another

preamble statement, which appears to

endorse consideration of the level of

both actual and reasonably foreseeable

use as a means of determining

equivalency. In discussing the portion

of the definition that provides an option

under which the permittee would not

need to replace the water supply

delivery system, the preamble states:

‘‘This provision [identification of a

suitable alternative water source] would

ensure that all coal mining operations

must be conducted so that water

resources remain to support the existing

and proposed use of the land.’’ 60 FR

16727. In the context of the definition,

‘‘proposed use’’ refers to the approved

postmining land use. Although the

postmining land use requirements of 30

CFR 817.133 generally do not apply to

areas overlying underground workings,

since those areas usually do not lie

within the permit area, the

Pennsylvania term ‘‘any reasonably

foreseeable uses’’ is the functional

equivalent of the term postmining land

use for lands outside the permit area.

Although this statement was not

specifically addressed at the issue of

interpreting equivalency, it does

indicate contemplation and acceptance

of the standard proposed by

Pennsylvania.

Since the definition of ‘‘replacement

of water supply’’ at 30 CFR 701.5 does

not specify how equivalency is to be

determined, OSM finds that it can

approve a water supply replacement

provision that relies on actual and

reasonably foreseeable use as a standard

as no less effective than the federal rules

with respect to water quantity.

The Pennsylvania ‘‘Adequate

Quantity’’ Standard: The Pennsylvania

statute at section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)), requires that a water

supply adversely impacted by an

underground mine be replaced ‘‘with a

permanent alternate source that

adequately serves the premining uses of

the water supply or any reasonably

foreseeable uses of the water supply.’’

The implementing regulations at 25 Pa.

Code 89.145a(b) include identical

language. As noted above,

Pennsylvania’s regulations further

define a restored or replaced supply as

adequate in quantity if (i) it delivers the

67012 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

amount of water to satisfy the water

user’s needs and the demands of any

reasonably foreseeable uses or (ii) is a

public water supply system that delivers

the amount of water to satisfy the water

user’s needs and the demands of any

reasonably foreseeable uses. 25 Pa. Code

89.145a(f)(3)(i) and (ii). Pennsylvania

limits ‘‘public water supply systems’’ to

those defined at 25 Pa. Code 89.5.

Responding to OSM concerns on 25

Pa. Code 89.145a(f)(3)(i), Pennsylvania

commented that the replacement water

supply ‘‘must be capable of satisfying

the premining uses * * * and, in

addition, any foreseeable uses the

landowner or water user had intended

to develop.’’ With regard to public water

supplies as a possible replacement,

Pennsylvania stated that ‘‘[a] connection

to a public water supply system is a

reasonable means of replacement if the

public water supply system can satisfy

the water user’s existing and reasonably

foreseeable needs and is adequate for

the purposes served.’’ 28 Pennsylvania

Bulletin (Pa.B.) 2777.

To the extent that Pennsylvania’s

letter and the Pennsylvania Bulletin

language could be read to indicate that

the user must have plans to demonstrate

reasonably foreseeable uses of a water

supply or is limited to the current user,

we disagree with these interpretations.

The proper standard is whether there is

a reasonably foreseeable use for the

premining capacity, not whether actual

plans exist or the uses are limited to the

current owner. Actual plans or the

current owner’s uses (existing and

foreseeable) are merely two ways to

determine foreseeable uses. As

previously stated, the replaced water

supply must take into account not only

the actual use but also any potential

uses by a future owner. As a

consequence, OSM is approving the

language under section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)), and 25 Pa. Code sections

89.145a(b), and 89.145a(f)(3)(i) and (ii),

to the extent that Pennsylvania both

interprets and implements the

provisions consistent with the

definition of ‘‘replacement of water

supply’’ at 30 CFR 701.5 where an

equivalent replacement would be

achieved by meeting the premining uses

and any reasonably foreseeable uses of

the supply. Therefore, OSM is requiring

Pennsylvania to amend 89.145a(b) and

89.145a(f)(i) and (ii), if necessary, to

ensure that the phrase ‘‘satisfy the water

user’s needs and the demands of any

reasonably foreseeable uses’ is

consistent with our discussion

concerning the actual use and the

reasonably foreseeable use of the

supply.

Equivalent Replacement Source and

Delivery System: The definition of

‘‘replacement of water supply’’ at 30

CFR 701.5 and the corresponding

preamble make it clear that

‘‘replacement includes provision of an

equivalent delivery system.’’ 60 FR at

16726. As previously noted, the

preamble discussion related to waiving

the replacement of delivery systems not

needed for the postmining land use

require that the permittee must

demonstrate the availability of a water

source equivalent to premining quality

and quantity. 60 FR at 16727. As a

consequence, a replacement supply

must be equivalent to the premining

supply both in terms of a delivery

system and in terms of water quantity of

the source.

Pennsylvania’s proposed

requirements do not specifically address

EPAct requirements that a replacement

supply must include the provision of an

equivalent water delivery system and an

equivalent water source in terms of

quantity. Under 25 Pa. Code sections

89.145a(f)(1) and 89.145a(f)(4),

Pennsylvania required that the

replacement supply include a delivery

system and proposed criteria for

determining the adequacy of

permanently restored supplies. While

the proposed standards would address

supply permanence, reliability,

maintenance, and owner control and

accessibility, we are concerned that

those criteria, alone, could still require

supply owners to accept water supply

delivery systems that are not equivalent

to the premining system to compensate

for a replacement source that is not

equivalent to the quantity of the

premining source. A water delivery

system equal to the premining system is

crucial to protecting the supply owner

from the practice of installing an

unconventional delivery system to make

up for a source that does not provide an

equivalent quantity of water. Examples

of such systems would be the placement

of in-ground storage tanks to offset well

or spring yields that, alone, do not

provide an equivalent quantity of water,

and the development of an elaborate

delivery system from multiple low yield

wells.

In conclusion, the Director is

approving section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)), which requires that a

water supply adversely impacted by an

underground mine be replaced ‘‘with a

permanent alternate source which

adequately serves the premining uses of

the water supply or any reasonably

foreseeable uses of the water supply,’’ to

the extent that Pennsylvania both

interprets and implements the

provisions at section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)), 25 Pa. Code 89.145a(b),

and 25 Pa. Code 89.145a(f) consistent

with the definition of ‘‘replacement of

water supply’’ at 30 CFR 701.5 where an

equivalent replacement would be

achieved by meeting the premining uses

and any reasonably foreseeable uses of

the supply. Under the Pennsylvania

program, an equivalent delivery system

or source would be those that

adequately serve the premining uses of

the water supply or any reasonably

foreseeable uses of the water supply. As

previously noted above, OSM is

requiring Pennsylvania to amend 25 Pa.

Code sections 89.145a(b) and

89.145a(f)(3)(i) and (ii), if necessary, to

ensure that the phrase ‘‘satisfy the water

user’s needs and the demands of any

reasonably foreseeable uses’ is

consistent with our discussion

concerning the actual use and the

reasonably foreseeable use of the

supply. Finally, OSM will evaluate

implementation of the requirements

through the oversight process to

determine if the processes used by

Pennsylvania to determine current

owner’s needs and demands of any

reasonably foreseeable use are

consistent with the definition of

‘‘replacement of water supply’’ at 30

CFR 701.5.

With respect to replacement timing,

section 5.1(a)(1) (52 P.S. 1406.5a(a)(1))

requires restoration of water supplies

but does not place an obligation on the

permittee to do so promptly. In

addition, section 5.2 (52 P.S. 1406.5b)

and Pennsylvania regulation 25 Pa.

Code 89.146a, as proposed, serve to

condition replacement timing based

upon supply type, location and property

owner notice to the permittee. Section

720(a)(2) requires the prompt

replacement of protected water

supplies. The federal rules require

prompt replacement of a water supply

on ‘‘both a temporary and permanent

basis equivalent to premining quantity

and quality.’’ (30 CFR §§ 701.5 and

817.41(j)). To ensure that all supplies

are guaranteed prompt replacement

consistent with EPAct, the Director is

requiring Pennsylvania to amend this

section to require the prompt

replacement on both a temporary and

permanent basis of all protected water

supplies. In requiring the amended

language under this section, the Director

expects that enforcement actions

requiring prompt replacement will at a

minimum be handled in conformance

with chapter 86, subchapter H

(Enforcement & Inspection), which

requires citation and abatement of

violations within a reasonable time.

Section 5.1(a)(2) (52 P.S.

1406.5a(a)(2)). This section and the

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67013

implementing regulations at 25 Pa. Code

89.145a(f)(2) that include identical

language, provides that a restored or

replaced water supply will be deemed

adequate when it differs in quality from

the premining water supply, if it meets

the Pennsylvania Safe Drinking Water

Act (PSDWA) (35 Pa. Stat. Sections

750.1–750.20), or is comparable to the

premining water supply when that

water supply did not meet these

standards.

By letter dated June 21, 1999, we

originally notified Pennsylvania that its

statute and regulations were less

effective than the federal definition of

‘‘replacement of water supply’’ in 30

CFR 701.5. That definition requires that

a replacement supply be ‘‘equivalent to

premining quantity and quality.’’

We have reconsidered the position

enunciated in our June 21, 1999, letter

after reviewing a letter dated March 9,

1999, from then—OSM Director Kathy

Karpan to Greg Conrad of the Interstate

Mining Compact Commission (IMCC).

In that letter, Director Karpan provided

guidance for the development and

evaluation of State program

amendments implementing EPAct.

Our definition of ‘‘replacement of

water supply’’ in 30 CFR 701.5 requires

that the replacement supply be

equivalent in quantity and quality to the

premining supply. The federal rules do

not define what ‘‘equivalent’’ means

with respect to water quality. However,

the March letter to the IMCC stated that,

with respect to quality, we would

consider the equivalency requirement to

be met if the replacement water supply

was of a ‘‘quality suitable for all current

and reasonably foreseeable uses.’’ The

letter also notes that our regulations do

not require replacement of the source of

the premining water supply. Thus, the

letter implies that ‘‘equivalent’’ does not

translate to ‘‘identical.’’ Instead, it

allows some differences in chemical

composition, as long as the replacement

supply remains suitable for the uses

associated with the premining water

supply and any reasonably foreseeable

uses.

The preamble to our regulations

clearly supports this approach by stating

that our regulations do not require

restoration of the source of the

premining water supply. Instead,

according to the preamble, replacement

of the water supply may be

accomplished through provision of an

alternate source such as a public water

supply or by pipeline from another

location. See 60 FR 16727 and 16733.

Since these alternative sources most

likely would not be precisely identical

to the premining source in terms of

water chemistry, the inference is that

differences in chemical composition are

acceptable as long as the premining and

replacement supplies are equivalent in

terms of suitability for use.

The Pennsylvania regulations at 25

Pa. Code 89.145a(b), when read in

combination with 25 Pa. Code

89.145a(f)(2), require that replacement

supplies meet the standards of the

PSDWA whenever the quality of the

replacement supply differs from that of

the premining supply. The only

exception occurs when the premining

supply does not meet PSDWA

standards, in which case the

replacement supply must be at least

‘‘comparable to the premining water

supply.’’ The rules do not specify how

comparability will be determined, but

25 Pa. Code 89.145a(a)(1) requires that

operators conduct premining water

supply surveys prior to mining within

1000 feet of the water supplies.

Paragraphs (ii) and (iii) of 25 Pa. Code

89.145a(a)(1), require that the surveys

assess the existing and reasonably

foreseeable uses of the water supply and

the chemical and physical

characteristics of the water, including

total dissolved solids (or specific

conductance), pH, total iron, total

manganese, hardness, sulfates, total

coliform, acidity, and alkalinity.

The Director finds that Pennsylvania’s

provisions are no less effective than the

federal requirements concerning the

quality of replacement water supplies.

We are approving Pennsylvania’s rules

in this regard because we interpret our

regulations as meaning that, with

respect to water quality, an equivalency

determination can be made in terms of

suitability for particular uses, rather

than requiring that the chemical

composition of the replacement supply

be identical to that of the premining

supply. Pennsylvania’s public drinking

water systems must meet the

requirements of the PSDWA. As

Pennsylvania noted in a letter dated

June 1, 2000, these requirements are

intended to ensure that water delivered

by these systems is not only safe, but

also palatable and esthetically

acceptable. The PSDWA includes

maximum contaminant levels for iron,

manganese, and sulfates, three

parameters that are of major significance

in the coalfields.

Of the three types of water supplies

protected under EPAct (drinking,

domestic, and residential), drinking

water requires the highest standards.

Since Pennsylvania’s regulations require

that water supplies that meet PSDWA

standards be replaced with supplies of

at least that quality, they satisfy the

quality aspect of the federal water

supply replacement requirements.

Where premining water supplies do

not meet PSDWA standards,

Pennsylvania’s regulation is also no less

effective than the federal definition of

‘‘replacement of water supply’’ in 30

CFR 701.5 with respect to water quality

because the state rule requires

replacement with supplies of

comparable quality. ‘‘Comparable’’ is a

synonym for ‘‘equivalent,’’ which is the

standard in the Federal rule.

Section 5.1(a)(3) (52 P.S.

1406.5a(a)(3)). This section deals with

the definition of ‘‘water supply.’’

Pennsylvania’s definition includes any

existing source of water used for

domestic, commercial, industrial or

recreational purposes or for agricultural

purposes or which serves any public

building or any noncommercial

structure customarily used by the

public. Pennsylvania’s statutory

definition is substantively identical to

its regulatory definition found at 25 Pa.

Code 89.5. The federal definition of

‘‘drinking, domestic or residential water

supply’’ at 30 CFR 701.5 includes water

received from a well or spring used for

‘‘direct human consumption or

household use.’’ Clearly, Pennsylvania’s

definition is not identical to the federal

definition. Nonetheless, Pennsylvania’s

definition includes any existing source

used for domestic water, which

Pennsylvania has stated would ‘‘include

all water supplies covered under the

Federal program.’’ 28 Pa.B. 2767.

Even though Pennsylvania’s

definition covers the same water

sources, we expressed a concern with

the Pennsylvania definition because of

preamble language in the Pennsylvania

Bulletin that stated that the ‘‘Board does

not wish to include language which

could be interpreted to include investorowned water transmission and

distribution mains which are rightfully

classified as utilities. The Board notes

that this definition does not limit in any

way the duty of an operator to provide

pumping equipment and connecting

piping * * *’’ (28 Pa.B. 2767). Since the

federal definition of ‘‘drinking, domestic

or residential water supply’’ includes

‘‘any appurtenant delivery system,’’ we

asked Pennsylvania to clarify what is

meant by ‘‘connecting piping’’ and

‘‘investor-owned water transmission

and distribution mains which are

rightfully classified as utilities’ in our

letter dated June 21, 1999. We were

concerned about how the Board’s

intention not to protect investor-owned

water transmission and distribution

mains, which are rightfully classified as

utilities, would affect the replacement of

appurtenant delivery systems protected

under EPAct.

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PADEP replied that the preamble

discussion was made to illustrate the

difference between connections from a

well or spring to a residence and

connections made to a water main that

is part of a public water supply system.

Connections from a well or spring are

permanent affixed appurtenant

structures that must be repaired by the

mine operator if damaged. PADEP

further noted that damage to a water

main and that part of the connecting

piping that is owned by the water

company would be covered under its

regulation at 25 Pa. Code 89.142a(g)

relating to protection of utilities. In this

case, the damage is likely to be repaired

by the water company pursuant to an

agreement with the mine operator.

PADEP concluded that if the property

owner owns the connecting piping, it

would be regarded as a permanently

affixed appurtenant structure, which the

mine operator would be required to

repair.

Based on the preamble language of the

Pennsylvania Bulletin and its

explanation addressed to our concerns,

we find Pennsylvania’s definition of

water supply no less effective than the

federal regulation. The Director is

approving this section.

Section 5.1(b) (52 P.S. 1406.5a(b)).

This section indicates an operator is not

liable for restoration or replacement of

a water supply if a landowner’s claim of

contamination, diminution or

interruption is made more than two

years after the supply was affected. In

our letter to Pennsylvania dated June 23,

2000, we noted that EPAct provides that

an operator is responsible for restoration

or replacement of all water supplies

used for domestic, drinking or

residential use. We noted that the

proposed changes to the Pennsylvania

program are not as effective as the

corresponding federal regulations

because some water supplies that would

be protected under EPAct may be

excluded from protection simply

because a user does not file a claim

within two years. The federal

regulations require a permittee to meet

all applicable performance standards

during the permit term, including the

replacement of water.

In its letter to us dated July 14, 2000,

Pennsylvania noted that the two-year

time limit for reporting water supply

impacts is explicitly stated in BMSLCA.

Pennsylvania has observed no cases to

date where this limitation has been used

as a basis for denying water supply

restoration or replacement.

Additionally, Pennsylvania noted that

since federal SMCRA has no statute of

limitations, OSM cannot conclude

Pennsylvania’s provisions are less

effective than the federal regulations.

Pennsylvania asserts that when a federal

statute contains no limitation

provisions, the most appropriate statute

of limitations provided by state law

should be applied unless there is a

relevant federal statute of limitations or

the state law would frustrate or interfere

with the implementation of national

policies. Pennsylvania cited a court case

(Sierra Club v. Chevron U.S.A., Inc., 834

F.2d 1517, 1521 (9th Cir. 1987)) that it

believes to be relevant to its position.

Pennsylvania further states that since

it notifies property owners above

underground mines of their rights and

the mine operator’s obligations should

underground mining adversely affect

their water supplies, that people are

unlikely to make do without water for

two years without making a claim.

Pennsylvania believes that this

approach serves to ensure that water

supply claims will be filed before the

statute of limitations expires, which will

effectively implement the national

policy of requiring underground mine

operators to address these impacts.

Finally, Pennsylvania noted that this

section of BMSLCA is not contrary to 30

CFR 700.11(d) because that section of

the federal regulations is purely

discretionary and not required to be part

of a state program. Section 700.11(d)

authorizes, but does not require,

regulatory authorities to terminate

jurisdiction over the reclaimed site of a

completed surface coal mining and

reclamation operation. Federal law

defines the term ‘‘surface coal mining

and reclamation operations’’ as surface

coal mining operations and all activities

necessary or incidental to the

reclamation of surface coal mining

operations. The term ‘‘surface coal

mining operations’’ is interpreted by

OSM to not include subsidence, etc.

resulting from underground coal

mining. Consequently, water supplies

affected by underground mining as well

as restoration or replacement of such

water supplies are not activities subject

to 700.11(d).

The Director is not approving this

portion of the BMSLCA for several

reasons. First, even though there have

been no cases reported to date where

this provision has been used to deny

restoration or replacement of affected

supplies, it does not mean that it will

not happen. If this provision were ever

used to deny coverage that would

otherwise have been provided under

federal regulations, it would be less

effective than the federal requirements.

Second, we disagree that the Ninth

Circuit case cited by Pennsylvania is

applicable. The proposition held by the

court of appeals and cited by

Pennsylvania states that when a federal

statute contains no limitations

provisions, an applicable state statute of

limitations should be applied, unless

there is an analogous federal statute of

limitations, or the state law would

frustrate or interfere with national

policies. The Ninth Circuit case is the

general rule applicable to litigation

involving private parties. However, this

general rule and its exceptions do not

control government actions brought to

vindicate public interests. See, Dole v.

Local 427, International Union of

Electrical, Radio and Machine Workers,

894 F.2d 607 (3d Cir. 1990). The general

rule that applies to government actions

is that ‘‘no statute of limitations will be

applied in civil actions brought by the

Government, unless Congress explicitly

imposes such time limitations.’’ Dole,

894 F.2d at 610. The court of appeals in

Dole held that no statute of limitations

applies to the government so long as a

public purpose is served by its action.

While section 5.1(b) (52 P.S. 1406.5a(b))

of BMSLCA will benefit a private

individual, this is no different than the

situation in Dole, where the Department

of Labor sued to enforce individual and

public rights. The fact that a public suit

may benefit a private individual does

not change the application of the

general rule for government actions.

Under the provisions of the BMSCLA, it

will be Pennsylvania that will enforce

the requirement that the operator

replace an affected water supply. The

requirement to replace a water supply

not only serves a private purpose, it also

serves a public purpose as well. The

replacement requirement not only

protects the current owner but also his

or her successor and the community by

preserving property values. 60 FR at

16727.

Further, a time limit on water claims

is adverse to the general scheme of

SMCRA. For example, this section

would limit Pennsylvania’s ability to

take enforcement actions and would

interfere with the administrative

methods established by sections 517

and 521 of SMCRA since it could be

difficult to determine when the supply

was initially affected. Since every state

could have a different time period, this

section is contrary to the public policy

of section 102(a) of SMCRA that

established a nationwide program and

with section 101(g) of SMCRA. It could

also preclude some citizen suits because

in some situations a citizen wouldn’t

know that Pennsylvania wasn’t taking

action until the two years elapsed.

Additionally, if a claim for water

damage were not made within two years

from the date the supply was affected,

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67015

Pennsylvania would not consider it a

violation. Since it is not a violation, this

would prevent Pennsylvania from

holding operators responsible for

damage to a water supply.

We disagree with Pennsylvania that

this time limitation is no less effective

than the federal rules. It is contrary to

section 505(b) of SMCRA, which

prohibits any state program from having

state laws or regulations that are

inconsistent with SMCRA. The statute

of limitations would seem to insure that

at some point a water supply would not

be restored or replaced. Failure to

restore or replace a water supply is in

direct contrast with the purposes of

EPAct and the federal regulations that

require, without a time limit, the

restoration or replacement of these

supplies. Finally, since our decision is

based on the above, we feel it is

unnecessary to address Pennsylvania’s

interpretation of the federal regulations

describing termination of jurisdiction.

As a result, the Director is not approving

section 5.1(b) (52 P.S. 1406.5a(b)) of the

BMSLCA.

Section 5.2(a)(1) (52 P.S.

1406.5b(a)(1). This section requires a

landowner to contact the operator with

a claim of water loss or contamination.

The section also requires the operator to

investigate such claims with reasonable

diligence. In our letter to Pennsylvania

of June 21, 1999, we noted that this

section appeared to be less effective

than the federal regulations because the

federal rules and statute do not require

the landowner or water user to first

contact the operator. We asked

Pennsylvania to explain how this

requirement affects a landowner’s or

water user’s rights or PADEP’s

responsibilities to initiate action under

citizen complaint procedures.

In its response of June 1, 2000, PADEP

indicated that requiring the landowner

to contact the operator has not been a

problem during the first five years of the

program’s implementation.

Pennsylvania believes that requiring the

landowner to contact the operator saves

time by allowing the owners to describe

their problem to the operator and to

schedule access to their property for the

operator.

The proposal by Pennsylvania to

require landowners to notify operators

with a claim of water loss was carefully

considered by the Director relative to

the requirements for water supply

replacement (30 CFR 817.41(j)) and the

requirements for addressing complaints

by citizens (30 CFR part 842). It is

important to note that under both the

federal and the proposed Pennsylvania

requirements, underground mining that

results in the contamination,

diminution, or interruption of a water

supply is not prohibited. Once a water

supply is affected, the federal

requirements require prompt

replacement while Pennsylvania’s

proposed requirements allow operators

to delay permanent replacement for up

to at least three years. Specifically at

issue under section 5.2(a)(1) (52 P.S.

1406.5b(a)(1)) of the Pennsylvania

statute is whether the requirement for

landowners to notify operators with a

claim of water loss is no less effective

than federal requirements.

EPAct and 30 CFR 817.41(j) are silent

on how the operator is notified of the

water loss. Under section 720 of

SMCRA, permittees are responsible for

prompt replacement regardless of

whether they are contacted by property

owners or by the regulatory authority in

cases where the property owner failed to

do so. Under section 5.2(a)(1) (52 P.S.

1406.5b(a)(1)) of the BMSLCA,

Pennsylvania has elected to establish a

water loss notification procedure that

requires the property owner to contact

the operator. The section also requires

that the operator shall, with reasonable

diligence, investigate the loss. The

proposed changes to the Pennsylvania

program are silent on any procedures

that will be followed in the event that

landowners choose to notify the

Department rather than the operator.

However, under section 5.2(b)(2) (52

P.S. 1406.5b(b)(2)) and 25 Pa. Code

89.146a(b), Pennsylvania conditioned

its ability to require temporary water

within 24 hours of issuance of an order

to those cases where the landowner falls

within the rebuttable presumption area

and notified the operator.

The Director finds section 5.2(a)(1)

(52 P.S. 1406.5b(a)(1)) of the BMSLCA is

not inconsistent with the requirements

of SMCRA and the federal regulations

and is approving it. The approval is

granted because even though section

5.2(b)(2) (52 P.S. 1406.5b(b)(2)) and 25

Pa. Code 89.146a(b) act to limit property

owner access to the 24-hour temporary

supply standard under section 5.2(a)(2)

(52 P.S. 1406.5b(a)(2)), the Director’s

required amendment of section 5.1(a)(1)

(52 P.S. 1406.5a(a)(1)) of the BMSLCA

will insure the prompt replacement of

all adversely affected water supplies

(see required amendment discussion

under section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)). As a consequence,

property owners that do not directly

notify the operator may not receive a

temporary supply within 24 hours

pursuant to section 5.2(a)(2) (52 P.S.

1406.5b(a)(2)). However, they will be

guaranteed a prompt replacement

consistent with EPAct because of the

amendment required by the Director at

section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)).

Section 5.2(a)(2) (52 P.S.

1406.5b(a)(2)). This section requires

operators to provide a temporary water

supply to landowners with water supply

problems within the rebuttable

presumption area within 24 hours.

However, this section does not address

temporary water supply requirements

for those landowners whose water

supplies are outside the presumption

area. The federal rules require all

protected water supplies to be promptly

replaced on both a temporary and

permanent basis, regardless of location.

Pennsylvania’s response to OSM’s

issue letter of June 21, 1999, stated (see

finding for 25 Pa. Code 89.145a(e)(1))

that section 5.2 of the BMSLCA

provided for temporary water

replacement if the affected water supply

is outside the rebuttable presumption

area. Pursuant to 5.2, the operator’s

responsibility does not begin until after

the PADEP issues an order. This is

contrary to SMCRA and the federal

regulations that indicate there is an

obligation on the permittee to replace

water on a temporary and permanent

basis before there is enforcement by the

regulatory authority (see 720(a)(2) of

SMCRA and 30 CFR 817.41(j)). As a

condition of a permit, a permittee must

comply with all the conditions of the

permit, all applicable performance

standards and the requirements of the

regulatory program (see 30 CFR

773.17(c)). The requirement to promptly

replace protected water supplies is a

performance standard. Once the

operator is notified of the water problem

(in Pennsylvania, by the landowner or

the water user), the operator is obligated

to replace the water. This occurs before

there is enforcement by the regulatory

authority. Enforcement by the regulatory

authority commences when there is a

violation of the statute, regulations, and/

or applicable program. Accordingly, the

Director is approving section 5.2(a)(2)

(52 P.S. 1406.5b(a)(2)) for those water

supplies within the rebuttable

presumption area that qualify for the 24-

hour temporary supply replacement

standard because this portion of the

statute is consistent with the federal

regulations at 30 CFR 701.5 and

817.41(j) that require prompt

replacement of water supplies and with

30 CFR 773.17(c). However, because

there is no requirement in BMSLCA to

provide temporary water in a prompt

manner for those water supplies that lie

outside the rebuttable presumption area,

or otherwise fail to qualify for the 24-

hour temporary supply replacement

standard, the Director is requiring

Pennsylvania to amend section 5.1(a)(1)

67016 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

(52 P.S. 1406.5a(a)(1)) requiring the

prompt replacement of water supplies,

including temporary water, to all

landowners whose water supply has

been impacted by underground mining.

Section 5.2(a)(3) (52 P.S.

1406.5b(a)(3)). This section provides

that if a temporary water supply is not

provided within 24 hours, PADEP, after

notice by the landowner or water user,

shall order the operator to provide

temporary water within 24 hours. The

operator shall notify the Department of

any claim of contamination, diminution

or interruption made to it by a

landowner or water user and its

disposition. This section only applies to

those supplies falling within the

rebuttable presumption zone as required

by section 5.2(c) (52 P.S. 1406.5b(c)).

The Director is approving this section

because it provides the Department with

specific authority to issue orders to

require temporary water within 24

hours for those supplies that meet the

requirements of section 5.2(c) (52 P.S.

1406.5b(c)), and where the operator has

refused to provide the supply. This is

consistent with both 30 CFR 817.41(j),

which requires prompt replacement of

water supplies, and the enforcement

procedures of Part 843. Once an

operator refuses to replace a protected

water supply, a violation has occurred

and the regulatory authority can then

enforce this replacement requirement

with an order. For those supplies that

meet section 5.2(c) (52 P.S. 1406.5b(c)),

this enforcement authority will assist

the Department in securing prompt

replacement. It should be noted that the

Director is requiring Pennsylvania to

amend section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)) to require prompt

replacement of all supplies covered by

EPAct. In requiring the amended

language under section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)), the Director expects that

those supplies that do not meet the

conditions of section 5.2(a)(2) and (a)(3)

(52 P.S. 1406.5b(a)(2) and (3)) will be

addressed by the Department consistent

with chapter 86, subchapter H

(Enforcement & Inspection), which

requires citation, and abatement, of

violations within a reasonable time.

Section 5.2(b)(1) (52 P.S.

1406.5b(b)(1)). This section provides

that a landowner may notify the

Department if an alternate source has

not been provided or if an operator

ceases to provide an alternate source

and requests an investigation be

conducted. While there is no direct

federal counterpart to this section, the

Director is approving it because it is not

inconsistent with the citizen complaint

procedures in the approved

Pennsylvania program (see 49 FR

10253–58) or 30 CFR 842.12, which

allow citizens to bring their complaints

to the regulatory authority.

Section 5.2(b)(2) (52 P.S.

1406.5b(b)(2)). This section provides

that within 10 days of notification the

Department will investigate claims and

within 45 days make a determination if

the operator affected the water supply.

The Department can then issue orders

for replacement. This section also

allows three years to pass before orders

requiring a permanent water supply are

issued. In our letter to Pennsylvania

dated June 21, 1999, we indicated that

this section appeared to be less effective

than the federal rules because it does

not require that water supplies be

promptly replaced and that it would

allow three years to elapse before the

Department issues an order to provide a

permanent alternate source of water. We

further noted that three years is

inconsistent with federal SMCRA

720(a)(2) requiring prompt replacement

of drinking, domestic or residential

water supplies.

In their letter to us dated June 1, 2000,

Pennsylvania indicated that the time

periods of 5.2(b)(2) (52 P.S.

1406.5b(b)(2)) relate to PADEP actions.

Pennsylvania noted that this section

only pertains to situations where mine

operators are apparently failing to fulfill

their obligations. In these cases, PADEP

may be required to establish proof of

causation and operator liability before

taking appropriate action. Pennsylvania

believes this section of BMSLCA is more

stringent because it requires the

regulatory authority to act within

specified time periods while the federal

regulations set no deadlines for follow

up action by the regulatory authority.

With regard to the three-year issue,

Pennsylvania responded that the threeyear period is consistent with scientific

literature that indicates if a water

supply is going to recover it will usually

do so within three years of impact.

Finally, Pennsylvania noted that, in

some cases, an attempt at permanent

restoration in a shorter time may not be

prudent because of the potential

impacts of additional mining that will

take place in the future.

As we stated in the preamble to the

federal EPAct rules, ‘‘existing citizen

complaint procedures are adequate and

appropriate to address surface owner

complaints of subsidence damage.’’ (60

FR at 16735). While this statement was

made in the context of damage to

structures, it applies equally to water

loss complaints. The proposal by

Pennsylvania to provide a water loss

claims investigation procedure for

affected property owners was carefully

considered by the Director relative to

the existing requirements for addressing

complaints by citizens under 30 CFR

Part 842. Currently, the approved

Pennsylvania program regarding citizen

complaint investigations and

enforcement provides that if an

inspection is made, the Department will

notify the citizen within 10 days of

completion of the inspection of the

results. If no inspection is made, the

Department will notify the citizen

within 15 days of receipt of the

complaint. Pennsylvania’s approved

citizen complaint rules are consistent

with 30 CFR 842.12 and allow latitude

in determining what constitutes the

point at which an inspection is

complete to allow for the collection of

necessary data (see 49 FR 10253–58).

The Director recognizes that, in certain

cases, citizen complaint inspection

duties could be completed prior to the

45 days specified in section 5.2(b)(2) (52

P.S. 1406.5b(b)(2)). Under existing

citizen complaint rules, once an

inspection is completed, Pennsylvania

has 10 days to describe its enforcement

action or lack thereof. However, under

the proposed provision, the completion

of inspection duties may occur in a

short time, e.g. two days, but

Pennsylvania would have longer than

10 days to notify the citizen of its

inspection results, e.g. 43 days. This is

inconsistent with Pennsylvania’s

existing rules and the federal rules

regarding time requirements for

responding to citizen complaints. To be

consistent with the federal rules,

Pennsylvania must notify the citizen of

its decision within 10 days of

completing all the inspection duties.

Therefore, the Director is approving this

portion of section 5.2(b)(2) (52 P.S.

1406.5b(b)(2)) to the extent that it is

consistent with, or more timely than, its

citizen complaint procedures and is

requiring Pennsylvania to amend its

program to the extent the time frames

are longer than its citizen complaint

procedures.

The Director is not approving the

portion of this provision that states

‘‘* * * where the contamination,

diminution or interruption does not

abate within three years of the date on

which the supply was adversely

affected.’’ As noted in the preamble to

the federal rules, a permittee should

connect the user to a satisfactory

permanent water supply within two

years of notification (60 FR at 16727).

Pennsylvania makes reference to

technical guidance that supports its

standard that a permanent water supply

should be replaced within three years.

However, Pennsylvania failed to submit

such technical information and OSM

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67017

knows of no technical guidance to

support Pennsylvania’s assertion.

Section 5.2(b)(2) (52 P.S. 1406.5b(b)(2))

allows three years to elapse without

issuance of an order requiring

permanent restoration or replacement.

The process of ordering a permanent

restoration or replacement does not start

until the three years expired. This

means that permanent restoration or

replacement could go well beyond three

years, which is clearly not envisioned

by OSM in drafting the federal rules.

Pennsylvania’s statute delays permanent

replacement by up to 50% over the

federal guidelines. Allowing an operator

up to three years to replace a water

supply is not a ‘‘prompt’’ replacement,

thus it is less stringent than 720(a)(2) of

SMCRA.

Section 5.2(c) (52 P.S. 1406.5b(c)).

This section provides that an

underground mine operator is presumed

to be responsible for contamination,

diminution or interruption of water

supplies within a rebuttable

presumption area. The operator may

successfully rebut the presumption if

the landowner denied the operator

access to the property to conduct a

premining survey of the water supply.

There is no federal regulation that

prohibits the state from enacting a

rebuttable presumption for water. In

fact, by finding that operators are

presumed responsible for replacement

of water supplies within the

presumption area, this portion of the

statute will assist in insuring that

operators are promptly informed of their

obligation to replace affected supplies

and will assure they promptly provide

emergency and temporary water. Thus,

the Director finds that this portion of the

program is in accordance with

§ 720(a)(2) of SMCRA, which requires

the prompt replacement of a protected

water supply.

Section 5.2(d) (52 P.S. 1406.5b(d)).

The full text of the language of this

section is as follows.

Unless the presumption contained in

subsection (c) applies, a landowner, the

department or any affected user asserting

contamination, diminution or interruption

shall have the burden to affirmatively prove

that underground mining activity caused the

contamination, diminution or interruption.

Wherever a mine operator, upon request, has

been denied access to conduct a premining

survey and the mine operator thereafter

served notice upon the landowner by

certified mail or personal service, which

notice identified the rights established by

sections 5.1 and 5.3 and this section, was

denied access and the landowner failed to

provide or authorize access within ten days

after receipt thereof, then such affirmative

proof shall include premining baseline data,

provided by the landowner or the

department, relative to the affected water

supply.

The amendment provides that the

Department, or a landowner outside the

rebuttable presumption area, has the

burden of proof in claiming that a water

supply has been contaminated,

interrupted or diminished. This is

consistent with enforcement actions

where the regulatory authority has the

initial burden, so the Director is

approving this language. However, the

last sentence of this portion of the

amendment requires that the burden of

proof for landowners who deny access

to an operator to conduct a premining

survey, must include premining

baseline data as supplied by the

landowner or the Department. The

portion of the amendment requiring

premining baseline data as a condition

of establishing burden of proof makes it

less effective than the federal

regulations at 30 CFR 817.41(j). This

section of the federal regulations

requires the baseline hydrologic

information required in 30 CFR 780.21

and 784.14 to be used to determine the

impact of mining activities upon the

water supply. Such information is to be

supplied by the applicant. The proposed

amendment requires the Department, or

landowner, to provide data that is to be

supplied by the operator in the permit

application. Therefore, the following

portion of the amendment is less

effective than the federal regulations:

‘‘Wherever a mine operator, upon

request, has been denied access to

conduct a premining survey and the

mine operator thereafter served notice

upon the landowner by certified mail or

personal service, which notice

identified the rights established by

sections 5.1 and 5.3 and this section,

was denied access and the landowner

failed to provide or authorize access

within 10 days after receipt thereof,

then such affirmative proof shall

include premining baseline data,

provided by the landowner or the

Department, relative to the affected

water supply.’’ The Director is not

approving this language.

Section 5.2(e)(1) (52 P.S.

1406.5b(e)(1)). This section provides

that a mine operator can be relieved of

liability for affecting a public or private

water supply when the contamination,

diminution or interruption of the supply

existed prior to the mining activity.

There is no direct federal counterpart to

this provision. However, the federal

definition of ‘‘replacement of water

supply’’ at 30 CFR 701.5, requires the

replacement of protected water supplies

whenever the supplies were affected by

coal mining operations. If all the

contamination, diminution or

interruption existed prior to the start of

coal mining operations, then the supply

was not affected by the coal mining

operations. If additional contamination,

diminution or interruption occurred

after the start of the coal mining

operations, then the operator would

become liable for the damage caused to

the water supply by the coal mining

operations. Thus, the Director finds that

this subsection is consistent with 30

CFR 701.5 and is approving this portion

of Pennsylvania’s amendment.

Section 5.2(e)(2) (52 P.S.

1406.5b(e)(2)). This section provides

that a mine operator can be relieved of

liability for affecting a public or private

water supply when the contamination,

diminution or interruption occurred

more than three years after mining

activity occurred. In our letter of June

23, 2000, we indicated to Pennsylvania

that the statute of limitations proposed

by this section will allow water supplies

that otherwise will be protected under

federal regulations to continue to be

contaminated, diminished or

interrupted because mining occurred

more than three years prior to the onset

of water supply problems. PADEP

responded in their letter to OSM dated

July 14, 2000, that the same reasoning

applied to the statute of limitation issue

of section 5.1(b) of BMSLCA was

applicable for this section. In addition,

Pennsylvania indicated that based on

the definition of the term ‘‘underground

mining activities,’’ the obligation to

replace an affected water supply

extends from the time a water supply is

first undermined until three years after

the mine has closed and reclamation has

been completed. In essence, the period

of liability is equivalent to the liability

period under the federal regulations

which ends at the time that jurisdiction

would be terminated under the federal

program. Pennsylvania contends this

period should be sufficient to capture

virtually all water supply impacts that

occur as a result of the underground

mining activity.

The Director is not approving this

portion of the BMSLCA for several

reasons. First, even though there have

been no cases reported to date where

this provision has been used to deny

restoration or replacement of affected

supplies, it does not mean that it will

not happen. If this provision were ever

used to deny coverage that would

otherwise have been provided under

federal regulations, it would be less

effective than the federal requirements.

This provision virtually assures that at

some point in time, there will be a water

supply that would not be restored or

replaced because the landowner did not

67018 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

report the contamination, diminution or

interruption within the noted time

frame.

Second, for the reasons discussed in

our findings for section 5.1(b) (52 P.S.

1406.5a(b)), which are incorporated

herein, the Director believes this section

to be less effective. Additionally,

Pennsylvania’s three-year limit is not a

normal statute of limitations because it

is not tied to an injury. It ignores the

legislative history of analogous § 516 of

SMCRA, which acknowledges that

‘‘[s]ubsidence occurs * * * on a

random basis, at least up to 60 years

after mining.’’ H.R. Rep. No. 218, 95th

Cong., 1st Sess. 126 (1977).

Pennsylvania’s argument that the net

effect of 5.2(e)(2) is the same as the

federal termination of jurisdiction rule

is erroneous. According to

Pennsylvania, it is eliminating an

operator’s liability three years after the

mine has closed and reclamation is

completed. However, both the

termination of jurisdiction rule (30 CFR

700.11(d)) and the EPAct regulations (30

CFR §§ 701.5 and 817.41(j)) recognize

that a regulatory authority’s jurisdiction

may not end, if at all, until all the

performance standards are met. The

termination of jurisdiction rule, while

consistent with the EPAct regulations, is

not applicable since subsidence can

occur on a random basis at any time.

Thus, an operator’s liability extends

indefinitely into the future. 60 FR at

16736. With section 5.2(e)(2)

(1406.5b(e)(2)), once the three years

have passed, there is no recourse for the

landowner and no way to force an

operator to restore or replace a water

supply even though a water supply may

be affected long after the three years.

Section 5.2(e)(3) (52 P.S.

1406.5b(e)(3)). This section allows a

mine operator to be relieved of liability

for affecting a public or private water

supply when the contamination,

diminution or interruption occurred as

the result of some cause other than

mining. A commenter noted this section

could be construed as allowing an

operator who is a contributing cause of

the water loss, to escape responsibility

for a loss for which the operator shares

responsibility with another party. Based

on this comment, we asked

Pennsylvania in our letter of June 21,

1999, to provide a state Attorney

General’s opinion that the law assures

that wherever the operator is partially or

entirely responsible for the water loss,

state law imposes liability.

Pennsylvania supplied an opinion

from the Bureau of Regulatory Counsel

in its letter to us dated June 1, 2000. The

opinion indicates that in accordance

with the rules of statutory construction,

the intent of the Pennsylvania General

Assembly was to provide a remedy for

water supplies affected by underground

mining. This section is construed to

relieve an operator of responsibility to

restore or replace a water supply only

where the contamination, diminution or

interruption occurred solely as a result

of some cause other than mining. Where

mining is partly the cause of the

contamination, diminution, or

interruption the mine operator will not

be relieved of the statutory obligation to

restore or replace the affected water

supply. The Rules of Practice before the

Pennsylvania Environmental Hearing

Board also support this intention.

There is no direct federal counterpart

to this provision. However, the federal

definition of ‘‘replacement of water

supply’’ at 30 CFR 701.5, requires the

replacement, etc. of protected water

supplies whenever the supplies were

affected by coal mining operations.

Therefore, this section, as explained by

the Attorney General’s opinion, is

consistent with the federal definition.

The Director finds Pennsylvania’s

explanation sufficiently responds to the

commenter’s concerns, and is approving

this portion of the amendment.

Section 5.2(f) (52 P.S. 1406.5b(f)).

This section requires operators who

obtain water samples in a premining or

postmining survey to use a certified

laboratory to analyze such samples. The

operator must submit copies of the

results of such analysis to the

Department and to the landowner

within 30 days of their receipt. Nothing

in this section will prohibit a landowner

or water user from using an

independent certified laboratory to

sample and analyze the water supply.

This provision is no less effective than

30 CFR 784.20(a)(3), which requires a

permit applicant to pay for a premining

survey of the quantity and quality of all

protected water supplies and to provide

copies of such to the property owner

and state regulatory authority. The

Director is approving this portion of the

amendment.

Section 5.2(g) (52 P.S. 1406.5b(g)).

This section indicates that if an affected

water supply is not restored or replaced

within three years an operator may be

relieved of responsibility for

replacement or restoration of a water

supply by (1) purchase of the property,

or (2) making a one-time payment equal

to the difference between the property’s

fair market value before the time the

water supply was affected and the time

the payment was made. In our letter to

Pennsylvania dated June 21, 1999, we

indicated that this section appears to be

less effective than the federal

regulations because EPAct has no

provisions for relieving an operator of

responsibility for water restoration or

replacement. EPAct also does not

provide for compensation in lieu of

replacement or restoration.

In its response of June 1, 2000,

Pennsylvania wrote that it may be cost

prohibitive to restore or replace a water

supply. This section provides the

landowner the option of agreeing to

compensation to satisfy the mine

operator’s obligation to restore or

replace the affected water supply.

Pennsylvania believes that by affording

landowners and water users monetary

compensation in situations where it is

not reasonably possible to afford them

an equitable remedy, its program is

consistent with federal law.

The Director is not approving this

portion of the BMSLCA because it is

less stringent than section 720 of

SMCRA, which requires the prompt

replacement of a protected water

supply. The preamble to the federal

regulations at 30 CFR 817.41(j)

implementing 720 of SMCRA states:

A commenter recommended that

compensation be available as an option for

those limited circumstances where an

impacted supply can’t be restored. The

commenter went on to note that Congress, in

enacting the Energy Policy Act, clearly noted

that these provisions were not to prohibit, or

interrupt underground coal mining

operations. Without the compensation

option, the commenter asserted that

operations would be forced to cease

operating if they couldn’t replace the water

supplies. OSM does not agree. The terms of

the Energy Policy Act unequivocally require

replacement. Further, OSM does not

anticipate that underground mining

operations will be unable to comply with this

statutory mandate. For example, if the

permittee is unable to restore a spring or

aquifer, the permittee should still be able to

provide water from an alternative source,

such as a public water supply, or by pipeline

from another location. 60 FR at 16733

(emphasis added).

Clearly both SMCRA and the federal

regulations require restoration, or

replacement, and thus compensation in

lieu of restoration or replacement is not

an option.

Section 5.2(h) (52 P.S. 1406.5b(h)).

This section allows a landowner to

submit a written request asking PADEP

to review an operator’s finding that a

water supply cannot reasonably be

restored or that a permanent alternate

source cannot reasonably be provided.

In response to the request, the

Department will issue an advisory

opinion on the validity of the claim

within 60 days. In our letter to

Pennsylvania dated June 21, 1999, we

indicated that this section appears to be

less effective than the federal

regulations because it allows a finding

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67019

that a permanent alternate source

cannot be provided. EPAct requires a

source to be provided without

exception.

In its response of June 1, 2000,

Pennsylvania reiterated its argument in

response to our comments on section

5.2(g) of BMSLCA. Pennsylvania notes

that providing an opinion for

landowners on whether they should

proceed to elect a damage remedy, has

done nothing more than provide a

means to assure that a landowner does

not accept compensation in lieu of

‘‘equitable-type’’ replacement relief

unless it is true that a replacement water

supply cannot be reasonably provided

by the mine operator. Pennsylvania also

indicated that BMSLCA addresses a

broader array of water supplies than the

federal program. The option to

compensate represents a reasonable

policy choice that provides a flexible

approach to the water supply

replacement obligation of underground

operators. Finally, Pennsylvania noted

that § 720 of federal SMCRA provides

that the water supply replacement

obligation shall not be construed to

prohibit or interrupt underground

mining. It is entirely possible

underground mining conducted under

the federal program may result in

impacts to water supplies that cannot

reasonably be replaced. In these

situations the regulatory authority

would be faced with accepting some

alternative type of settlement that is

reasonable and equitable to the mine

operator and landowner.

As noted in the Director’s decision on

section 5.2(g) (52 P.S. 1406.5(b)(g)) of

the BMSLCA, SMCRA and the federal

regulations require the replacement or

restoration of water supplies without

exception. The Director is not approving

this portion of the BMSLCA because it

is connected with section 5.2(g) (52 P.S.

1406.5(b)(g)) that allows compensation

in lieu of replacement or restoration.

Section 5.2(h) (52 P.S. 1406.5(b)(h)) is

not self-sustaining and is unenforceable

without section 5.2(g) (52 P.S.

1406.5(b)(g)). Therefore, it is

inconsistent with the requirements of

SMCRA and the federal regulations.

Section 5.2(i) (52 P.S. 1406.5b(i)). This

section defines the term ‘‘permanent

alternate source’’ to include any well,

spring, municipal water supply system

or other supply approved by the

Department which is adequate in

quantity, quality and of reasonable cost

to serve the premining uses of the

affected water supply. In our letter to

Pennsylvania dated June 21, 1999, we

indicated that this section appears to be

less effective than the federal rules

because it bases the adequacy of a

permanent alternate source of water on

premining uses of the water supply

rather than the premining quality and

quantity and that the reasonable cost

provision of this section makes it appear

to be less effective than federal

regulations which require replacement

without regard to cost.

In its response to us of June 1, 2000,

Pennsylvania noted that our comments

were an incorrect characterization of the

statutory provision. The requirement

that a replacement water supply must be

of reasonable cost is intended to protect

landowners and water users from being

forced to accept water supplies that are

unreasonably expensive to operate or

maintain. Replacement water supplies

with high costs to operate or maintain

would only be acceptable if the mine

operator provided for payment of the

high costs.

The Director is not approving the

portion of this provision that requires

permanent alternate replacement

sources to be of reasonable cost. The

definition of the term ‘‘replacement of

water supply’’ as found in the federal

regulations at 30 CFR 701.5 indicates

that replacement includes payment of

operation and maintenance costs in

excess of customary and reasonable

delivery costs of premining water

supplies. Pennsylvania’s argument that

the requirement that a replacement

water supply must be of reasonable cost

is intended to protect landowners is not

tenable because the federal rules require

operators to assume the operation and

maintenance costs of the replacement

delivery systems if they are ‘‘beyond

those that are customary and reasonable

for the premining supply.’’ 60 FR at

16726. Therefore, the Director is not

approving the phrase ‘‘and of reasonable

cost’’ in this section. However, the

Director is approving the remaining

portion of this section. For a more

complete discussion of the Director’s

decision regarding quality and quantity

standards for replacement or restoration

of water supplies, please see the

Director’s findings for sections 5.1(a)(1)

and (a)(2) (52 P.S. 1406.5a(a)(1) and

(a)(2)), which are incorporated into this

finding.

Section 5.2(j) (52 P.S. 1406.5b(j)). This

section requires an operator to describe

how water supplies will be replaced.

This section also provides that the

Department cannot require a mine

operator to provide a replacement water

supply prior to mining as a condition of

securing a permit to conduct

underground mining. There is no direct

federal counterpart to this section. The

Director finds that this portion of the

amendment is in accordance with that

portion of 720(a)(2) of SMCRA which

states that ‘‘[n]othing in this section

shall be construed to prohibit or

interrupt underground coal mining

operations.’’ Therefore, the Director

approves this portion of the

amendment.

Section 5.2(k) (52 P.S. 1406.5b(k)).

This section allows any landowner,

water user, or mine operator, aggrieved

by an order or determination of the

department issued under this section,

the right to appeal the action to the

Environmental Hearing Board within 30

days of receipt of the order. This section

allows an appeal right that is found

within numerous other sections of

Pennsylvania’s approved program and

therefore is no less effective than the

federal regulations at 30 CFR 843.16

(implementing 30 CFR 840.13). The

Director approves this section.

Section 5.3(a) (52 P.S. 1406.5c(a)).

This section provides that the operator

and the landowner may enter into an

agreement that establishes the manner

and means by which an affected supply

will be restored or an alternative supply

will be provided or providing

compensation for the affected water

supply. It also lists what conditions

must first be met before the operator

will be released from liability. Finally,

it prohibits double compensation to the

landowner. In our letter of June 21,

1999, to Pennsylvania, we noted that

EPAct does not allow compensation for

contamination, loss or diminution of

water supplies in lieu of replacement. In

its response of June 1, 2000,

Pennsylvania noted these concerns were

the same that we noted in sections 5.2(g)

and 5.2(g)(1). Pennsylvania’s response

for this section is the same as in those

sections. In addition, Pennsylvania

noted that the decision in National

Mining Assoc. v. U.S. Department of the

Interior, 172 F.3d 906 (D.C. Cir. 1999),

recognizes the legitimacy of voluntary

agreements for damages under the

federal regulatory program.

The Director is approving this

provision to the extent that the

agreement to replace a water supply or

provide an alternative water supply

meets the requirements established in

the federal definition of ‘‘Replacement

of Water Supply’’ found at 30 CFR

701.5. The Director is not approving

agreements that provide for replacement

of an alternate supply of water to the

extent that water supply will not meet

the requirements of the federal

definition.

The Director is also not approving this

provision to the extent that it allows

compensation in lieu of restoration or

replacement of affected water supplies.

The federal rules do not allow operators

and landowners to enter into voluntary

67020 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

agreements for compensation in lieu of

restoration or replacement of affected

water supplies. As previously noted, in

the Director’s Finding for section 5.2(g),

which is incorporated herein, SMCRA

and the federal rules require restoration

or replacement. The terms of EPAct

unequivocally require replacement. 60

FR at 16733 (emphasis added).

Therefore, this is less effective than

SMCRA and the federal rules. The

Director would note that Pennsylvania’s

reliance on the National Mining

Association decision is misplaced. The

voluntary agreements that are discussed

in the court decision are compensation

agreements for subsidence damages to

any noncommercial building or

occupied residential dwelling. The

opinion does not extend or recognize

compensation agreements for damages

to water supplies.

Section 5.3(b) (52 P.S. 1406.5c(b)).

This section provides that any

agreement made under section 5.3(a) (52

P.S. 1406.5c(a)) must be included in

every deed for conveyance of the

property covered by the agreement. The

Director is not approving this provision

to the extent that section 5.3(a) (52 P.S.

1406.5c(a)) has not been approved and

hence there will be no agreements

providing for compensation in lieu of

water supply replacement or restoration.

Therefore, section 5.3(b) (52 P.S.

1406.5c(b)) is inconsistent with the

requirements of SMCRA and the federal

regulations to the extent that section

5.3(a) (52 P.S. 1406.5c(a)) is less

effective.

Section 5.3(c) (52 P.S. 1406.5c(c)).

This section allows a landowner or

water user who claims contamination,

diminution or interruption of a water

supply to seek any other remedy that

may be provided at law or in equity.

The section further indicates that in any

proceedings in pursuit of remedies other

than provided in this Act, the

provisions of this act shall not apply

and the party or parties against whom

liability is sought to be imposed may

assert in defense any rights or waivers

arising from provisions contained in

deeds, leases or agreements pertaining

to mining rights or coal ownership on

the property in question.

In our letter of June 21, 1999, we

asked Pennsylvania to clarify the intent

of this section. In particular we wanted

to know what was meant by other

remedies as used in this section, and if

this section allows an operator to assert

rights that afford lesser protection than

is provided by EPAct.

In its response of June 1, 2000,

Pennsylvania indicated that the General

Assembly appeared to want to preserve

any remedy a landowner or water user

had under existing law covering adverse

effects to a water supply caused by

underground mining. This section gives

the landowner or water user the option

of pursuing the remedies provided by

BMSLCA for water loss, contamination

or diminution or pursuing the remedies

available at common law or pursuing

the remedies available under federal

law. Pennsylvania concluded by noting

that a mine operator could only assert

rights that afford lesser protection than

is provided by EPAct if the water user

elects to pursue a common law remedy

and the mine operator possesses such

rights.

This section is inconsistent with

§ 720(a)(2) of SMCRA and the federal

rules to the extent that any state law

negates the requirements of, or provides

less protection than, EPAct. In a

challenge to the federal rules (30 CFR

§ 817.41(j), 817.121(c)(2) and 701.5),

industry plaintiffs asserted that these

regulations interfered with state law

water rights and that the Energy Policy

Act did not preempt state law, thereby

allowing a landowner’s waiver of water

replacement. National Mining

Association v. Babbitt, Civil Action No.

95–0938 (D.D.C. May 29, 1998). The

district court agreed with OSM that the

federal rules do not interfere with state

law water rights. See also, 60 FR 16727,

16733 (March 31, 1995). The court went

on to hold that the Energy Policy Act

‘‘created federal substantive rights that

may extend beyond the protections

afforded by inconsistent or less

protective state laws . . . . Congress did

not include limitations in § 720 and

instead made the duty to replace or

repair a water supply absolute and

without exception.’’ Id. at 12 (emphasis

added). For example, any rights or

waivers found in deeds or leases or

agreements that waive or reduce the

protections of EPAct are less stringent

and not approved. However, any

Pennsylvania law that exceeds the

requirements of EPAct is in accordance

with SMCRA. Also, matters involving

property rights disputes are beyond the

scope of SMCRA (see § 507(b)(9) and

510(b)(6)(C) of SMCRA). Accordingly,

the Director is not approving this

section to the extent any state law

negates or provides less protection than

EPAct.

Section 5.4(a) (52 P.S. 1406.5d(a)).

This section requires the operator to

either repair or compensate owners for

damage to certain structures caused by

underground mining operations.

Compensation is to be made to the

owner of structures overlying, or in the

proximity of, the mine for the

reasonable cost of its repair or the

reasonable cost of its replacement where

the damage is irreparable. Section

720(a)(1) of SMCRA provides for repair

of material damage, which ‘‘shall

include rehabilitation, restoration, or

replacement of the damaged’’ structure

or dwelling or compensation in the full

amount of the decrease in value

resulting from the subsidence.

Pennsylvania’s statute, as implemented

by its regulation at 25 Pa. Code

89.142a(f)(1), states that the operator

shall fully rehabilitate, restore, replace

or compensate the owner for material

damage. The two standards for repair

are substantively identical because they

both require the operator to rehabilitate,

restore, or replace the damaged

structure. However, Pennsylvania’s

standards for compensation are different

than SMCRA’s because Pennsylvania’s

are based on the repair or replacement

costs while SMCRA’s are based on the

decrease in value. Even though the

standards are different, OSM believes

that Pennsylvania’s compensation

standard is no less stringent than

SMCRA since the standard is based on

providing the amount of funds required

to repair or fully replace the structure.

For example, in one federal enforcement

case, the construction estimate to repair

the structure significantly exceeded the

appraisal of the structure’s diminished

value. Therefore, the Director finds that

Pennsylvania’s compensation standard

is no less effective than § 720(a)(1) of

SMCRA because it provides

compensation equal to the amount

needed by a property owner to repair a

structure or to purchase, or build,

another structure.

OSM was concerned with

Pennsylvania’s use of the phrase ‘‘in the

proximity of the mine.’’ SMCRA has no

distance limitation. Accordingly, we

asked PADEP in our letter of June 21,

1999, what the phrase ‘‘in the proximity

of the mine’’ meant in regard to the

protections afforded by this section.

Pennsylvania in its response of June 1,

2000, indicated that while the term was

not defined in statute or regulation, it

understands the term to mean the

structures defined in this section do not

have to be directly above the mine

workings in order to be covered by

repair or compensation requirements,

and that the phrase recognizes the fact

that subsidence effects often extend

outward from points where coal is

extracted in a mine. Pennsylvania stated

that the phrase is not interpreted to

impose any specific distance

limitations. We find this explanation

does not place any limits on the location

of protected structures and find section

5.4(a) (52 P.S. 1406.5d(a)) no less

stringent than SMCRA.

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67021

While section 5.4(a) (52 P.S.

1406.5d(a)) is no less stringent than

SMCRA in terms of definition and

coverage of types of structures, the

Director is requiring Pennsylvania to

amend section 5.4 (52 P.S. 1406.5d) to

require the prompt repair and

compensation for those structures

protected under § 720(a)(1) of SMCRA

and 30 CFR 817.121(c)(2). The Director

is requiring this amended protection

because section 5.5 (52 P.S. 1406.5e) of

the BMSLCA, and its implementing

regulations under 25 Pa. Code 89.143a,

proposed a number of subsidence

damage investigation and enforcement

procedures that do not provide for

prompt repair of, or compensation for,

covered structures in certain situations.

In requiring the added language, the

enforcement actions requiring prompt

repair and compensation will, at a

minimum, be handled in conformance

with Chapter 86, Subchapter H

(Enforcement & Inspection), which

requires citation and abatement of

violations within a reasonable time.

Please see the Director’s findings for

sections 5.4(a)(1) through (3) (52 P.S.

1406.5d(a)(1) through (3)) for further

information.

Section 5.4(a)(1) and (a)(2) (52 P.S.

1406.5d(a)(1) and (a)(2)). These sections

provide restoration or compensation to

owners of buildings that are accessible

to the public, including commercial,

industrial or recreation buildings and

their permanently affixed structures as

well as any noncommercial buildings

customarily used by the public. The

federal rule at 30 CFR 817.121(c)(3)

requires that non-commercial buildings

must be repaired or the owner

compensated. Non-commercial building

is defined at 30 CFR 701.5 as a building

that is used as a public building or a

community or institutional building as

that term is defined in 30 CFR 761.5.

Buildings used only for commercial,

agricultural, industrial, or retail or other

commercial enterprises are not

protected in the federal rules.

While Pennsylvania’s statute protects

some buildings not protected by the

federal rules, we were concerned that

the Pennsylvania statute was not as

inclusive of buildings protected by the

federal regulations. In our letter to

Pennsylvania of June 21, 1999, we asked

for clarification. In its response to us

dated June 1, 2000, Pennsylvania

indicated that the regulations

implementing the changes to the act

define the term noncommercial building

to include any community or

institutional building covered by

definition in section 25 Pa. Code 86.101.

The definition of community or

institutional building in section 25 Pa.

Code 86.101 includes scientific and

correctional facilities and structures

used for public services. Pennsylvania

stated that its program therefore

includes all noncommercial buildings

covered under the federal program.

We find that Pennsylvania’s

explanation is reasonable and find that

the approved program does cover the

same structures as the federal definition

describes in the term ‘‘community or

institutional buildings’’ and is no less

effective than the federal rules. The

Director is approving this portion of the

amendment.

Section 5.4(a)(3) (52 P.S.

1406.5d(a)(3)). This section reads in

part:

Restoration or compensation for structures

damaged by underground mining—(a)

Whenever underground mining operations

conducted under this act cause damage to

any of the following surface buildings

overlying or in the proximity of the mine:

(3) dwellings used for human habitation

and permanently affixed appurtenant

structures or improvements in place on the

effective date of this section or on the date

of the first publication of the application for

a Mine Activity Permit or a five-year renewal

thereof for the operations in question and

within the boundary of the entire mine as

depicted in said application; * * * the

operator of such coal mine shall repair such

damage or compensate the owner of such

building for the reasonable cost of its repair

or the reasonable cost of its replacement

where the damage is irreparable.

In our letter to Pennsylvania of June 21,

1999, we noted that:

There is no federal requirement that the

structure be within the boundary of the entire

mine. Pennsylvania does not define

‘‘improvements.’’ The Black’s Law Dictionary

defines improvements as ‘‘[a] valuable

addition made to property (usually real

estate) or an amelioration in its condition,

amounting to more than mere repairs or

replacement, costing labor or capital, and

intended to enhance its value, beauty or

utility or to adapt it for new or further

purposes. Generally, buildings, but may also

include any permanent structure or other

development, such as a street, sidewalks,

sewers, utilities, etc.’’ Thus, the regulation

may be internally inconsistent since it

appears that ‘‘improvements’’ and

‘‘permanently affixed appurtenant

structures,’’ which is defined by

Pennsylvania, include some of the same

things.

In its response of June 1, 2000,

Pennsylvania noted that DEP considers

improvements to include ‘‘valuable

additions’’ that fall outside the scope of

the term permanently affixed

appurtenant structures. Pennsylvania

stated that according to the rules of

statutory construction, only

improvements must be completely

within the boundary of the mine before

the operator has a duty to repair or

compensate. Pennsylvania also declared

that only improvements must be in

place on the effective date of the

proposed regulations or on the first

publishing date of the mine permit.

The federal rules protect structures in

place at the time of mining that are

installed on, above or below, or a

combination thereof, the land surface if

that building, structure or facility is

used in connection with an occupied

residential dwelling (see 30 CFR

817.121(c)(2) and the definition of

‘‘occupied residential dwelling and

structures related thereto’’ at 30 CFR

701.5).

Pennsylvania’s protection of

structures is more limited than the

federal requirements because it requires

improvements to be in place at the time

of permit application or at the time of

the five-year renewal and within the

boundary of the mine. The federal

definition protects improvements that

were in place at the time of mining as

long as they were related to a structure.

Thus, a structure could have been built

after the permit application or five-year

renewal and still be protected at the

time of mining under the federal rules,

but not under section 5.4(a)(3) (52 P.S.

1406.5d(a)(3)) of the BMSLCA.

Additionally, this section of the

BMSLCA requires improvements to be

located within the boundary of the mine

to be protected. The federal rules do not

have a similar restriction.

The Director finds that the portion of

section 5.4(a)(3) (52 P.S. 1406.5d(a)(3))

that states ‘‘dwellings used for human

habitation and permanently affixed

appurtenant structures or

improvements’’ is no less effective than

the federal regulations and is approving

it. This portion of the amendment

provides protections similar to that

provided by the federal definition of the

term ‘‘occupied residential dwelling and

structures related thereto’’ found at 30

CFR 701.5. However, the Director has

found the following phrase in section

5.4(a)(3) (52 P.S. 1406.5d(a)(3)) to be

less effective than the federal

regulations in protecting some

structures related to residential

dwellings: ‘‘ * * * in place on the

effective date of this section or on the

date of first publication of the

application for a Mine Activity Permit

or a five-year renewal thereof for the

operations in question and within the

boundary of the entire mine as depicted

in said application.’’ The Director is not

approving this phrase. For the Director’s

findings on the term ‘‘permanently

affixed appurtenant structures’’ please

see the discussion of that term under 25

Pa. Code 89.5.

67022 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

Section 5.4(a)(4) (52 P.S.

1406.5d(a)(4)). This section provides

restoration or compensation of

agricultural structures. Pursuant to 30

CFR 817.121(c)(3), repair or

compensation for material damage to

agricultural structures is required to the

extent allowed under state law. The

Director is approving this portion of the

amendment because it provides for

protection for structures that are not

protected under the federal regulations

and is consistent with 30 CFR

817.121(c)(3).

Section 5.4(b) (52 P.S. 1406.5d(b)).

This section allows an operator to

replace an irreparably damaged

agricultural structure with a structure

satisfying the functions and purposes

served by the damaged structure before

such damage occurred—if the structure

was used for a purpose different from

that for which it was originally

constructed. Pursuant to 30 CFR

817.121(c)(3), repair or compensation

for material damage to agricultural

structures is required to the extent

allowed under state law. The Director is

approving this portion of the

amendment because it provides for

protection for structures that are not

protected under the federal regulations

and is consistent with 30 CFR

817.121(c)(3).

Section 5.4(c) (52 P.S. 1406.5d(c)).

This section indicates the operator will

not be required to repair a structure or

compensate a structure owner for

damage if the operator demonstrates the

landowner denied access to the operator

to conduct a premining survey. The

section requires operators to serve

notice on the landowner by certified

mail or by personal service of the

landowners rights established by

sections 5.4, 5.5, and 5.6. In our letter

to Pennsylvania dated June 21, 1999, we

noted that under the federal rule at 30

CFR 817.121(c)(4)(iii), denial of access

does not relieve the operator of its duty

to repair or compensate landowners for

subsidence damage. In its response to us

dated June 1, 2000, Pennsylvania noted

that:

Act 54 imposes a statutory presumption of

liability on the coal operator for structural

damages and consistent with OSM’s

rationale, a homeowner who denies access,

would preclude the regulatory agency and

the operator from determining where the

operator’s liability should begin and where it

should end.

All Pennsylvania has done with respect to

the right to assert a claim for compensation

is to condition that right; it has not denied

anyone their right to seek a repair or

compensation remedy in the event their

properties are damaged by mine subsidence.

The requirement that persons who intend to

invoke their rights to repair or compensation

allow the potentially responsible mine

operator an opportunity to inspect the

property prior to mining is a reasonable

condition and one which does not render

Pennsylvania’s program less effective.

The Director finds that section 5.4(c)

(52 P.S. 1406.5d(c)) is less effective than

the federal regulations because the

federal rules requiring repair or

compensation for damage to noncommercial buildings and dwellings

and related structures (30 CFR

812.121(c)(2)) do not provide exception

for any reason when an operator’s

underground mining operation has

caused subsidence damage.

Pennsylvania has failed to account for

information that the homeowner or the

regulatory authority possesses. It is

possible that the homeowner may hire

someone to conduct a survey. In

Pennsylvania’s scenario, the

homeowner would have no relief under

Act 54 even though he had relevant

information that showed causation. As a

result, the Director is not approving this

provision.

Additionally, in the preamble to the

March 31, 1995, federal rules on

subsidence (60 FR at 16741), OSM

discussed the effect of a landowner

denying access to a property and

concluded that in any enforcement

proceeding OSM or the regulatory

authority may take the effect of the

denial into account in determining what

weight, if any, to give to the rebuttable

presumption of causation. Even though

the federal rules concerning the

presumption were suspended, this part

of the preamble clearly indicates OSM’s

intent that enforcement actions would

proceed even if landowners denied

permission to operators to conduct

premining surveys. There are no

passages in the preamble or the

regulations that relieve operators of

their duty to repair or compensate

landowners for subsidence damage to

covered structures.

Section 5.5(a) (52 P.S. 1406.5e(a)).

This section requires owners of

buildings described in section 5.4(a) (52

P.S. 1406.5d(a)), who believe removal of

coal has caused mine subsidence

damage, to notify the operator of the

damage. In our letter to Pennsylvania

dated June 21, 1999, we noted that this

section appears to be less effective than

the federal regulations because EPAct

does not require landowners to notify

operators of damage.

In its response of June 1, 2000,

Pennsylvania noted that:

This is the same concern presented in OSM

Statutory Comment 5 regarding [BMSLCA’s]

water supply replacement provisions. The

response to that comment is also applicable

here. In making this comment, OSM is failing

to consider that in reality there has to be

interaction between the operator and the

structure owner in order to expedite the

repair/compensation process. The sooner this

interaction occurs, the sooner claim

resolution can begin. The claim resolution

procedures set forth in section 5.5 are

intended to promote settlements without

[PA]DEP involvement. [PA]DEP involvement

is intended as a ‘‘second tier’’ of protection

for the structure owner.

Similar to the issues discussed under

section 5.2(a)(1) (52 P.S. 1406.5b(a)(1))

for water loss notifications, the Director

carefully considered Pennsylvania’s

proposed requirement that landowners

notify operators with a claim of

subsidence damage. The Director

considered the proposal relative to the

requirements for subsidence damage

protection (30 CFR 817.121) and the

requirements for addressing complaints

by citizens (30 CFR part 842). As with

water loss, it is important to note that

under both the federal and the proposed

Pennsylvania requirements, material

damage resulting from underground

mining that employs planned

subsidence is not prohibited. Once

damage occurs, the federal requirements

require prompt repair or compensation,

while Pennsylvania’s proposed

requirements provide for a six-month

period where the property owner and

the permittee address the damage

without PADEP involvement.

Specifically at issue under section 5.5(a)

(52 P.S. 1406.5e(a)) is whether the

requirement for landowners to notify

operators of mine subsidence damage is

in any way less effective than federal

requirements.

EPAct and 30 CFR 817.121(c) are

silent on how the operator is notified of

structure damage. Under 720 of SMCRA,

permittees are responsible for prompt

repair or compensation regardless of

whether they are contacted by property

owners or by the regulatory authority in

cases where the property owners fail to

do so. Under section 5.5(a) (52 P.S.

1406.5e(a)) of the BMSLCA,

Pennsylvania has elected to establish a

subsidence damage notification

procedure that requires the property

owner to contact the operator. The

proposed changes to the Pennsylvania

program are silent on any procedures

that will be followed in the event that

landowners choose to notify the

Department rather than the operator.

However, under section 5.5(b) (52 P.S.

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

and 25 Pa. Code 89.143(a), Pennsylvania

established a specific procedure for

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67023

investigating and enforcing structure

repair and compensation requirements

for those landowners that provide

notification to the operator.

The Director is approving the portion

of section 5.5(a) (52 P.S. 1406.5e(a)) of

the BMSLCA that deals with

notification of the operator. Because

EPAct and the federal rules do not set

a federal standard concerning structure

damage notification, the proposed

Pennsylvania requirement that the

property owner contact the operator is

not inconsistent with SMCRA and 30

CFR 817.121(c). The Director’s required

amendment of section 5.4(a) (52 P.S.

1406.5d(a)) will insure the prompt

repair and compensation for all

structures covered by EPAct whether or

not a landowner has contacted the

operator as required by section 5.5 (52

P.S. 1406.5e) of BMSLCA or 25 Pa. Code

89.143(a).

However, the Director finds that use

of the phrase ‘‘removal of coal has

caused mine subsidence’’ when

describing suspected causes of

subsidence damage is not as effective as

SMCRA. Section 720(a) of SMCRA

provides that operators are responsible

for repairing or compensating

landowners for subsidence damages

caused by underground coal mining

operations. Underground coal mining

operations include more activities than

just the removal of coal. Consequently,

section 5.5(a) (52 P.S. 1406.5e(a)) acts to

limit the operator’s responsibility for

repair or compensation to subsidence

damage caused by coal removal. As a

result, the Director is requiring

Pennsylvania to amend section 5.5(a)

(52 P.S. 1406.5e(a)) to make it clear that

operators are responsible for subsidence

damage from underground mining

operations, not just removal of coal. As

a result of this amendment, structure

owners who suspect subsidence damage

was caused by underground coal mining

operations would report such damage to

the operator.

Section 5.5(b) (52 P.S. 1406.5e(b)).

This section provides that landowners

may file a claim with the Department if

they cannot come to terms with the

operator within six months from the

date of notice as to the cause of the

damage. This section also requires all

claims to be filed within two years of

the date damage to the building

occurred. In our letter to Pennsylvania

dated June 21, 1999, we indicated that

the portion of this section dealing with

the six-month notification period does

not appear to be as effective as the

federal regulation because it does not

require the prompt repair or

compensation of subsidence damage. In

our letter to Pennsylvania dated June 23,

2000, we indicated that the portion of

the statute requiring claims to be filed

within two years of the date damage to

the building occurs ends or limits the

Department’s responsibilities if a

written claim was filed more than two

years after the date of damage to the

building. The statute does not allow the

Department to conduct required

investigations or require operators (via

notice of violation) to promptly repair or

compensate landowners for damage to

structures protected by EPAct, and may

not be as effective as the federal

regulations. While Pennsylvania does

not have a termination of jurisdiction

rule, these provisions are contrary to the

federal rule at 30 CFR 700.11(d).

In its letter to us dated June 1, 2000,

Pennsylvania indicated that section

5.5(b) (52 P.S. 1406.5e(b)) does not

necessarily preclude the prompt

settlement of structure damage claims, it

simply gives mine operators and

structure owners six months to come to

terms on the means of settlement. With

regard to the provision requiring claims

to be filed within two years of the date

damage to the building occurs,

Pennsylvania wrote in its letter to us

dated July 14, 2000, that the limitation

only pertains to PADEP’s responsibility

to conduct an investigation and does not

release a mine operator from the

responsibility to repair or compensate

for structure damage. The statute does

not prohibit PADEP from becoming

involved in the resolution of cases that

have gone beyond the two-year claim

period. Pennsylvania further noted this

section does not end PADEP’s

responsibilities. Section 5.5(c) (52 P.S.

1406.5e(c)) requires PADEP to issue

orders directing the operator to

compensate the owner or cause repairs

to be made. Section 9 (52 P.S. 1406.9)

also authorizes the Department to issue

orders necessary to aid in enforcement

of BMSLCA, which includes the

enforcement of the operator’s obligation

to compensate the owner or to repair the

subsidence. With regard to the comment

that this provision is contrary to the

federal rule at 30 CFR 700.11(d),

Pennsylvania reiterated the argument

made in response to our comment on

section 5.1(b) (52 P.S. 1406.5a(b)).

The proposal by Pennsylvania to

provide a specific claims investigation

procedure for affected property owners

was carefully considered by the Director

relative to the existing requirements for

addressing complaints by citizens under

30 CFR part 842 and the approved

Pennsylvania program (see 49 FR

10253–58, March 20, 1984). As we

stated in the preamble to the federal

EPAct rules, ‘‘existing citizen complaint

procedures are adequate and

appropriate to address surface owner

complaints of subsidence damage.’’ (60

FR at 16735). Currently, the approved

Pennsylvania program contains a citizen

complaint investigation and

enforcement process consistent with 30

CFR part 842. That process does not

prohibit citizen complaints or limit the

ability of the Department to take

enforcement actions based on whether a

landowner has served notice to an

operator alleging damage.

Pennsylvania’s response with respect

to the six-month delay pointed out that

‘‘it simply gives mine operators and

structure owners six months to come to

terms on the means of settlement.’’ The

EPAct and implementing rules provide

sufficient flexibility to take into account

site conditions, potential repair and

compensation alternatives, and other

relevant factors to judge whether a

permittee has met the requirement to

promptly repair or compensate for

structure damage.

Additionally, section 5.5(b) (52 P.S.

1406.5e(b)) ignores the requirement of

720(a)(1) of SMCRA, which requires the

prompt repair of, or compensation for

protected structures. It allows six

months to pass without operator action

even if the operators reach an early

impasse with the owners. Section 5.5(b)

(52 P.S. 1406.5e(b)) would prohibit

Pennsylvania from issuing orders to

require repair or compensation before

the six months elapsed. As noted under

Section 5.4(a) (52 P.S. 1406.5d(a)), the

Director is requiring Pennsylvania to

amend its program to require prompt

repair and compensation in all cases of

EPAct-covered structure damage. To

ensure that Pennsylvania possesses

adequate authority to issue orders

requiring the prompt repair and

compensation, regardless of whether the

structure owner has notified the

Department or the permittee, the

Director is not approving the portion of

this provision that states ‘‘ * * * within

six months of the date of the notice.’’

Additionally, the section provides

that a landowner’s right to a Department

investigation will expire after two years.

We disagree that the Ninth Circuit case

cited by Pennsylvania is applicable. The

proposition held by the court of appeals

and cited by Pennsylvania states that

when a federal statute contains no

limitations provisions, an applicable

state statute of limitations should be

applied, unless there is an analogous

federal statute of limitations, or the state

law would frustrate or interfere with

national policies. The Ninth Circuit case

is the general rule applicable to

litigation involving private parties.

However, this general rule and its

exceptions do not apply to government

67024 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

actions brought to vindicate public

interests. Dole v. Local 427,

International Union of Electrical, Radio

and Machine Workers, 894 F.2d 607 (3d

Cir. 1990). The general rule that applies

to government actions is that ‘‘no statute

of limitations will be applied in civil

actions brought by the Government,

unless Congress explicitly imposes such

time limitations.’’ Dole, 894 F.2d at 610.

The court of appeals in Dole, held that

no statute of limitations applies to the

government so long as a public purpose

is served. While section 5.5(b) (52 P.S.

1406.5e(b)) of BMSLCA may benefit a

private individual, this is no different

than the situation in Dole, where the

Department of Labor sued to enforce

individual and public rights. The fact

that a public suit may benefit a private

individual does not change the

application of the general rule for

government actions. Under the

provisions of the BMSCLA, it will be

Pennsylvania that will enforce the

requirement that the operator restore or

compensate a protected structure. The

requirement to restore a structure or

compensate its owner not only serves a

private purpose it also serves a public

purpose as well. The requirements not

only protect private structure owners

but buildings owned by the government

or that serve as a public building or a

community or institutional building.

Further, a time limit on subsidence

damage claims is adverse to the general

scheme of SMCRA. For example, this

section would limit Pennsylvania’s

ability to take enforcement actions and

would interfere with the administrative

methods established by 517 and 521 of

SMCRA since it could be difficult to

determine when the structure was

initially affected. Since every state

could have a different time period, this

section is contrary to the public policy

of § 102(a) of SMCRA, which

established a nationwide program and

with 101(g) of SMCRA. It could also

preclude some citizen suits because in

some situations, a citizen might not

know that Pennsylvania was not taking

action until the two years elapsed.

Additionally, if a request for an

investigation by Pennsylvania of

possible subsidence damage was not

made within two years from the date of

structure damage, Pennsylvania would

not consider it a violation, because

Pennsylvania would not investigate the

claim. Since it would not be a cited

violation, this would prevent

Pennsylvania from holding operators

responsible for subsidence damage to

structures.

We disagree with Pennsylvania that

this time limitation is no less effective

than the federal rules. It is contrary to

505(b) of SMCRA, which prohibits any

state program from having state laws or

regulations that are inconsistent with

SMCRA. Failure to repair or compensate

a structure owner is in direct contrast

with the purposes of EPAct and the

federal regulations that require without

a time limit, the repair or compensation

of protected structures. This is

evidenced by language in the

Congressional House report that

specifically rejected the Secretary’s

regulations originally promulgated in

1983. The 1983 regulations only

required repair or compensation of

structures to the extent allowed under

state law. H.R. Rep. No. 474, 102d

Cong., 2d Sess, pt. 8 at 132 (1992). This

provision is also contrary to citizen

complaint investigation standards.

With respect to Pennsylvania’s

characterization that the limitation only

pertains to PADEP’s responsibility to

conduct an investigation, and does not

release a mine operator from the

responsibility to repair or compensate

for structure damage, the Director

observes that the net effect will be the

same because the only entity, PADEP,

that could enforce the obligation is

prohibited from doing so. As stated in

section 5.6(c) (52 P.S. 1406.5f(c)), the

duty to repair or compensate for

subsidence damage is the sole and

exclusive remedy for such damage. If

the operator refuses to acknowledge

responsibility for repair or the amount

of compensation, and the structure

owner did not request an investigation

within two years, the owner has no

recourse because the state is prohibited

from conducting an investigation. We

also assert that Pennsylvania’s

characterization that the statute does not

prohibit PADEP from becoming

involved in the resolution of cases that

have gone beyond the two-year claim

period is misleading. First,

Pennsylvania fails to elaborate on how

this could occur. OSM interprets the

statute to mean that, if the owner asks

for an investigation within two years but

Pennsylvania’s enforcement goes

beyond two years, Pennsylvania can

continue its enforcement. If the owner

fails to ask for an investigation,

Pennsylvania is precluded from

enforcement. Finally, we disagree with

Pennsylvania’s statement that section

5.5 (52 P.S. 1406.5e) does not end

PADEP’s responsibilities because of

section 5.5(c) (52 P.S. 1406.5e(c)) of the

BMSLCA. Section 5.5(c) (52 P.S.

1406.5e(c)) is completely reliant on

section 5.5(b) (52 P.S. 1406.5e(b)).

Section 5.5(c) (52 P.S. 1406.5e(c)) states

that ‘‘[t]he department shall make an

investigation of a claim within thirty

days of receipt of the claim.’’ Section

5.5(b) (52 P.S. 1406.5e(b)) states if the

parties are unable to agree, the owner of

the building may file a claim with the

Department. Thus, the reference to

claim in 5.5(c) (52 P.S. 1406.5e(c)) refers

to the claim discussed in 5.5(b) (52 P.S.

1406.5e(b)). Section 5.5(c) (52 P.S.

1406.5e(c)) does not discuss any other

options or alternatives. Based on the

above rationale, the Director finds this

section less effective than the federal

rules and is not approving this section.

Finally, since our decision is based on

the above, we feel it is unnecessary to

address Pennsylvania’s interpretation of

the federal regulations describing

termination of jurisdiction.

Section 5.5(c) (52 P.S. 1406.5e(c)).

This section provides that the

Department will make an investigation

of damage claims within 30 days of

receipt of the claim and, within 60 days

following the investigation, make a

determination in writing whether the

damage was caused by subsidence. This

section further provides that the

Department will issue a written order

directing the operator to compensate the

structure owner or repair the damaged

structure within six months or a longer

period. In our letter to Pennsylvania

dated June 21, 1999, we indicated that

the Department’s written determination

made within 60 days of the

investigation appears to be less effective

than the citizen complaint procedures of

30 CFR 842.12(d). The federal rule

requires a response within 10 days of

the inspection. We further indicated

that if the term ‘‘written order’’ means

a notice of violation, this section does

not appear to be as effective as the

federal regulations in that six months

exceeds the total time allowed for

abatement of a notice of violation. ‘‘The

total time for abatement under a notice

of violation, including all extensions,

shall not exceed 90 days from the date

of issuance, except upon a showing

* * * [of] one or more of the

circumstances in paragraph (f) of this

section.’’ 30 CFR 843.12(c).

In its response to us dated June 1,

2000, Pennsylvania wrote that:

The 60-day period the department is

allotted to make a determination cannot be

compared with the 10-day period specified in

30 CFR 842.12(d). [This section] requires

PADEP to reach a final determination within

60 days of making an investigation, where

the federal requirement only relates to

communication with the complainant * * *.

There is nothing within 30 CFR 842.12(d)

that specifically requires OSM to take

enforcement action within the 10-day period.

[A]lso * * * 30 CFR 842.12(d) establishes no

minimum time period in which OSM must

conduct its investigation.

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67025

With regard to the term ‘‘written

order’’ as used in this section,

Pennsylvania indicated that the term

does not refer to a notice of violation,

but rather to an administrative order

directing the operator to repair or

compensate the structure owner.

As noted in the finding for section

5.2(b)(2), the preamble to the federal

EPAct rules states ‘‘existing citizen

complaint procedures are adequate and

appropriate to address surface owner

complaints of subsidence damage.’’ (60

FR at 16735). The proposal by

Pennsylvania to provide a claims

investigation procedure for affected

property owners was carefully

considered by the Director relative to

the existing requirements for addressing

complaints by citizens under 30 CFR

part 842. Currently, the approved

Pennsylvania program regarding citizen

complaint investigations and

enforcement provides that if an

inspection is made, the Department will

notify the citizen within 10 days of

completion of the inspection of the

results. If no inspection is made, the

Department will notify the citizen

within 15 days of receipt of the

complaint. Pennsylvania’s approved

citizen complaint rules are consistent

with 30 CFR 842.12 and allow latitude

in determining what constitutes the

point at which an inspection is

complete to allow for the collection of

necessary data (see 49 FR 10253–58). As

a result, citizen complaint inspection

duties could be completed prior to the

60 days specified in section 5.5(c) (52

P.S. 1406.5e(c)). Under existing citizen

complaint rules, once an inspection is

completed, Pennsylvania has 10 days to

describe its enforcement action or lack

thereof. However, under the proposed

provision, an inspection may occur in a

short time, e.g. two days, but

Pennsylvania would have longer than

10 days to notify the citizen of its

inspection results, e.g., 60 days. This is

inconsistent with Pennsylvania’s

existing rules and the federal rules

regarding time requirements for

responding to citizen complaints. To be

consistent with the federal rules,

Pennsylvania, within 10 days of

completing all the inspection duties,

must notify the citizen of its decision.

Therefore, the Director is approving this

portion of section 5.5(c) (52 P.S.

1406.5e(c)) to the extent that it is

consistent with, or more timely than,

the citizen complaint procedures and is

requiring Pennsylvania to amend its

program to the extent the time frames

are longer than the citizen complaint

procedures.

Section 5.5(c) (52 P.S. 1406.5e(c)) also

provides that if the Department found

that mining caused damage, it shall

issue an order directing the operator to

compensate or cause repairs to be made

within six months or longer. The

Director is not approving the use of an

administrative order that allows the

operator six months or longer to repair

damage or compensate landowners.

Federal regulations at 30 CFR 843.12(c)

provide that ‘‘The total time for

abatement under a notice of violation,

including all extensions, shall not

exceed 90 days from the date of

issuance, except upon a showing * * *

[of] one or more of the circumstances in

paragraph (f) of this section.’’ Because

the federal rules require Pennsylvania to

issue a notice of violation within an

abatement date of not more than 90

days, instead of an administrative order

with an abatement date of six months or

longer, the Director is not approving the

following phrase from section 5.5(c) (52

P.S. 1406.5e(c)), ‘‘ * * * within six

months or a longer period if the

department finds that the occurrence of

subsidence or subsequent damage may

occur to the same building as a result of

mining.’’ This phrase is not as effective

as the federal regulations that call for

orders with abatement dates less than 90

days except for the circumstances noted

in section 30 CFR 843.12(c).

Finally, the Director finds that

Pennsylvania’s use of the term

‘‘underground coal mining’’ when

making a damage determination is less

stringent than section 720 of SMCRA.

SMCRA requires underground coal

mining operations to comply with

requirements for damage repair or

compensation. The term ‘‘underground

coal mining operations’’ is more

expansive than Pennsylvania’s

definition of underground mining,

which is defined at 25 Pa. Code 89.5 to

be the extraction of coal. Therefore, the

Director is requiring Pennsylvania to

amend this section to insure that any

written damage determinations made by

PADEP will take into account

subsidence due to underground coal

mining operations as required by

SMCRA.

Section 5.5(d) (52 P.S. 1406.5e(d)).

This section provides that the operator

will not be liable for repairs or

compensation in an amount exceeding

the cost of replacement of the damaged

structure. The section also provides that

the occupants of a damaged structure

shall be entitled to additional payment

for reasonable actual expenses incurred

for temporary relocation and for other

actual reasonable incidental costs

agreed to by the parties or approved by

the Department. Section 720(a)(1) of

SMCRA provides for repair of material

damage, which ‘‘shall include

rehabilitation, restoration, or

replacement of the damaged’’ structure

or dwelling or compensation in the full

amount of the decrease in value

resulting from the subsidence. As

previously stated in section 5.4(a) (52

P.S. 1406.5d(a)), the cost of replacement

is no less stringent than section

720(a)(1) of SMCRA. There is no federal

counterpart to provisions for relocation

and incidental expenses provided for in

this portion of the statute. However,

because these provisions provide

additional benefits not required by the

federal regulations, the Director finds

that they are not inconsistent with the

requirements of SMCRA or the federal

regulations and is approving this

portion of the amendment.

Section 5.5(e) (52 P.S. 1406.5e(e)).

This section requires an operator to

deposit in escrow, an amount equal to

the cost of repair or compensation if the

operator appeals an order issued by the

Department. In our letter to

Pennsylvania dated June 21, 1999, we

indicated that this section appears to be

less effective than the federal

regulations because there is no

provision, in cases where the operator

has not appealed an order of the

Department, to insure that funds are

available for the repair or compensation

for damage to structures and no

financial guarantees for the restoration

of water supplies.

Pennsylvania responded in their letter

of June 1, 2000, that section 6(b) (52 P.S.

1406.6(b)) of BMSLCA authorizes

PADEP to require bonds of appropriate

amounts to ensure the applicant’s

faithful performance of mining or

mining operations, in accordance with

the provisions of sections 5, 5.4, 5.5,

and 5.6 (52 P.S. 1406.5, 1406.5d,

1406.5e, and 1406.5f). These

requirements are in addition to the

escrow requirements of section 5.5(e)

(52 P.S. 1406.5e(e)). These bonds must

be posted at the time of permit

application and will be in place to

ensure the repair of any and all

structure damage that occurs during the

term of the mining permit. Finally,

Pennsylvania noted that the

requirements to post escrow under

section 5.5(e) (52 P.S. 1406.5e(e))

functions as an additional assurance

that repairs or compensation will be

provided by mine operators.

OSM agrees that the escrow

requirements of section 5.5(e) (52 P.S.

1406.5e(e)) are separate from the

requirements of section 6(b) (52 P.S.

1406.6(b)) of BMSLCA. Section 5.5(e)

(52 P.S. 1406.5e(e)) allows an appeal

right that is found within numerous

other sections of Pennsylvania’s

approved program and is no less

67026 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

effective than the federal regulations at

30 CFR 843.16 (implementing 30 CFR

840.13). The federal rules do not require

an operator to place into escrow the cost

of repair or compensation before it can

appeal an order. Since an escrow

account will serve to protect affected

structure owners, the Director finds this

section consistent with the federal rules

and therefore, approves it.

Section 5.5(f) (52 P.S. 1406.5e(f)). This

section provides for Pennsylvania to

take enforcement action if an operator

fails to repair or compensate for

subsidence within six months or longer

period as the Department has

established or if the operator has failed

to perfect an appeal of an order. The

section further provides for payment of

the escrow deposit if an operator fails to

repair or compensate for damage after

exhausting its right of appeal.

The Director has found that the

escrow accounts provide a level of

protection beyond that of the federal

requirements and is approving that

portion of the amendment. However, the

portion of section 5.5(f) (52

P.S.1406.5(e)(f)) allowing six months or

longer to pass before the Department

takes an enforcement action is less

effective than the federal regulations at

30 CFR 843.12(c), which requires

abatement of violations within 90 days.

As stated in the finding for 5.5(c) (52

P.S. 1406.5e(c)), an operator’s failure to

repair or compensate for subsidence

damage is a violation that must be

abated within 90 days. To ensure that

Pennsylvania has the ability to enforce

the necessary requirements of EPAct

consistent with 30 CFR part 843, the

Director is not approving the portion of

section 5.5(f) (52 P.S. 1406.5e(f)) that

states: ‘‘ * * * within six months or

longer or such period as the department

has established or fail to perfect an

appeal of the department’s order

directing such repair or compensation.’’

Not approving the portion of the phrase

dealing with the six-month period will

remove an enforcement impediment to

Pennsylvania. As noted, the Director is

also not approving language in that

phrase that deals with perfecting an

appeal of the Department’s orders. This

phrase prevents Pennsylvania from

issuing a cessation order if an operator

takes an appeal, thus acting as a stay.

This provision is not as effective as the

federal regulations at 30 CFR 843.16(b),

which indicate that the filing of an

application for review and request for a

hearing cannot operate as a stay of any

notice or order.

Section 5.5(g) (52 P.S. 1406.5e(g)).

This section provides that, with the

exception of 5.5(f) (52 P.S. 1406.5e(f)),

existence of unresolved claims of

subsidence damage shall not be used by

the Department as a basis for

withholding permits from, or

suspending review of, permit

applications submitted by the mine

operator against whom such claims have

been made. In our letter to Pennsylvania

dated June 21, 1999, we asked

Pennsylvania to clarify what is meant by

the phrase ‘‘existence of unresolved

claims.’’

In response, Pennsylvania indicated

that the term is self-explanatory.

Structure damage claims often take

some time to be resolved and this

section simply provides that an operator

is not deemed to be in violation of its

repair or compensation obligations as

long as it is, in good faith, attempting to

make appropriate repairs or pay

appropriate compensation, or has

posted the escrow amount necessary to

contest its liability. Finally,

Pennsylvania also noted that a claim is

only an allegation, not a violation.

The Director is approving this section.

The federal regulations at 30 CFR 773.12

and 773.14 prohibit the issuance of a

permit if the applicant has outstanding

violations unless both the abatement

period for the notice of violation has not

yet expired and the applicant has

certified in the permit application that

the violation is being satisfactorily

corrected. Pennsylvania’s provision is

consistent with these regulations since

no violation was issued.

Section 5.6(a) (52 P.S. 1406.5f(a)).

This section deals with voluntary

agreements for repair or compensation

for damages to structures caused by

underground mining. In our letter of

June 21, 1999, to Pennsylvania we noted

that several times within this section

Pennsylvania refers to ‘‘releases’’ that

could be a part of the agreements. We

asked Pennsylvania to clarify what is

meant by the term ‘‘release’’ as used in

this section.

In its letter to us dated June 1, 2000,

Pennsylvania responded that BMSLCA

does not define release. As the term is

used in section 5.6 (52 P.S. 1406.5f), it

refers to a written discharge, acquittance

or receipt given in exchange for

consideration as part of an agreement

that establishes the means and methods

by which the mine operator will repair

or compensate for subsidence damage.

Pennsylvania noted that section 5.6(a)

(52 P.S. 1406.5f(a)) recognizes that mine

operators who have fully met their

statutory obligations are entitled to

obtain a release that precludes the

landowner from seeking multiple

recoveries on the same claim.

The Director is approving this portion

of the amendment. While there is no

direct federal counterpart to this

section, agreements were recognized in

the preamble to the federal rule, so long

as the agreements did not ‘‘negate the

requirements of the Energy Policy Act.’’

60 FR at 16735. Since this section

provides that ‘‘remedies shall be no less

than those necessary to compensate the

owner of a building for the reasonable

cost of its repair,’’ the Director finds this

section not inconsistent with the

requirements of SMCRA and the federal

regulations.

Section 5.6(b) (52 P.S. 1406.5f(b)).

This section provides that when a

voluntary agreement for repair or

compensation is executed between

landowners and operators, every deed

for conveyance of property covered by

the agreement must contain a recital of

the agreement and any release contained

within the agreement. There is no

federal counterpart to this portion of the

amendment. Since this section provides

notice of the agreement and any release,

the Director finds it not inconsistent

with the requirements of SMCRA and

the federal regulations and is approving

it.

Section 5.6(c) (52 P.S. 1406.5f(c)).

This section provides:

The duty created by section 5.5 to repair

or compensate for subsidence damage to the

buildings enumerated in section 5.4(a) shall

be the sole and exclusive remedy for such

damage and shall not be diminished by the

existence of contrary provisions in deeds,

leases or agreements which relieved mine

operators from such duty. Nothing herein

shall impair agreements entered into after

April 27, 1966, and prior to the effective date

of this section, which, for valid

consideration, provide for a waiver or release

of any duty to repair or compensate for

subsidence damage. Any such waiver or

release shall only be valid with respect to

damage resulting from the mining activity

contemplated by such agreement.

In our letter of June 21, 1999, to

Pennsylvania we noted that this section

appears to be less effective than the

federal regulations because the post1966 structures may have entered into

an agreement that would have provided

requirements that are less effective than

30 CFR 817.121(c). OSM has determined

that ‘‘[a]n underground mining

operation has a statutory obligation to

repair, which may not be negated by a

prior agreement.’’ 60 FR at 16736.

In its response to us dated June 1,

2000, Pennsylvania noted that:

‘‘Post 1966 structures’’ or structures built

after 4/27/66 had no protection from

subsidence damage under BMSLCA until 8/

21/94, the effective date of section 5.6.

Because BMSLCA did not provide protection

to these structures, it is highly unlikely there

are any agreements providing for repair or

compensation for ‘‘post 1966 structures.’’ Pre

1966 dwellings were completely protected;

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67027

they could not be damaged by subsidence.

Post 1966 agreements for pre 1966 dwellings

would have to have provided the

homeowners more than full compensation or

repairs otherwise the owner would not have

had any reason to enter into an agreement

with a mine operator. Accordingly, this

provision is at least as effective as 30 CFR

817.121(c).

The Director approves the following

language:

The duty created by section 5.5 to repair

or compensate for subsidence damage to the

buildings enumerated in section 5.4(a) shall

be the sole and exclusive remedy for such

damage and shall not be diminished by the

existence of contrary provisions in deeds,

leases or agreements which relieved mine

operators from such duty.

There is no requirement in the federal

rules that Pennsylvania have a

requirement in addition to the duties

enumerated in sections 5.4 and 5.5 (52

P.S. 1406.5d and 1406.5e) of the

BMSLCA. If Pennsylvania wishes to

eliminate any common law duties, that

is within its discretion. Accordingly,

this language is not inconsistent with

the requirements of SMCRA and the

federal regulations. However, the

Director does not find Pennsylvania’s

explanation with regard to the last two

sentences of section 5.6(c) (52 P.S.

1406.5f(c)) to be persuasive, because to

do so would render that portion of

section 5.6(c) (52 P.S. 1406.5f(c))

meaningless. The Director finds that the

last two sentences: ‘‘Nothing herein

shall impair agreements entered into

after April 27, 1966, and prior to the

effective date of this section, which, for

valid consideration, provide for a

waiver or release of any duty to repair

or compensate for subsidence damage.

Any such waiver or release shall only be

valid with respect to damage resulting

from the mining activity contemplated

by such agreement’’ are inconsistent

with the federal regulations at 30 CFR

817.121(c) and the Director is not

approving this portion of section 5.6(c)

(52 P.S. 1406.5f(c)). While OSM

recognizes that EPAct and Act 54 are

not retroactive, this language seems to

provide that private agreements entered

into between April 27, 1966 and August

21, 1994, waiving or releasing any duty

to repair or compensate for subsidence

damage remain effective, including for

mining activities beyond the effective

date of the protections of EPAct and Act

54, if contemplated by the agreement.

Thus, these sentences provide that

agreements made after April 1966 and

before August 21, 1994, do not have to

comply with the provisions of the

BMSLCA if they are written contrary to

the requirements of section 5.5 (52 P.S.

1406.5e) of BMSLCA. Section 720(a)(1)

and 30 CFR 817.121(c)(2) require repair

or compensation for affected structures.

Agreements are acceptable if the terms

of the agreement meet ‘‘the

requirements under paragraph

817.121(c)(2).’’ 60 FR at 16735. ‘‘Any

permittee/owner agreements cannot

negate the requirements of the EPAct to

repair or compensate for subsidence

related material damage to occupied

residential dwellings and related

structures as well as non-commercial

buildings.’’ Id. Since this provision

negates the requirements of section 5.5

(52 P.S. 1406.5e) of BMSLCA, it is

inconsistent with the federal

regulations.

Section 5.6(d) (52 P.S. 1406.5f(d)).

This section provides that any

agreement made under section 5.6(c) (52

P.S. 1406.5f(c)) must be included in

every deed for conveyance of the

property covered by the agreement. The

Director is not approving this provision

to the extent that section 5.6(c) has not

been approved. Therefore, section 5.6(d)

(52 P.S. 1406.5f(d)) is inconsistent with

the requirements of SMCRA and the

federal regulations to the extent that

section 5.6(c) (52 P.S. 1406.5f(c)) is

inconsistent.

Section 6 (52 P.S. 1406.6). This

section was modified by both removing

former subsection (a) and replacing

references in subsection (b) to sections

4 and 5 with references to sections 5,

5.4, 5.5 and 5.6. The section now

requires applicants to file bonds

conditioned upon the applicant’s

faithful performance of mining or

mining operations in accordance with

sections 5, 5.4, 5.5 and 5.6. While this

section requires submission of bonds at

the time of application, there is no

requirement similar to that found in 30

CFR 817.121(c)(5), which requires an

adjustment of bond amount for

subsidence damage to structures or

water supplies if repair or replacement

is not completed within 90 days of

occurrence of damage.

In our letter of June 21, 1999, we

indicated that section 5.5(e) (52 P.S.

1406.5e(e)), regarding establishment of

escrow accounts appears to be less

effective than the federal regulations

because there is no provision in cases

where the operator has not appealed an

order of the Department to insure that

funds are available for the repair or

compensation for damage to structures

and no financial guarantees for the

restoration of water supplies. After

reviewing Pennsylvania’s response to

that comment, we found that the escrow

provisions of section 5.5(e) (52 P.S.

1406.5e(e)) were separate from the

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

increase the bond in response to

subsidence damage. However, by

reviewing Pennsylvania’s response to

our comment in section 5.5(e) (52 P.S.

1406.5e(e)), we found that section 6 was

required to be amended to include this

provision.

Pennsylvania responded in their letter

of June 1, 2000, that:

Section 6(b) of BMSLCA authorizes PADEP

to require bonds of appropriate amounts to

ensure the applicant’s faithful performance of

mining or mining operations, in accordance

with the provisions of sections 5, 5.4, 5.5,

and 5.6.

These requirements are in addition to the

escrow requirements of section 5.5(e). These

bonds must be posted at the time of permit

application and will be in place to ensure the

repair of any and all structure damage that

occurs during the term of the mining permit.

As Pennsylvania noted, these bonds will

be posted at the time of permit

application. However, it is very difficult

to predict the amount of subsidence

damage that will occur to structures,

therefore, it may be necessary to raise

the bond amounts after damage has

occurred. There is no provision in the

Pennsylvania program that requires the

state regulatory authority to increase

bonds in response to subsidence

damages that are not repaired or

replaced within 90 days. Pennsylvania’s

only mechanism for increasing the bond

amount is if a party in interest requests

such an increase. The federal rules at 30

CFR 817.121(c)(5) require the regulatory

authority to increase the bonding

amounts for the permittee.

Pennsylvania’s requirement places the

burden on someone other than the state

to monitor the bonding amounts. The

state regulatory authority is the only

appropriate entity to determine when

the bonds must be adjusted. In addition,

Pennsylvania’s program fails to require

a bond or a bond increase if damage

occurs to the land or water resources.

The federal rule at 30 CFR 817.121(c)(5)

requires an increase in the performance

bond when subsidence related material

damage to land occurs, or when a

protected water supply is contaminated,

diminished or interrupted. Therefore,

the Director is requiring Pennsylvania to

amend its program to comply with the

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

Section 9.1(a) (52 P.S. 1406.9a(a)).

This section requires that if the

department determines, and notifies a

mine operator, that a proposed mining

technique or extraction ratio will result

in subsidence that causes an imminent

hazard to human safety, the technique

or extraction ratio will not be permitted

unless the mine operator, prior to

mining, takes measures approved by the

Department to eliminate the imminent

hazard.

67028 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

Even though there is no

corresponding federal regulation, the

Director is approving this section

because it is consistent with 30 CFR

817.121(f), which requires the

suspension of underground mining if

imminent danger to inhabitants of

urbanized areas, cities, towns or

communities is found.

Section 9.1(b) (52 P.S. 1406.9a(b)).

This section provides that a mining

technique or extraction ratio that the

Department determines will cause

irreparable damage to buildings in

section 5.4(a)(3) or (4) (52 P.S.

1406.5d(a)(3) or (4)) will not be

permitted unless the building owner,

prior to mining, consents to such

mining or the mine operator, prior to

mining, agrees to take measures

approved by the Department to

minimize or reduce impacts resulting

from subsidence to such buildings.

The Director finds that there is no

comparable provision in the federal

regulations because the federal

regulations do not discuss irreparable

damage. The irreparable damage

standard for this portion of the

amendment provides a level of

protection to structures threatened with

irreparable damage that is not provided

for in federal regulations. The Director

is approving this portion of the

amendment.

Section 9.1(c) (52 P.S. 1406.9a(c)).

This section provides that underground

mining activities shall not be conducted

beneath or adjacent to public buildings

and facilities, churches, schools and

hospitals, impoundments, or bodies of

water with volume of 20 acre-feet or

more unless the subsidence control plan

demonstrates that subsidence will not

cause material damage to, or reduce the

reasonably foreseeable use of, such

facilities. The Department may limit the

percentage of coal extracted under or

adjacent to these features or facilities or

to any aquifer or body of water that

serves as a significant water source for

any public water supply system if it

finds that it is necessary in order to

minimize the potential for material

damage. The Director finds that this

portion of the amendment is no less

effective than the federal regulations at

30 CFR 817.121(d), which have

substantially the same requirements.

Section 9.1(d) (52 P.S. 1406.9a(d)).

This section provides that nothing in

the act shall supersede standards related

to the prevailing hydrologic balance

contained in federal SMCRA and

regulations promulgated by

Pennsylvania to obtain or maintain

jurisdiction over the enforcement and

administration of SMCRA or any

standard contained in Pennsylvania’s

Clean Streams Law. Even though there

is no direct federal counterpart, the

Director is approving this section

because it does not limit or change the

rights of landowners or the

responsibilities of operators as provided

for in federal regulations, nor is it

inconsistent with the requirements of

SMCRA and the federal regulations.

Section 15 (52 P.S. 1406.15). This

section was repealed by Act 54. The

section allowed landowners to purchase

enough support coal beneath a structure

to provide protection from subsidence.

There are no similar provisions in the

federal regulations. The Director is

approving repeal of this section because

repealing it does not make

Pennsylvania’s program less effective

than the federal regulations regarding

protection of structures.

Section 17.1 (52 P.S. 1406.17a). This

section lists various conducts that are

unlawful under the BMSLCA. Act 54

changed the section by removing the

phrase ‘‘to cause land subsidence or

injury’’ as one of the examples of

unlawful conduct.

The Director is approving this change

to the BMSLCA. The federal rules

anticipate that subsidence will occur

and provide compensation for, or repair

of, damages to homes and other

structures as well as replacement of

adversely affected water supplies.

Subsidence in itself is not unlawful

conduct under the federal regulations.

The portion of the amendment that

removes injury as unlawful conduct is

also approved. The Director finds that

the portions of the BMSLCA that require

prevention of hazards to human safety

and material damage to certain

buildings (section 9.1) provide a similar

level of protection from injury that the

federal regulations provide. The

Director is approving the changes to

section 17.1 because they are not

inconsistent with SMCRA and the

federal regulations.

Section 18.1 (52 P.S. 1406.18a). This

section requires the Department to

compile data in deep mine permit

applications, monitoring reports, and

other data submitted by operators, and

from enforcement actions. The data are

to be used to determine the effects of

deep mining on subsidence of surface

structures and on water resources. A

report on the analysis of the data is to

be presented to the Governor, the

General Assembly, and the Citizen’s

Advisory Council every five years.

There is no direct federal counterpart

to this regulation but the Director is

approving this section because it does

not limit or change the rights of

landowners or the responsibilities of

operators as provided for in federal

regulations nor is it inconsistent with

the requirements of SMCRA and the

federal regulations.

Summary Table

The table below summarizes the

Director’s findings with regard to each

section of the BMSLCA.

Sections of the BMSLCA that are approved Sections of Act 54 that are conditionally approved or that are required to be amended

Sections of Act 54 that are not approved in

whole or in part

Repeal of Section 4 (52 P.S. 1406.4)) ............... 5(b) (52 P.S. 1406.5(b)) ................................... 5.1(b) (52 P.S. 1406.5a(b)).

5.1(a)(2) and (3) (52 P.S. 1406.5a(a)(2) and

(3)).

5.1(a)(1) (52 P.S. 1406.5a(a)(1)) ..................... 5.2(b)(2) (52 P.S. 1406.5b(b)(2)).

5.2(a)(1), (2), and (3) (52 P.S. 1406.5b(a)(1),

(2), and (3)).

5.4(a) (52 P.S. 1406.5d(a)) .............................. 5.2(d) (52 P.S. 1406.5b(d)).

5.2(b)(1) (52 P.S. 1406.5b(b)(1)) ....................... 5.5(a) (52 P.S. 1406.5e(a)) .............................. 5.2(e)(2) (52 P.S. 1406.5b(e)(2)).

5.2(c) (52 P.S. 1406.5b(c)) ................................ 6 (52 P.S. 1406.6)) .......................................... 5.2(g), (h), and (i) (52 P.S. 1406.5b(g), (h),

and (i)).

5.2(e)(1) and (3) (52 P.S. 1406.5b(e)(1) and

(3)).

.......................................................................... 5.3(a), (b), and (c) (52 P.S. 1406.5c(a), (b),

and (c)).

5.2(f) (52 P.S. 1406.5b(f)) .................................. .......................................................................... 5.4(a)(3) (52 P.S. 1406.5d(a)(3)).

5.2(j) (52 P.S. 1406.5b(j)) ................................... .......................................................................... 5.4(c) (52 P.S. 1406.5d(c)).

5.2(k) (52 P.S. 1406.5b(k)) ................................ .......................................................................... 5.5 (b) and (c) (52 P.S. 1406.5e(b) and (c)).

5.4(a)(1), (2) and (4) (52 P.S. 1406.5d(a)(1),

(2), and (4)).

.......................................................................... 5.5(f) (52 P.S. 1406.5e(f)).

5.4(b) (52 P.S. 1406.5d(b)) ................................ .......................................................................... 5.6(c) and (d) (52 P.S. 1406.5f(c) and (d)).

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67029

Sections of the BMSLCA that are approved Sections of Act 54 that are conditionally approved or that are required to be amended

Sections of Act 54 that are not approved in

whole or in part

5.5 (d), (e) and (g) (52 P.S. 1406.5e(d), (e) and

(g)).

5.6(a) and (b) (52 P.S. 1406.5f(a) and (b)).

9.1(a), (b), (c), and (d) (52 P.S. 1406.9a (a),

(b), (c), and (d)).

Repeal of Section 15 (52 P.S. 1406.15).

17.1 (52 P.S. 1406.17a).

18.1 (52 P.S. 1406.18a).

B. Changes to the Regulations at 25 Pa

Code Chapter 89

Set forth in the explanation below and

the table that follows, pursuant to

SMCRA and the federal regulations at

30 CFR 732.15 and 732.17, are the

Director’s findings concerning the

amendments to the regulations at 25 Pa.

Code Chapter 89. The Director’s reasons

for approving, conditionally approving,

requiring amendments to, or not

approving regulations in 25 Pa. Code

Chapter 89 are noted. The sections are

listed in the order they appear in

Chapter 89 for easy reference.

Section 89.5, definition of the term

‘‘de minimis cost increase.’’ This

definition is used in section 89.145a

relating to water supply replacement

performance standards. It states an

increase in the cost of providing a

restored or replaced water supply is

acceptable if the increased cost of

operating the replaced or restored water

supply is de minimis. This section

defines de minimis as either less than

15% of the annual operating and

maintenance costs of the previous water

supply that is restored or replaced, or is

less than $60 per year. In our letter to

Pennsylvania dated June 21, 1999, we

indicated that there was no counterpart

in federal regulations to this definition.

However, the preamble to the federal

regulations at 60 FR 16726 provides that

the payment of replacement water

supply operation and maintenance costs

in excess of premining costs is a logical

aspect of the requirement to replace a

water supply. The goal of the provision

is to insure that the owner or user of the

water supply is made whole, and that

no additional costs are passed on to the

water supply user after the replacement

supply is installed, beyond those that

are customary and reasonable for the

premining supply. We concluded that

the definition appears to be less

effective than the federal regulation

because it passes costs in excess of

premining costs to the landowner or

water supply user.

In their June 1, 2000, response to our

letter, Pennsylvania indicated that:

The court decisions in Carlson Mining Co

v. DER, EHB 91–547–E, Gioia Coal v. DER,

1986 EHB 82, and Buffy and Landis v. DER,

1990 EHB 1665 defined what constituted an

adequate replacement water supply. These

Court decisions addressed increased

operation and maintenance costs, increased

maintenance, control, accessibility, reliability

and performance of the replacement water

supply. The Court found that a property

owner has been made whole if the increase

in operating and maintenance costs is de

minimis. The Pennsylvania case law is

codified in these regulations to facilitate

understanding of the law by water supply

users and the regulated community.

The Pennsylvania regulations, which

incorporated court determinations of what

cost increases were more than de minimis

and were required to be paid by the operator

are as effective as OSM’s provision requiring

a permittee to ‘‘replace any drinking,

domestic or residential water supply that is

contaminated, diminished or interrupted by

underground mining activities.’’ The federal

regulations do not establish any specific

requirements for operating and maintenance

costs * * *

The Director is not approving the

definition of de minimis cost increase

from 25 Pa. Code 89.5 because it allows

some increased costs of operating and

maintaining a restored or replaced water

supply system to be passed on to the

landowner or water user. Depending on

the original costs, both a 15% increase

as well as a $60 increase could be

excessive. The increased costs are still

beyond the intent of the federal

regulations, that ‘‘[t]he owner or user of

the water supply is made whole, and

that no additional costs are passed on to

the water supply user.’’ (60 FR 16726).

Only by fully subsidizing all costs

associated with the replacement or

restored water supply will that intent be

realized.

Finally, OSM notes that the cases

cited by PADEP were all issued before

Act 54 and EPACT was enacted (except

Carlson, which was issued 5 days after

EPAct’s date). Accordingly, these cases

could not contemplate EPAct’s

requirements.

Section 89.5, definition of the term,

‘‘dwelling.’’ Pennsylvania is proposing

the definition of the term dwelling to be

‘‘a building or other structure that, at the

time subsidence occurs, is used either

temporarily, occasionally, seasonally or

permanently for human habitation.’’

This definition is the same as OSM’s

definition of the phrase ‘‘occupied

dwelling and structures related thereto’’

found in 30 CFR 701.5, except it does

not include related structures. The

related structure information is found in

Pennsylvania’s regulations at 25 Pa.

Code 89.5 in the definition of

‘‘permanently affixed appurtenant

structures.’’ The Director finds that

Pennsylvania’s definition of the term

‘‘dwelling’’ when used in conjunction

with the phrase ‘‘permanently affixed

appurtenant structure’’ is no less

effective than the federal definition of

‘‘occupied dwelling and structures

related thereto,’’ so long as the

limitations on the definition of

‘‘permanently affixed appurtenant

structure’’ discussed later in this

rulemaking are implemented.

Section 89.5, definition of the term,

‘‘fair market value.’’ Pennsylvania’s

definition of fair market value is the

amount at which property would

exchange hands between a willing buyer

and a willing seller, neither being under

any compulsion to buy or sell and both

having reasonable knowledge of the

relevant facts. The only place this term

is used in Chapter 89 is at 25 Pa. Code

89.152(a)(5)(i) with regard to an

operator’s purchase of a property to gain

relief from the responsibility of water

supply replacement. Because that

section of the regulations has not been

approved and is not self-sustaining,

there is no need for the Pennsylvania

program to contain the definition of

‘‘fair market value.’’ As a result, the

Director is not approving the definition

of the term ‘‘fair market value’’ found in

25 Pa. Code 89.5.

Section 89.5, definition of the term,

‘‘irreparable damage.’’ Through its

definition of ‘‘irreparable damage,’’

Pennsylvania has created four ways in

which a structure can be classified as

irreparably damaged. They include: (1)

Where the cost of repair would exceed

the cost of replacement; (2) the damage

is so great that its repair is prohibited by

law; (3) it is impossible or impractical

to restore the structure to its previous

strength; or (4) for structures recognized

as historical or architecturally

67030 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

significant, one of the following: the

damage would adversely affect the

structures historical or architectural

value, or the cost of repair with the

same craftsmanship and historically and

architecturally equivalent components

exceeds the cost of replacement, or it is

impossible to repair or restore the

historical and architectural value of the

structure with the same craftsmanship

and historically and architecturallyequivalent components.

There is no federal counterpart to this

definition. The federal rules define

‘‘material damage’’ at 30 CFR 701.5 as

(1) Any functional impairment; (2) any

physical change that has a significant

adverse impact on the land; or (3) any

significant change in the condition,

appearance or utility. Any material

damage must be corrected (for

structures, the other option is

compensation). Pennsylvania’s

irreparable damage standard, does not

contemplate correction. Thus, by

creating an irreparable damage standard,

Pennsylvania has defined a class of

damage that may be more severe than

the material damage standard found in

federal regulations. As discussed later,

there are certain situations, where

Pennsylvania does not require

protection from material damage.

However, the Director is approving the

definition of the phrase ‘‘irreparable

damage’’ since it is not inconsistent

with the federal rules. The Director

notes that this approval does not affect

the requirements afforded by the

material damage standard found in

federal regulations.

Section 89.5, definition of the term,

‘‘material damage.’’ Pennsylvania’s

definition is substantially the same as

and therefore no less effective than the

federal definition of material damage at

30 CFR 701.5. The Director is approving

Pennsylvania’s definition of the term

‘‘material damage.’’

Section 89.5, definition of the term,

‘‘noncommercial building.’’

Pennsylvania’s definition is

substantially the same as, and therefore

no less effective than, the federal

definition of noncommercial building at

30 CFR 701.5. The Director is approving

Pennsylvania’s definition of the term

‘‘noncommercial building.’’

Section 89.5, definition of the term,

‘‘permanently affixed appurtenant

structures.’’ This term is used in

conjunction with structures listed in 25

Pa. Code 89.142a(f)(1)(i) and (iii)

relating to subsidence control

performance standards. The term is

defined as a structure or facility

securely attached to the land surface if

that structure or facility is adjunct to,

and used in connection with, structures

listed in 25 Pa. Code 89.142a(f)(1)(i) and

(iii).

In our letter to Pennsylvania dated

June 21, 1999, we indicated that the

federal definition of the term ‘‘occupied

residential dwelling and structures

related thereto’’ does not require that

the appurtenant structure be ‘‘securely

attached to the land.’’ This is a

meaningful difference in coverage for

some structures that would be set on the

surface but not readily removable, i.e.,

storage sheds that are not built on a

foundation but are set in place on the

surface of the ground. We asked

Pennsylvania to clarify how the

proposed definition will account for

damage to appurtenant structures not

attached to the land.

In their letter to us of June 1, 2000,

Pennsylvania indicated that under

Pennsylvania law, those structures

which are not permanently affixed

appurtenant structures would be

generally classified as improvements.

Accordingly, these structures would be

protected under 25 Pa. Code 89.142a(f)

to the extent that they were in place on

August 21, 1994, or on the date of first

publication of the permit application or

permit renewal application and within

the boundary of the entire mine as

depicted in the permit application. In

addition, Pennsylvania noted that

structures that are not attached to the

ground are less prone to experience

subsidence damage. Since these

structures do not have foundations, they

are not subject to the stresses that result

from ground movement.

The Director has found that

Pennsylvania’s definition of

‘‘permanently affixed appurtenant

structures’’ is less effective than the

federal regulations. The federal

definition of the term ‘‘occupied

residential dwelling and structures

related thereto’’ at 30 CFR 701.5, lists

examples of protected facilities.

Pennsylvania has adopted a similar

listing of protected facilities in its

definition of ‘‘permanently affixed

appurtenant structures.’’ However, in

that definition, Pennsylvania requires

that these facilities be ‘‘securely

attached to the land surface.’’

Pennsylvania’s protection of structures

is less inclusive than the federal

regulations because the federal

requirements do not require structures

to be attached to the land surface to be

protected. This finding is acknowledged

by Pennsylvania in its preamble when

discussing the definition of

‘‘permanently affixed appurtenant

structures’’ by stating that the definition

does ‘‘not include all structures

encompassed by the Federal definition’’

and it only includes those structures

permanently affixed to the ground. 28

Pa.B. 2766.

The Director is not approving the

portion of the definition that requires

structures to be ‘‘securely attached to

the land surface.’’ The federal

regulations (definition of the term

‘‘occupied residential dwelling and

structures related thereto’’ at 30 CFR

701.5) require protection for structures

or facilities installed on, above or below,

or a combination thereof, the land

surface, if that building structure or

facility is adjunct to or used in

connection with an occupied residential

dwelling. There is no requirement that

such structures or facilities be securely

attached to the land surface. By

protecting only structures that are

securely attached to the land surface,

Pennsylvania is creating a class of

facility or structure that will not be

afforded the protections of the federal

regulations.

Section 89.5, definition of the term,

‘‘public buildings and facilities.’’

Pennsylvania defines ‘‘public buildings

and facilities’ as structures that are

owned or leased and principally used

by a government agency for public

business or meetings and anything built,

installed, assembled or used by a

government agency to provide a public

service. Pennsylvania then listed

examples of ‘‘public buildings and

facilities.’’ In the federal program

‘‘public building’’ is defined at 30 CFR

761.5 to mean any structure that is

owned or leased, and principally used

by a governmental agency for public

business or meetings. Pennsylvania’s

definition of ‘‘public buildings and

facilities’’ includes everything in the

federal definition. The Director finds

that Pennsylvania’s definition of

‘‘public buildings and facilities’’ is no

less effective than the federal definition

of ‘‘public building’’ and is approving

the definition.

Section 89.5, definition of the term,

‘‘public water supply system.’’ There is

no corresponding federal definition to

this term. Pennsylvania defines ‘‘public

water supply system’’ as a water

delivery system which does one of the

following; serves at least 15 service

connections used by year-round

residents or regularly serves at least 25

year-round residents, or provides water

to a public building, church, school,

hospital or nursing home. Pennsylvania

uses this term several times throughout

Chapter 89 of its regulations to describe

protections to public water supplies.

The Director is approving this definition

because it is used to protect water

supplies that are protected by the

federal regulations and it also could be

used to protect water supplies that may

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67031

not be protected under the federal

program. Therefore the definition is not

inconsistent with the requirements of

SMCRA and the federal regulations.

Section 89.5, definition of term,

‘‘rebuttable presumption area.’’

Pennsylvania defines ‘‘rebuttable

presumption area’’ in the context of

water supply replacement, to mean the

area in which an operator is presumed

responsible for diminishing,

contaminating or interrupting a water

supply. The area is defined by

projecting a 35-degree angle from the

vertical from the outside of any area

where the operator has extracted coal

from an underground mine. There is no

federal counterpart to this definition.

The Director is approving the definition

because landowners and water users

will benefit from the presumption

through a more rapid response by

operators to their complaints. The

Director finds that this definition is not

inconsistent with the requirements of

SMCRA at section 720(a)(2) and the

federal regulations at 30 CFR 817.41(j)

to provide prompt replacement of

protected water supplies.

Section 89.5, definition of the terms,

‘‘underground mining,’’ and

‘‘underground mining operations.’’

Pennsylvania’s definition of

‘‘underground mining’’ is the extraction

of coal in an underground mine. The

federal definition of the term

‘‘underground mining activities’’ is

found at 30 CFR 701.5 and is a

combination of two parts: (a) Surface

operations incident to underground

extraction of coal or in situ processing,

such as construction, use, maintenance,

and reclamation of roads, above-ground

repair areas, storage areas, processing

areas, shipping areas, areas upon which

are sited support facilities including

hoist and ventilating ducts, areas

utilized for the disposal and storage of

waste, and areas on which materials

incident to underground mining

operations are placed; and (b)

Underground operations such as

underground construction, operation,

and reclamation of shafts, adits,

underground support facilities, in situ

processing, and underground mining,

hauling, storage, and blasting.

Pennsylvania’s proposed definition of

‘‘underground mining operations’’ is

substantially the same as (b) of the

federal definition of ‘‘underground

mining activities.’’ Pennsylvania’s

definition of ‘‘underground mining’’ is

consistent with how the term

underground mining is used in

paragraph (b) of the federal definition of

‘‘underground mining activities’’ since

it is an underground operation. The

Director finds that the definitions of the

terms ‘‘underground mining’’ and

‘‘underground mining operations’’ is

consistent with the federal definition of

‘‘underground mining activities’’ and is

approving both definitions.

Section 89.5, definition of the term,

‘‘water supply.’’ Pennsylvania’s

definition of ‘‘water supply’’ includes

existing sources of water used for

domestic, commercial, industrial or

recreational purposes or for agricultural

uses. It also includes supplies that serve

a public building or a noncommercial

structure customarily used by the

public, including churches, schools and

hospitals. This definition differs from

the federal definition of the term

‘‘drinking, domestic or residential water

supply’’ found at 30 CFR 701.5.

Pennsylvania has stated in the preamble

to its regulations that ‘‘[t]he definition of

‘‘water supply’’ includes all water

supplies covered under the federal

program, including those which are

used for irrigating noncommercial

gardens and noncommercial agricultural

operations.’’ 28 Pa.B. 2767.

The Pennsylvania term is more

inclusive in that it protects agricultural

supplies, which the federal regulations

do not protect unless they are used for

direct human consumption or human

sanitation, or domestic use. However, it

does not appear to include the

appurtenant delivery systems of the

federal definition. As stated in our

finding to section 5.1(a)(3) (52 P.S.

1406.5a(a)(3)), we expressed this

concern to Pennsylvania in our letter of

June 21, 1999. Pennsylvania responded

by stating ‘‘connections from a well or

spring are permanent affixed

appurtenant structures that must be

repaired by the mine operator.’’

Pennsylvania went on to state that

damage to a water main and its

connecting piping would be regulated

under 25 Pa. Code 89.142a(g) if it was

owned by the water company. If the

connecting piping was owned by the

property owner, the mine operator

would be required to repair.

Additionally, Pennsylvania’s proposed

performance standards at 25 Pa. Code

89.145a(f)(4) indicate that replacement

of a water supply shall include the

installation of any piping, pumping

equipment and treatment equipment

necessary to put the replaced water

source into service. This performance

standard includes the items

contemplated by the appurtenant

delivery system requirements of the

federal regulations.

Therefore, based on the Pennsylvania

Bulletin language, Pennsylvania’s

explanation, and when used with the

performance standards of 25 Pa. Code

89.145a(f)(4), the Director finds that the

definition of ‘‘water supply’’ is no less

effective than the federal definition of

‘‘drinking, domestic, or residential

water supply’’ and is approving this

portion of the amendment.

Section 89.33. This section deals with

the geologic data requirements of the

permit. Pennsylvania made only two

minor revisions to this section; the

nonsubstantive addition of the metric

equivalent of 200 feet (60.96 meters)

after the term of ‘‘200 feet’’ in

subsection (a)(1), and the requirement

that the operation plan include a

description of the coal seam thickness

(to be added to subsection (a)(1) as item

(iii)). The addition of this requirement

necessitated designating former section

(iii) as (iv) and designating former

section (iv) as (v). The federal rule at 30

CFR 784.20(b)(3) requires a subsidence

control plan to contain a description of

seam thickness. Therefore, this addition

is no less effective than the federal

regulations and the Director is

approving this portion of the

amendment.

Section 89.34. Pennsylvania has made

two minor changes in this portion of the

amendment. Both are found in

subsection (a)(1)(i). This section lists the

information operators must submit in

their application regarding groundwater.

The first sentence of subsection (i)

formerly read, ‘‘The results of a

groundwater inventory of existing wells,

springs and other groundwater

resources, providing information on

location, quality, quantity, depth to

water and usage for the proposed permit

area and potentially impacted offsite

areas.’’ The first sentence now reads,

‘‘The results of a groundwater inventory

of existing wells, springs and other

groundwater resources, providing

information on location, ownership,

quality, quantity, depth to water and

usage for the proposed permit area and

adjacent area.’’ The Director finds that

the changes to this section are no less

effective than the requirements for

ground water information found in the

federal regulations at 30 CFR

784.14(b)(1) since the federal rules also

require ownership information on the

proposed permit and adjacent areas. The

Director is approving the changes to this

section.

Section 89.35. This section involves

prediction of the hydrologic

consequences of mining. The first

sentence of the section was modified by

adding the phrase ‘‘and whether

underground mining activities may

result in contamination, diminution or

interruption of any water supplies

within the permit or adjacent area’’ to

the end of the sentence. The sentence

now reads, ‘‘The operation plan shall

67032 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

include a prediction of the probable

hydrologic consequences of the

proposed underground mining activities

upon the quantity and quality of

groundwater and surface water within

the proposed permit, adjacent and

general areas under seasonal flow

conditions, and whether underground

mining activities may result in

contamination, diminution or

interruption of any water supplies

within the permit or adjacent area.’’

The federal regulations regarding this

section are found at 30 CFR

784.14(e)(3)(iv). These regulations

require the probable hydrologic

consequences determination to include

findings on whether underground

mining activities conducted after

October 24, 1992, may result in

contamination, diminution or

interruption of a well or spring in

existence at the time the permit

application is submitted and used for

domestic, drinking, or residential

purposes within the permit or adjacent

areas. The Pennsylvania amendment

requires a finding for any water supplies

within the permit or adjacent area. This

would make the Pennsylvania program

more inclusive than the federal

regulation, which limits required

findings for only those water supplies

used for domestic, drinking or

residential purposes. Since

Pennsylvania’s program would require

findings for those water supplies

covered by the federal program, the

Director finds this addition no less

effective than 30 CFR 784.14(e)(3)(iv)

and is approving this portion of the

amendment.

Section 89.36. This section describes

the information an operator needs to

submit to ensure the protection of the

hydrologic balance. Pennsylvania’s

amendment adds a subsection (c) to this

section. Subsection (c) states, ‘‘The

operation plan shall include a

description of the measures which will

be taken to replace water supplies

which are contaminated, diminished or

interrupted by underground mining

activities. An operator is not required to

provide a replacement water supply

prior to mining as a condition for

securing a permit.’’

The federal regulations regarding

information to be submitted in a

subsidence control plan are found at 30

CFR 784.20. Subsection (b)(8) of the

federal rule requires a description of the

measures to be taken in accordance with

30 CFR 817.41(j) and 817.121(c) to

replace adversely affected protected

water supplies or to mitigate or remedy

any subsidence-related material damage

to the land and protected structures.

Pennsylvania’s regulation language is

substantively identical to and no less

effective than the federal regulation

with regard to replacement of water

supplies. The Director is approving this

portion of the amendment.

Section 89.67. Pennsylvania is

amending subsection (b) by requiring

surface mining activities associated with

an underground mine to be conducted

in a manner that minimizes damage,

destruction or disruption of services

provided by oil, gas and water wells; oil,

gas and coal-slurry pipelines; railroads;

electric and telephone lines; and water

and sewage lines that pass over, under

or through the permit area, unless

otherwise approved by the owner of

those surface facilities and the

Department. Formerly, this section

applied to all underground mining

activities instead of surface mining

activities associated with an

underground mine, as it now reads.

In responding to commenters who

favored retention of the existing

language at 25 Pa. Code 89.67(b),

Pennsylvania stated in the preamble to

the proposed regulations that:

The [Environmental Quality] Board

believes that it is appropriate to narrow the

scope of this regulation to address only those

activities which take place at surface sites

associated with an underground mine. There

is sufficient authority in Chapter 89,

Subchapter F (relating to subsidence control)

to regulate those aspects of the underground

mining activity which take place

underground. Together, these requirements

are no less effective than the Federal

regulation in 30 CFR 817.180. (28 Pa.B. 2768)

The authority in Chapter 89,

Subchapter F of the Environmental

Quality Board referred to was 25 Pa.

Code 89.142a(g)(1). This section

requires underground mining to be

planned and conducted in a manner

that minimizes damage, destruction or

disruption in services provided by the

same utilities listed in 25 Pa. Code

89.67. As noted in the Director’s

findings regarding 25 Pa. Code

89.142a(g)(1), we found that 25 Pa. Code

89.142a(g)(1) did not provide the same

level of protection for utilities that is

required under the federal regulations at

30 CFR 817.180. The Director is

requiring 25 Pa. Code 89.142a(g)(1) to be

amended to insure that all underground

mining activities are conducted in a

manner consistent with 30 CFR 817.180.

Please see the Director’s finding at 25

Pa. Code 89.142a(g)(1) for more

information.

In changing the language of 25 Pa.

Code 89.67(b), Pennsylvania has limited

protection to utilities from surface

mining activities associated with an

underground mine where prior to the

proposed amendment, protection was

extended from underground mining

activities. However, because of

Pennsylvania’s reliance on 25 Pa. Code

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

89.67(b) no less effective than the

federal regulations, the Director believes

that the amendment required at 25 Pa.

Code 89.142a(g)(1) will serve to

accomplish that goal. As a result, the

Director is approving Pennsylvania’s

amendment to 25 Pa. Code 89.67(b) as

not inconsistent with 30 CFR 817.180.

Section 89.141(a). Subsection (a)

deals with information operators are

required to submit regarding the geology

overlying the proposed permit area.

Subsection (a) formerly read, ‘‘The

application shall include a description

of the geology overlying the proposed

permit area, from the surface down to

the first stratum below the coal seam to

be mined. For the same strata, a detailed

description and cross-section shall be

provided from available test borings and

core samples. A copy of the information

developed for 25 Pa. Code 89.33

(relating to geology) may be submitted

to meet the requirement in this

subsection.’’

The subsection now reads, ‘‘The

application shall include a description

of the geology overlying the proposed

permit area, from the surface down to

the first stratum below the coal seam to

be mined. The description shall include

geologic conditions which are relevant

to the likelihood or extent of subsidence

or subsidence related damage. For the

same strata, a detailed description and

cross-section shall be provided from

available test borings and core samples.

A copy of the information developed for

25 Pa. Code 89.33 (relating to geology)

may be used as appropriate to meet the

requirements of this section.’’

The addition of the language requiring

information on geologic conditions that

are relevant to the likelihood or extent

of subsidence or subsidence related

damage makes this section no less

effective than the federal regulations at

30 CFR 784.20(b)(3), which require the

subsidence control plan to include a

description of the physical conditions

that affect the likelihood or extent of

subsidence and subsidence-related

damage. The Director is approving this

portion of the amendment.

Section 89.141(d). This subsection

requires the permit application to

include a subsidence control plan that

describes the measures that will be

taken to control the subsidence effects

from the proposed underground mining.

In our letter of June 21, 1999, we also

indicated that 25 Pa. Code 89.141(d) did

not address the provisions of 30 CFR

784.20(b)(8) that require the subsidence

control plan to contain a description of

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67033

the measures to be taken to replace

adversely affected protected water

supplies or to mitigate or remedy any

subsidence-related material damage to

the land and protected structures.

Pennsylvania indicated in its

response to us dated June 1, 2000, that

its regulations include requirements to

describe the measures to be taken to

replace adversely affected protected

water supplies and mitigate subsidencerelated material damage to the land and

protected structures. Requirements

relating to descriptions of water supply

replacement measures are found in 25

Pa. Code 89.36(c). Descriptions of the

measures to be used to correct material

damage to surface land are required

under 25 Pa. Code 89.141(d)(5).

Descriptions of measures to prevent

irreparable damage to dwellings and

agricultural structures are required

under 25 Pa. Code 89.141(d)(6).

Requirements relating to the protection

of public buildings and other specified

structures are found in 25 Pa. Code

89.141(d)(3).

We agree with Pennsylvania that the

requirements relating to descriptions of

measures to remedy contamination,

diminution, or interruption of water

supplies found within 25 Pa. Code

89.36(c) and that the descriptions to

prevent material damage to surface

lands found at 25 Pa. Code 89.141(d)(5)

are as effective as the requirements

found in the federal regulations.

However, we have found that

Pennsylvania’s amendment does not

require the subsidence control plan to

contain descriptions of measures to

mitigate or remedy material damage to

non-commercial buildings and

residential structures as required by 30

CFR 784.20(b)(8). The Pennsylvania

program discusses prevention of damage

to structures but does not discuss the

measures in the subsidence control plan

to be taken once damage has occurred

to structures. While the Director is able

to approve the general requirements of

25 Pa. Code 89.141(d), subsection (d)(6)

is required to be amended to insure that

the subsidence control plan contains a

description of measures to mitigate or

remedy material damage to all protected

structures. See the discussion at 25 Pa.

Code 89.141(d)(6) for more information

regarding the required amendment.

The Director is also requiring 25 Pa.

Code 89.141(d) to be amended because

of the use of the term ‘‘underground

mining.’’ Please see the combined

finding regarding use of the term

‘‘underground mining’’ as opposed to

‘‘underground mining operations’’ at the

end of the regulation section for more

information.

Section 89.141(d)(2). Pennsylvania

deleted all the existing wording of

subsection (d)(2) and added the

following wording which requires, ‘‘A

narrative describing whether

subsidence, if it is likely to occur, could

cause material damage to, or diminish

the value or reasonably foreseeable use

of, any structures or could contaminate,

diminish, or interrupt water supplies.’’

In our letter to Pennsylvania of June

21, 1999, we indicated that the term ‘‘if

it is likely to occur’’ is not the same as

the federal narrative requirement of 30

CFR 784.20 (a)(2) ‘‘indicating whether

subsidence, if it occurred, could cause

material damage * * *’’ We indicated

that the federal term requires more

information because it would tell the

public whether material damage or

water loss would occur if subsidence

occurred. PADEP regulations would

only tell the public whether material

damage or water loss would occur if

subsidence is likely to occur. We also

stated that while 30 CFR 784.20(a)(2)

requires the narrative to take into

account subsidence effects on

‘‘renewable resource lands,’’ 25 Pa.

Code 89.141(d)(2) fails to include

‘‘renewable resource lands.’’

In its response of June 1, 2000,

Pennsylvania indicated that its

regulation at 25 Pa. Code 89.141(d)

requires a subsidence control plan for

all underground mines without regard

to the presence of overlying structures,

water supplies or renewable resource

lands or whether or not those structures

and features could suffer material

damage as a result of mine subsidence.

In doing so, Pennsylvania noted that its

regulations are as effective as 30 CFR

784.20(a)(2). Through these plans, DEP

and the general public can see how

planned mining interfaces with

overlying structures and features.

Pennsylvania further noted that in

regard to the terminology, there is no

practical difference between the phrase

‘‘if it is likely to occur’’ and ‘‘if it

occurred’’ for the purpose of predicting

the level of damage. As a practical

matter, when full extraction (either

longwall mining or pillar extraction

during retreat mining) is the principal

method of mining, the applicant will

always provide information about what

will happen when subsidence occurs. In

addition, by requiring descriptions of

effects in areas where subsidence is

‘‘likely to occur,’’ the Pennsylvania

regulations provide information that is

less speculative. Pennsylvania noted

that its regulations provide the general

public with more usable information.

DEP can predict whether or not

subsidence will occur and affect these

features. DEP also evaluates the stability

of underground mine workings to

ensure that subsidence will not occur in

locations where it is not planned.

The Director finds that Pennsylvania’s

explanation is logical and makes this

portion of the amendment no less

effective than the federal provision at 30

CFR 784.20(a)(2).

Section 89.141(d)(3). This subsection

requires that, for each structure and

feature, or class of structures and

features, described in 25 Pa. Code

89.142a(c) (which include public

buildings and facilities, churches,

schools and hospitals, certain sized

impoundments and bodies of water, and

bodies of water or aquifers which serve

as a significant source to a public water

supply system), there must be a

description of the measures to be taken

to ensure that subsidence will not cause

material damage to, or reduce the

reasonably foreseeable uses of, the

structures or features. The federal rule at

30 CFR 784.20(b)(5) requires for nonplanned subsidence a description of

measures that will be taken to prevent

or minimize subsidence and subsidence

related damage. The federal rule does

not limit the descriptions to specific

structures or features, while

Pennsylvania’s regulation does limit the

description to specified structures and

features. Therefore, the Director finds

that to the extent a description is

required of some structures and

features, this section is no less effective

than 30 CFR 784.20(b)(5). However, to

the extent that the description is not all

inclusive (for example, dwellings,

buildings accessible to the public, and

noncommercial buildings customarily

used by the public would not be

included), the Director is requiring that

Pennsylvania amend its program to

provide the protections of 30 CFR

784.20(b)(5).

Section 89.141(d)(4). This section

provides that a subsidence control plan

must include a description of the

anticipated effects of planned

subsidence, if any. The Director finds

that this regulation is substantively

identical to, and no less effective than,

the federal regulation at 30 CFR

784.21(b)(6) and is approving it.

Section 89.141(d)(5). This section

requires subsidence control plans to

include a description of the measures to

be taken to correct any subsidencerelated material damage to the surface

land. The Director finds that this

regulation is substantively identical to,

and no less effective than, the portion of

the federal regulation at 30 CFR

784.21(b)(8) that requires subsidence

control plans to provide a description of

measures to be taken to mitigate or

remedy any subsidence-related material

67034 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

damage to the land. The Director is

approving this portion of the

amendment.

Section 89.141(d)(6). This section

requires that the subsidence control

plan include a description of measures

to be taken to correct any subsidencerelated material damage to the

structures enumerated in 25 Pa. Code

89.142a(f)(1)(iii)–(v), if the structure

owner does not consent to the damage.

In our letter to Pennsylvania dated June

21, 1999, we indicated that the federal

rules do not have an irreparable damage

standard. For occupied dwellings and

non-commercial structures, the federal

rules apply a no material damage

standard for non-planned subsidence

and, a minimize damage standard for

planned subsidence (unless waived by

the owner) [see sections 30 CFR

784.20(b)(7), 817.121(a)(1), and

817.121(a)(2)]. Under OSM regulations

for non-planned subsidence,

subsidence-related material damage

must be prevented (see 30 CFR

817.121(a)(1)) for all structures and

features. We indicated that the

Pennsylvania regulations do not require

the prevention of material damage for

occupied dwellings and noncommercial structures (except those

specifically protected under 25 Pa. Code

89.142a(c): public buildings and

facilities, churches, schools, etc., which

is the same as OSM’s list at 30 CFR

817.121(d)).

In its response letter to us dated June

1, 2000, Pennsylvania indicated that:

Section 817.121 does not unequivocally

require permittees to prevent material

damage to occupied dwellings. It only

requires prevention of material damage to the

extent technologically and economically

feasible. If prevention of material damage is

not technologically feasible, the permittee

need not prevent material damage. More

importantly, the federal regulation provides

that material damage need not be prevented

if it is not economically feasible. The federal

regulation clearly provides for economics to

determine whether preventive measures are

employed instead of the repair or

compensation remedy. Similarly, under

Pennsylvania’s regulation a permittee will

prevent the material damage from occurring

if it is more cost effective than paying for

repairs or compensation. The Pennsylvania

regulation is actually more effective at

protecting homes than the federal regulation,

because the federal regulation allows for

economics to always be the determining

factor as to whether any damage prevention

measures will be employed by the permittee

regardless of the magnitude of damage. The

Pennsylvania regulation prohibits economics

from being the determinative factor if

subsidence will cause irreparable damage. If

Pennsylvania determines that the proposed

mining will result in irreparable damage to

occupied dwellings and appurtenant

structures or agricultural structures, it will

notify the operator that the proposed mining

will not be allowed to occur unless the

structure owner consents to the damage or

the mine operator agrees to take surface

measures to minimize or reduce the level of

expected damage. See section 89.141(d)(6)

and section 89.142a(d).

The federal regulation at 30 CFR

784.20(b)(5) requires a description of the

measures to prevent or minimize

subsidence damage to structures. The

federal regulation at 30 CFR 784.20(b)(7)

requires that, with certain exceptions,

when planned subsidence is projected

to be used, the subsidence control plan

is to contain a description of the

methods to be employed to minimize

damage from subsidence to noncommercial buildings and occupied

residential dwellings. Neither the

Pennsylvania statute nor the

Pennsylvania regulations state the

requirement that an operator must

prevent and/or minimize for material

damage to occupied residential

dwellings and community or

institutional buildings not included in

25 Pa. Code 89.141(d)(3) (see

Pennsylvania’s response to section

9.1(b) and 28 Pa.B. 2768, ‘‘[d]wellings

* * * are protected against irreparable

damage but not against lesser levels of

damage.’’).

The Director is approving 25 Pa. Code

89.141(d)(6) to the extent that it

provides a description of measures to

prevent irreparable damage. However, to

the extent the damage to occupied

residential dwellings and structures

related thereto and community or

institutional buildings are not protected

in 25 Pa. Code 89.141(d)(3) and they are

materially damaged but not irreparably

damaged, the Director is requiring

Pennsylvania to amend 25 Pa. Code

89.141(d)(6) to insure that the

requirements of 30 CFR 784.20(b)(5) and

(b)(7) are met.

Section 89.141(d)(7). This section

requires subsidence control plans to

contain a description of the monitoring,

if any, the operator will perform to

determine the occurrence and extent of

subsidence so that, when appropriate,

other measures can be taken to prevent,

reduce or correct damage.

The Director is approving this portion

of the amendment because it is no less

effective than 30 CFR 784.20(b)(4),

which requires the subsidence control

plans to contain a description of

monitoring needed to determine the

commencement and degree of

subsidence so that measures can be

taken to prevent, reduce or correct

material damage.

Section 89.141(d)(8). This section

requires subsidence control plans to

contain a description of the measures to

be taken to maximize mine stability and

maintain the value and reasonably

foreseeable use of the surface land.

There is no federal regulation that

directly corresponds to this provision.

The Director is approving this section

because its purpose is in keeping with

the federal requirements that a

permittee adopt measures that will

maximize mine stability and maintain

the value and reasonably foreseeable use

of surface lands found in 30 CFR

817.121(a)(1). Additionally, the

information required in the subsidence

control plan by 25 Pa. Code 89.141(d)(8)

is consistent with the federal regulation

at 30 CFR 784.20(b)(9), which allows the

regulatory authority to require

information to demonstrate that the

operation will be conducted in

accordance with 30 CFR 817.121.

Section 89.141(d)(9). Under this

subsection, Pennsylvania requires a

description of measures, and discussion

of the effectiveness of such measures,

that will be taken to maintain the value

and foreseeable uses of perennial

streams that may be impacted by

underground mining. The Director is

approving this section because it

provides information similar to that in

previously approved 25 Pa. Code

89.141(d)(2), which required a

discussion of perennial streams based

on 25 Pa. Code 89.143(d)(1). Section

89.141(d)(9) is also consistent with the

requirements of 30 CFR 784.20(b)(8),

which calls for the permit subsidence

control plan to contain a description of

the measures to be taken to mitigate any

subsidence-related material damage to

the land (including perennial streams).

However, the Director is requiring this

section to be amended because of the

use of the term ‘‘underground mining.’’

Please see the combined finding

regarding use of the term ‘‘underground

mining’’ as opposed to ‘‘underground

mining operations’’ at the end of the

regulation section for more information.

Section 89.141(d)(10). This section

requires the subsidence control plan to

include a description of the measures to

be taken to prevent material damage to

perennial streams and aquifers that

serve as a significant source to a public

water supply system. The Director is

approving this section because it

provides information similar to that in

previously approved 25 Pa. Code

89.141(d)(2), which required a

discussion regarding the protection of

perennial streams and aquifers that

serve as a significant source to a public

water supply system based on 25 Pa.

Code 89.143(b). The Director also finds

25 Pa. Code 89.141(d)(10) is consistent

with the requirements of 30 CFR

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67035

817.121(d), which calls for the

protection of any aquifer or body of

water that serves as a significant water

source for a public water supply system.

Section 89.141(d)(11). This section

requires subsidence control plans to

include a description of utilities and a

description of the measures to be taken

to minimize damage, destruction, or

disruption of utility service. There is no

federal regulation that corresponds

directly to this portion of

Pennsylvania’s program. However, it is

consistent with 30 CFR 817.180, which

requires that all underground mining

activities must be conducted in a

manner that minimizes damage,

destruction or disruption of services

provided by wells, pipelines, railroads,

electric and telephone lines, and water

and sewage lines. It is also consistent

with 30 CFR 784.20(b)(9), which

requires subsidence control plans to

contain information specified by the

regulatory authority necessary to

demonstrate that the operation will be

conducted in accordance with 30 CFR

817.121. The Director is approving this

section.

Section 89.142. Pennsylvania is

deleting this entire section that required

a permittee to submit a general mine

map and a six-month map. These

provisions have been moved, with some

modifications, to 25 Pa. Code 89.154.

The modifications include removal of

reference to structures in place as of

April 27, 1966. Pennsylvania replaced

those provisions with requirements that

mine maps include the structures listed

in 25 Pa. Code 89.142a(f)(1)(i)–(iv) as

well as dwellings, public buildings and

facilities, churches, schools, and

hospitals. The Director is approving the

deletion of 25 Pa. Code 89.142 because

the deletion of references to April 27,

1966, provides protections no less

effective than those found in the federal

regulations and because the remaining

provisions of 25 Pa. Code 89.142 can be

found in 25 Pa. Code 89.154.

Section 89.142a(a). This section

requires underground mining to be

planned and conducted in accordance

with requirements found in subsections

(1) through (4). The Director is requiring

this section to be amended because of

the use of the term ‘‘underground

mining.’’ Please see the combined

finding regarding use of the term

‘‘underground mining’’ as opposed to

‘‘underground mining operations’’ at the

end of the regulation section for more

information.

Section 89.142a(a)(1). This section

requires underground mining to be

planned and conducted in accordance

with the subsidence control plan and

the postmining land use requirements in

25 Pa. Code 89.88. There is no direct

counterpart in federal regulations to this

section. The Director is approving 25 Pa.

Code 89.142a(a)(1) because it is

consistent with the requirements of 30

CFR 784.20(b), which requires

subsidence control plans as part of the

permit application if premining surveys

show that subsidence damage would

occur and 30 CFR 773.11, which

requires permits for operators to engage

in mining operations.

Section 89.142a(a)(2). This section

requires underground mining to be

planned and conducted in accordance

with the performance standards in

subsections (b)–(j). There is no direct

federal counterpart to this section. The

Director is approving this section

because it is consistent with the

requirements of 30 CFR 817.121, which

provide the subsidence control

performance standards to be followed

when conducting underground mining.

Section 89.142a(a)(3). This section

provides that underground mining will

not be authorized beneath structures

where the depth of overburden is less

than 100 feet unless the subsidence

control plans demonstrate that the mine

workings will be stable and that

overlying structures will not suffer

irreparable damage. There is no direct

federal counterpart. The Director is

approving this portion of the

amendment because it is consistent with

the federal regulation at 30 CFR

817.121(a)(1) that requires permittees to

adopt measures consistent with known

technology that prevent subsidence

from causing material damage,

maximize mine stability and maintain

the value and reasonably foreseeable use

of surface lands.

Section 89.142a(a)(4). This section

requires mine operators to adopt

measures to maximize mine stability.

This section also states that it does not

prohibit planned subsidence or room

and pillar mining. Section 817.121(a)(1)

of the federal rules requires operators to

maximize mine stability. Additionally,

§ 720(a)(2) of SMCRA states that nothing

in § 720 of SMCRA shall prohibit

underground coal mining operations.

Therefore, this provision is not

inconsistent with the requirements of

SMCRA and the federal regulations and

the Director is approving it.

Section 89.142a(b). This section lists

the requirements for conducting surveys

of protected structures and the

conditions that relieve an operator from

conducting a survey. As noted in the

December 22, 1999, Federal Register (64

FR 71652), OSM suspended the portion

of 30 CFR 784.20(a)(3) that required a

specific structural condition survey of

all EPAct protected structures. We

suspended this regulation to make our

rules consistent with a decision of the

U.S. Court of Appeals for the District of

Columbia Circuit [National Mining

Association v. Babbitt, 173 F.3d 906

(1999)]. However, state regulatory

authorities have the option of retaining

the premining surveys. Pennsylvania

has not indicated that it wishes to

eliminate the survey requirements.

Since there is no federal counterpart

and because the survey will provide

additional information to the regulatory

authority, the Director is approving 25

Pa. Code 89.142a(b) and the related

subsections (b)(1)(i)–(v) and (b)(2)(i)–

(iii). This section is not inconsistent

with the requirements of SMCRA and

the federal regulations. The Director

does note that Pennsylvania may be

required to submit a program

amendment to conform with any future

federal rules regarding structure

surveys.

Section 89.142a(c)(1). This section

provides that no underground mining

shall be conducted beneath or adjacent

to public buildings and facilities,

churches, schools and hospitals,

impoundments with a storage capacity

of 20 acre-feet (2.47 hectare-meters) or

more, or bodies of water or aquifers that

serve as significant sources to public

water supply systems unless the

subsidence control plan demonstrates

that subsidence will not cause material

damage to, or reduce the foreseeable use

of, the structures. This provision is

similar to section 9.1(c) (52 P.S.

1406.9a(c)) of the BMSLCA that the

Director approved. However, there is a

difference in the language between

Pennsylvania’s statute and its

regulation. The regulation only restricts

underground mining beneath or

adjacent to the listed facilities, while the

statute restricts underground mining

activities beneath or adjacent to the

listed facilities. This is significant

because the federal regulations (as noted

in the definition of underground mining

activities at 30 CFR 701.5) restrict

surface operations incident to

underground extraction of coal or in situ

processing, such as construction, use,

maintenance, and reclamation of roads,

above-ground repair areas, storage areas,

processing areas, shipping areas, areas

upon which are sited support facilities

including hoist and ventilating ducts,

areas utilized for the disposal and

storage of waste, and areas on which

materials incident to underground

mining operations are placed. The

Pennsylvania regulation would restrict

only underground mining which is

defined in the Pennsylvania regulations

67036 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

at 25 Pa. Code 89.5 as the extraction of

coal in an underground mine. However, the Director is approving

this section of the regulations because

the statutory language of section 9.1(c)

(52 P.S. 1406.9a(c)) of the BMSLCA is

controlling over the conflicting language

of the regulation. Accordingly, the

Director finds that 25 Pa. Code

89.142a(c)(1), when read in conjunction

with section 9.1(c) (52 P.S. 1406.9a(c))

of the BMSLCA, is no less effective than

the federal regulations at 30 CFR

817.121(d).

Section 89.142a(c)(2)(i)–(v). This

section lists the measures to be adopted

by the operator to comply with 25 Pa.

Code 89.142a(c)(1). The requirements

include limiting the percentage of coal

extracted, specifications on the size and

configuration of the support area,

backfilling or backstowing of voids,

leaving areas in which no coal

extraction will occur, and initiating a

monitoring program to detect surface

movement. The Director is approving

subsections 89.142a(c)(2)(i) (A)–(D), (ii),

(iii), (iv), and (v) because these

requirements are substantively the same

or no less effective than the federal

requirements at 30 CFR 784.20(b)(5). Section 89.142a(c)(2)(vi). This

subsection requires a monitoring

program to detect surface movement

resulting from underground mining. The

monitors are to be placed sufficiently in

advance of the underground mining so

that it can be stopped before protected

structures or features are damaged. In our letter to Pennsylvania of June

21, 1999, we indicated that this section

appears to be less effective than the

federal regulations because it does not

require monitoring in conformance with

30 CFR 784.20(b)(4) of occupied

dwellings, non-commercial structures

and surface lands.

In its response of June 1, 2000,

Pennsylvania indicated that:

30 CFR 784.20(b)(4) provides that an

application shall contain a description of the

monitoring, if any, needed to determine the

extent of subsidence that may occur so that

appropriate mitigation measures can be

implemented. It does not, as OSM suggests in

its comment, ‘‘require’’ monitoring. In any

event, section 89.142a(c)(2)(vi) was not

intended to implement the provisions of

§ 784.20(b)(4). Instead, section 89.141(d)(7)

(which virtually mirrors the federal

regulation) is designed to do so. Clearly,

section 89.141(d)(7) is as effective as

§ 784.20(b)(4) in regard to the monitoring of

occupied dwellings, noncommercial

structures and surface land.

There is no direct counterpart in

federal regulations to this section. The

Director agrees with Pennsylvania’s

explanation and is approving this

section with regard to the monitoring

program because the monitoring

required will help operators and

Pennsylvania to determine if subsidence

is likely to affect protected structures

and features and is consistent with the

federal regulations in providing

protection to those structures or

features.

Section 89.142a(c)(3). This subsection

states that if the measures implemented

by the operator cause material damage

or reduce the reasonably foreseeable use

of structures or features listed in

paragraph (1), the department will

impose additional measures to

minimize the potential for these effects.

In our letter to Pennsylvania dated June

21, 1999, we indicated that the federal

rule at 30 CFR 817.121(e) states that if

there is material subsidence damage to

structures listed in 30 CFR 817.121(d),

then the regulatory authority may

suspend mining under or adjacent to

such structures or facilities until the

subsidence control plan is modified to

ensure prevention of further material

damage. Section 30 CFR 784.20(b)(4)

requires the subsidence control plan to

contain, ‘‘A description of the

monitoring, if any, needed to determine

the commencement and degree of

subsidence so that, when appropriate,

other measures can be taken to prevent,

reduce or correct material damage in

accordance with § 817.121(c) of this

chapter.’’ When taken together, the

EPAct sections mean that the prevention

of material damage (and not ‘‘minimize

the potential’’) standard is in place. We

further indicated to Pennsylvania that

this section appears to be less effective

than the federal regulations because it

does not include the option for

Pennsylvania to suspend mining or have

the subsidence control plan modified to

ensure prevention of further material

damage. In its response to us of June 1, 2000,

Pennsylvania indicated that:

OSM has intertwined various regulatory

sections resulting in a misinterpretation of

the federal regulations to assert a standard

that does not exist and is not supported by

the federal regulations. Although the

language of section 89.142a(c)(3) differs

somewhat from that of 30 CFR 817.121(e), the

intended result is the same—increased

protection of public buildings, etc. that are

susceptible to damage by mine subsidence.

Therefore, the Pennsylvania regulation is as

effective as the federal regulation. In order for

the provisions of section 89.142a(c)(3) to

come into play, the measures previously

proposed by the operator and approved by

DEP must have failed to adequately protect

one or more of the structures or features

listed in paragraph (c)(1). At that point it is

necessary to impose additional restrictions or

require additional protective measures to

ensure that other protected structures or

features will not be materially damaged by

subsidence. Since it could be argued that the

failed measures were designed to ‘‘prevent

material damage,’’ a new standard providing

greater protection must be targeted. In setting

this standard, DEP chose the phrase

‘‘minimize the potential for these effects’’ to

clarify that new measures must be proposed

and that these measures must be sufficient to

further reduce the likelihood of effects

similar to those observed.

OSM agrees with Pennsylvania that

25 Pa. Code 89.142a(c)(3) and 30 CFR

817.121(e) increase protection of the

structures and surface features at 25 Pa.

Code 89.142a(c)(1) and 30 CFR

817.121(d), respectively. However, 30

CFR 817.121(e) imposes on the

regulatory authority the obligation to

require permittees to modify subsidence

control plans to ensure the prevention of

further material damage in the cases

where the initial plan or operator’s

actions fail. In addition, 30 CFR

817.121(e) provides the authority to

suspend mining until such a plan is

approved. Pennsylvania’s response to

OSM did not establish that the

regulations at 25 Pa. Code 89.142a(c)(3)

allow Pennsylvania the discretion to

suspend mining until the operator’s

subsidence control plan ensures the

prevention of further material damage.

Pennsylvania’s regulation merely

requires additional measures to

minimize the effects, but does not give

Pennsylvania the option to stop the

mining until Pennsylvania reviews the

additional measures and determines

that the measures will minimize the

effects. The Director is requiring

Pennsylvania to amend its regulations to

address the requirement.

Section 89.142a(d). This section

provides that if the Department

determines and notifies a mine operator

that a proposed mining technique or

extraction ratio will result in irreparable

damage to a structure in subsection

(f)(1)(iii)–(v), the operator may not use

the technique or extraction ratio unless

the building owner, prior to mining,

consents to the mining or the operator,

prior to mining, takes measures

approved by the Department to

minimize or reduce the impacts

resulting from subsidence to these

structures. The federal regulations at 30

CFR 817.121(a) require that operations,

depending on the type, must either

prevent or minimize material damage to

occupied residential dwellings and

community or institutional buildings.

The federal regulations do not provide

for an irreparable damage standard. As

a result, the provisions of this section

are no less effective than the federal

regulations regarding structures in

danger of being irreparably damaged,

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67037

but it is less effective in regard to

structures that may be materially

damaged because it provides no

protection for those structures. While

this section can be approved for

structures in danger of being irreparably

damaged, the Director is requiring

Pennsylvania to amend its program to

insure that structures in danger of being

materially damaged are protected also.

Section 89.142a(e). This section

requires operators to correct material

damage to surface lands resulting from

subsidence to the extent technologically

and economically feasible. In our letter

of June 21, 1999, to Pennsylvania we

noted that this section did not require,

as 30 CFR 817.121(c)(1) does, the

permittee to restore the land ‘‘to a

condition capable of maintaining the

value and reasonably foreseeable uses

that it was capable of supporting before

subsidence damage.’’

In its response to us of June 1, 2000,

Pennsylvania stated that the operator is

required to correct material damage as

defined by 25 Pa. Code 89.5 and that

since the definition of ‘‘material’’

includes those components required in

30 CFR 817.121(c)(1), when 25 Pa. Code

89.142a(e) is read in conjunction with

25 Pa. Code 89.5, it is as effective as 30

CFR 817.121(c)(1).

The Director agrees with

Pennsylvania’s interpretation and is

approving this section because when it

is read in conjunction with 25 Pa. Code

89.5, it is no less effective than 30 CFR

817.121(c)(1) regarding correction of

material damage to surface lands.

Section 89.142a(f)(1). This section

requires correction of damage to

protected structures from underground

mining conducted on or after August 21,

1994. The federal regulations at 30 CFR

817.121(c)(1) and (2) state that the

permittee must correct any material

damage resulting from subsidence

caused to surface lands or structures.

Pennsylvania’s definition of

underground mining only relates to

extraction of coal, therefore subsidence

from other underground mining

activities (such as underground

construction, operation and reclamation

of shafts, adits, underground support

facilities, in situ processing, and

underground hauling, storage, and

blasting) would not be covered. As a

result, this portion of the amendment is

less inclusive than the federal

regulations that require repair of

structures damaged by subsidence. The

Director is requiring Pennsylvania to

amend this section to insure that

protected structures damaged by

subsidence are repaired. Please see the

combined finding regarding use of the

term ‘‘underground mining’’ as opposed

to ‘‘underground mining operations’’ at

the end of the regulation section for

more information.

Additionally, this section is not as

effective as 30 CFR 817.121(c), which

requires permittees to promptly repair

or compensate owners for material

damage caused by subsidence. Section

89.142a(f)(1) does not contain any

standard requiring operators to show a

diligent and timely effort in repairing

structures or compensating landowners

for subsidence damage. For further

information on the standard requiring

prompt repair or compensation, see the

Director’s decision on section 5.4 of the

BMSLCA. The Director is requiring this

section to be amended to be no less

effective than 30 CFR 817.121(c) in

requiring prompt repair or

compensation to landowners.

Section 89.142a(f)(1)(i) and (ii). These

sections list the type of structures that

operators are responsible for repairing

or providing compensation for damages

to landowners when underground

mining causes subsidence damage.

Subsections (i) and (ii) are nearly

identical to the statutory sections of

5.4(a)(1) and (a)(2). Therefore, the

findings for 5.4(a)(1) and (a)(2) are

incorporated herein by reference and

the Director is approving subsection (i)

and (ii).

Section 89.142a(f)(1)(iii). This section

provides for compensation for damage

to dwellings that are used for human

habitation and permanently affixed

appurtenant structures or improvements

in place on August 21, 1994, or on the

date of first publication of the

application for a coal mining activity

permit or a 5-year renewal thereof for

the operations in question and within

the boundary of the entire mine as

depicted in the application. This section

is similar to section 5.4(a)(3) of the

BMSLCA. In section 5.4(a)(3) the

Director did not approve the language ‘‘

* * * in place on the effective date of

this section or on the date of first

publication of the application for a Mine

Activity Permit or a five-year renewal

thereof for the operations in question

and within the boundary of the entire

mine as depicted in said application.’’

For the same reasons, the Director is not

approving the language, ‘‘ * * * or on

the date of first publication of the

application for a coal mining activity

permit or a 5-year renewal thereof for

the operations in question and within

the boundary of the entire mine as

depicted in the application,’’ from 25

Pa. Code 89.142a(f)(1)(iii).

Section 89.142a(f)(1)(iv) and (v).

These sections address agricultural

structures that are protected under

Pennsylvania’s program. Pursuant to 30

CFR 817.121(c)(3), repair or

compensation for material damage to

agricultural structures is required to the

extent allowed under state law. The

Director is approving these sections

because they protect structures not

covered under federal regulations and

they are consistent with 30 CFR

817.121(c)(3).

Section 89.142a(f)(2)(i). This section

provides for compensation to

landowners for subsidence damages to

structures rather than repair. The federal

regulations require the compensation to

be in the full amount of the decrease in

value of the structure resulting from the

subsidence. Pennsylvania’s amendment

provides that compensation is to be

equal to the reasonable cost of repairing

the structure or if the structure is

determined to be irreparably damaged,

the compensation shall be equal to the

reasonable cost of its replacement.

These standards for compensation are

the same as those in 5.4(a) (52 P.S.

1406.5d(a)) of BMSLCA. Therefore, the

finding for 5.4(a) (52 P.S. 1406.5d(a)) is

incorporated herein by reference and

the Director is approving this portion of

the regulation.

The Pennsylvania amendment also

discusses damage to agricultural

structures. Pursuant to 30 CFR

817.121(c)(3), repair or compensation

for material damage to agricultural

structures is required to the extent

allowed under state law. The Director is

approving this portion of the

amendment because it provides for

protection for structures that are not

protected under the federal regulations

and is consistent with 30 CFR

817.121(c)(3).

However, the Director is requiring this

section to be amended because of the

use of the term ‘‘underground mining.’’

Please see the combined finding

regarding use of the term ‘‘underground

mining’’ as opposed to ‘‘underground

mining operations’’ at the end of the

regulation section for more information.

Section 89.142a(f)(2)(ii). This section

provides for operators to compensate

occupants of covered structures for

payment of reasonable, actual expenses

incurred during temporary relocation.

The section further provides that the

operator shall also compensate the

occupants for other actual reasonable

incidental costs agreed to by the parties

or approved by the Department.

There is no direct federal counterpart

for this regulation. This portion of the

amendment affords a benefit to

occupants of subsidence-damaged

structures that goes beyond the

protections in the federal regulations.

The Director finds that the section is not

inconsistent with the requirements of

67038 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

SMCRA and the federal regulations and

is approving it.

Section 89.142a(g)(1). Subsection (1)

provides that underground mining must

be planned and conducted in a manner

that minimizes damage, destruction or

disruption in services provided by

utilities. Underground mining is defined

in Pennsylvania’s regulations as the

extraction of coal in an underground

mine. The federal rule at 30 CFR

817.180 requires that all underground

mining activities, not just underground

mining, must be planned and conducted

in a manner that minimizes damage,

destruction or disruption in services

provided by utilities. The federal

definition of underground mining

activities is a combination of two parts.

The first includes surface operations

incident to underground extraction of

coal or in situ processing, such as

construction, use, maintenance, are

reclamation of roads, above-ground

repair areas, storage areas, processing

areas, shipping areas upon which are

sited support facilities including hoist

and ventilation ducts, areas utilized for

the disposal and storage of waste, and

areas on which materials incident to

underground mining are placed. The

second part includes underground

operations such as underground

construction, operation and reclamation

of shafts, adits, underground support

facilities, in situ processing, and

underground mining, hauling, storage,

and blasting. Thus, the federal rule is

more inclusive of the activities that

must be conducted in a manner that

minimizes damage, destruction or

disruption in services.

The Director is approving this section

to the extent that underground mining

must be planned and conducted in a

manner that minimizes damage,

destruction or disruption to utilities.

However, the Director is requiring

Pennsylvania to amend its program to

require all underground mining

activities be conducted in a manner

consistent with 30 CFR 817.180.

Section 89.142a(g)(2). Subsection (2)

provides a list of measures an operator

may take to minimize damage,

destruction or disruption in services

from utilities listed in 25 Pa. Code

89.142a(g)(1). There is no direct federal

counterpart to this regulation. The

Director is approving this section

because it lists specific measures

operators may implement to insure that

utilities can continue to provide their

services. These measures are not

inconsistent with the requirements of

SMCRA and the federal regulations.

Section 89.142a(g)(3). This section

provides that a mine owner shall take

measures to minimize damage to

customer-owned gas and water service

connections. In our letter of June 21,

1999, we noted that since customerowned gas and water service

connections are part of a residential

dwelling (see definition of

‘‘permanently affixed appurtenant

structures’’ at 25 Pa. Code 89.5),

Pennsylvania should require the

prevention of subsidence from causing

material damage to the extent feasible

for non-planned subsidence and

minimize, repair and compensate for

planned subsidence.

In its response to us of June 1, 2000,

Pennsylvania noted:

Under Pennsylvania’s program a mine

operator must either remove enough coal to

induce planned subsidence or leave support

that will maximize mine stability. If mining

will result in planned subsidence, a mine

operator is required to take measures to

minimize damage to customer-owned gas and

water service connections, unless the

property owner does not consent to allow the

measure to be taken. If mining will not result

in planned subsidence, the workings must be

designed to remain stable in accordance with

section 89.142a(a)(4), thereby precluding

material damage that would result from

unplanned subsidence.

The Director is approving this portion

of the amendment. The federal rule at

30 CFR 817.121 requires the permittee

to prevent (to the extent it is

technologically and economically

feasible) damage when the mining does

not result in unplanned subsidence. The

federal rule at 30 CFR 817.121(a)(2)

requires minimization of subsidence

damage for occupied residential

dwellings and structures related thereto,

which by definition includes utilities.

The exception to this minimization

requirement is if the permittee has the

written consent of the owner. Since 25

Pa. Code 89.142a(a)(4) prohibits

material damage whenever there is

unplanned subsidence and 25 Pa. Code

89.142a(g)(3) requires an operator to

minimize damage to customer utility

connections unless the owner prohibits

such measures, these sections together

protect customer-owned gas and water

service connections to the extent

required by the federal regulations and

are no less effective than the federal

regulations.

Section 89.142a(g)(4). This section

requires the Department to suspend or

restrict underground mining if it

determines that mining beneath or

adjacent to a utility will present an

imminent hazard to human safety. In

our letter to Pennsylvania of June 21,

1999, we indicated that the federal rules

at 30 CFR 817.121(f) do not have the

option of restricting underground

mining but provide only for suspension

of underground mining activities in

imminent hazard situations. While the

federal regulations require suspension

of underground mining beneath or

adjacent to a utility if it presents an

imminent hazard to human safety, the

Pennsylvania rules would allow the

Department to restrict mining in this

situation. The term ‘‘restrict’’ denotes

that mining, in some fashion, could

continue. By providing the option to

allow mining to continue, this section

appears to be less effective than the

federal regulations.

In its response to us of June 1, 2000,

Pennsylvania indicated that in writing

its regulations, PADEP decided to use

the term ‘‘restrict’’ rather than the term

‘‘suspend’’ in describing the appropriate

action to be taken when an imminent

hazard is recognized. The term

‘‘restrict’’ can be applied to limit the

percentage of coal extracted where there

is a need to prevent subsidence that

would, in turn, give rise to a hazardous

situation. The term ‘‘restrict’’ can also

be applied to prevent mining from

encroaching into a specified area or

delay mining until damage prevention

measures are taken at the land surface.

By contrast, the term ‘‘suspend,’’ as

defined by Webster’s Dictionary, only

seems to imply a temporary cessation of

mining. PADEP believes its choice of

terms more clearly indicates there must

be a final outcome in which there is no

imminent hazard to human safety

resulting from mining. Irrespective of

the term used, PADEP believes that both

the Pennsylvania and the federal

regulation are applied in the same

manner to prevent imminent hazards to

human safety.

Based on Pennsylvania’s

interpretation of the word ‘‘restrict,’’ the

Director is approving this regulation. In

effect, this would give Pennsylvania

authority to suspend operations when

necessary. In this manner, the

Pennsylvania program will be no less

effective than the federal program with

regard to suspension of operations that

could involve imminent harm

situations.

Section 89.142a(h)(1) and (2). Section

89.142a(h)(1) formerly appeared at 25

Pa. Code 89.143(d)(1). Section

89.143(d)(1) was deleted by this

amendment and its provisions moved,

with some modification, to 25 Pa. Code

89.142a(h)(1). The provision read, prior

to deletion, ‘‘[U]nderground mining

activities shall be planned and

conducted in a manner which maintains

the value and reasonably foreseeable

uses of perennial streams, such as

aquatic life, water supply and

recreation, as they existed prior to

mining beneath streams.’’ The provision

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67039

at 25 Pa. Code 89.142a(h)(1) deletes the

word ‘‘activities’’ and changes ‘‘mining

beneath streams’’ to ‘‘coal extraction

beneath streams.’’

Section 89.142a(h)(2) formerly

appeared at 25 Pa. Code 89.143(d)(3).

Section 89.143(d)(3) was deleted by this

amendment and its provisions moved,

with some modifications, to 25 Pa. Code

89.142a(h)(2). The provision read, prior

to deletion, ‘‘[I]f the Department finds

that the measures have adversely

affected a perennial stream, the operator

shall meet the requirements of [section]

89.145(a) (relating to surface owner

protection) and file revised plans or

other data to demonstrate that future

activities will meet the requirements of

paragraph (1).’’ The section now reads,

‘‘[I]f the Department finds that

underground mining has adversely

affected a perennial stream, the operator

shall mitigate the adverse effects to the

extent technologically and economically

feasible, and, if necessary, file revised

plans or other data to demonstrate that

future underground mining will meet

the requirements of paragraph (1).’’ As

can be seen, there are two changes to

this section: (1) the revised regulation

defines the operator’s responsibility to

mitigate adverse effects to perennial

streams to the extent technologically

and economically feasible, and (2)

substituting the phrase ‘‘underground

mining’’ for ‘‘future activities.’’

The Director is approving the change

in 25 Pa. Code 89.142a(h)(2) regarding

the operator’s responsibility to mitigate

adverse effects to perennial streams.

Under federal requirements, perennial

streams are a component of surface

lands and are regulated relative to

planned and unplanned subsidence. See

60 FR at 16725. For unplanned

subsidence (30 CFR 784.20(b)(5)),

permittees must take measures on the

surface to prevent or minimize material

damage or diminution in value of the

surface. For planned subsidence,

material damage does not have to be

prevented; however, the permittee must

correct any material damage resulting

from subsidence caused to surface

lands, to the extent technologically and

economically feasible, by restoring the

land to a condition capable of

maintaining the value and reasonably

foreseeable uses that it was capable of

supporting before subsidence damage

(817.121(c)(1)). Since 25 Pa. Code

89.142a(h) requires underground mining

to be planned and conducted in a

manner that maintains the value and

reasonably foreseeable use of perennial

streams and for adverse effects to be

mitigated to the extent technologically

and economically feasible, the Director

is approving this portion of the

amendment because it is no less

effective than the requirements at 30

CFR §§ 784.20(b)(5), 784.20(b)(8) and

817.121(c)(1).

However, the Director is requiring

both subsections (h)(1) and (h)(2) to be

amended because of the use of the term

‘‘underground mining.’’ Please see the

combined finding regarding use of the

term ‘‘underground mining’’ as opposed

to ‘‘underground mining operations’’ at

the end of the regulation section for

more information.

Section 89.142a(i). This section

provides situations where the

Department will suspend underground

mining if the operations present an

imminent danger to the public.

Pennsylvania’s regulations are no less

stringent than § 516(c) of SMCRA and

30 CFR 817.121(f) since they both

require the suspension of underground

mining under urbanized areas, cities,

towns, and communities and adjacent to

industrial or commercial buildings,

major impoundments, or perennial

streams. In addition, Pennsylvania

extends the same protection to lined

solid and hazardous waste disposal

areas. However, the Director is requiring

subsection (1) to be amended because of

the use of the term ‘‘underground

mining.’’ Please see the combined

finding regarding use of the term

‘‘underground mining’’ as opposed to

‘‘underground mining operations’’ at the

end of the regulation section for more

information.

Section 89.142a(j). This section

provides that underground mining is

prohibited under an area that is not

included within a subsidence control

plan that has been submitted and

approved by the Department. There is

no direct corresponding federal

regulation to this section. The Director

is approving this portion of the

amendment because it is not

inconsistent with the federal regulations

at 30 CFR 784.20 requiring a subsidence

control plan as part of the permit

application.

Section 89.142a(k). This section

provides the steps operators must take

when they receive a claim of subsidence

damage to a structure or surface feature.

There is no direct corresponding federal

counterpart to this section. Since this

section establishes procedures for

operators to contact the regulatory

authority and will insure that any

complaints that are received by an

operator will be forwarded to the

regulatory authority in a timely manner,

the Director finds that this section is not

inconsistent with the requirements of

SMCRA and the federal regulations. The

Director is approving this portion of the

amendment.

Section 89.142a(l). This section

prohibits the Department from

adjudicating property rights disputes

between mine operators and other

parties. Section 507(b)(9) of SMCRA

states in part that nothing in SMCRA

‘‘shall be construed as vesting in the

regulatory authority the jurisdiction to

adjudicate property title disputes.’’ The

Director finds that this section is in

accordance with SMCRA because it

does not give PADEP the authority to

adjudicate property rights. The Director

is approving this section.

Section 89.143(a). This section

provided performance standards for

operators to follow when conducting

underground mining activities. This

section has been deleted with

provisions (a)(1), (2), and (4) moved,

with some minor modifications, to 25

Pa. Code 89.142a(a)(1), (2), and (4)

respectively. Section 89.143(a)(3) was

modified and moved to 25 Pa. Code

89.142a(a)(3). Section 89.143(a)(3) stated

that no underground mining activity

will be authorized beneath structures

where the depth of overburden is less

than 100 feet, with the exception of

mine-related openings to the surface

such as entries, shafts and boreholes

and site specific variances for entry

development as approved by the

Department. In moving this section,

Pennsylvania kept the prohibition of

mining beneath structures where the

overburden is less than 100 feet, but

deleted the exceptions and replaced

them with the phrase ‘‘unless the

subsidence control plan demonstrates to

the Department’s satisfaction that the

mine workings will be stable and that

overlying structures will not suffer

irreparable damage.’’ The Director is

approving the deletion of 25 Pa. Code

89.143 because the requirements of

subsections (a)(1), (2), and (4) remain as

part of the Pennsylvania program and

the modification of subsection (a)(3) as

found in 25 Pa. Code 89.142a(a)(3) has

been approved. However, the Director is

requiring Pennsylvania to amend its

program at 25 Pa. Code 89.142a(a) to

take into account underground mining

operations when describing

performance standards for operators to

follow.

Section 89.143(b)(1). This section has

been deleted with its provisions

modified and moved to 25 Pa. Code

89.142a(c)(1). Section 89.143(b)(1)

required underground mining activities

to be planned and conducted in a

manner that prevents subsidence

damage to: (i) public buildings and

noncommercial structures customarily

used by the public, including churches,

schools and hospitals, (ii) dwellings,

cemeteries, municipal public service

67040 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

operations and municipal utilities in

place on April 27, 1966, (iii)

impoundments and other bodies of

water with a storage capacity of 20 acre

feet or more, (iv) aquifers, perennial

streams and bodies of water which serve

as a significant source for a public water

supply system as defined in the

Pennsylvania Safe Drinking Water Act

(35 P.S. section 721.1–721.17), and (v)

coal refuse disposal areas authorized by

permits issued under Chapter 90

(relating to coal refuse disposal).

The section as it was modified and

moved to 25 Pa. Code 89.142a(c)(1) now

reads, ‘‘Unless the subsidence control

plan demonstrates that subsidence will

not cause material damage to, or reduce

the reasonably foreseeable use of the

structures and surface features listed in

subparagraphs (i)–(v), no underground

mining shall be conducted beneath or

adjacent to: (i) Public buildings and

facilities, (ii) Churches, schools and

hospitals, (iii) Impoundments with a

storage capacity of 20 acre-feet (2.47

hectare-meters) or more, (iv) Bodies of

water with a volume of 20 acre-feet

(2.47 hectare-meters) or more, and (v)

Bodies of water or aquifers which serve

as significant sources to public water

supply systems.’’ The Director is

approving the deletion of 25 Pa Code

89.143(b)(1) because it provided more

comprehensive protections than the

federal regulations.

Section 89.143(b)(2). This section was

deleted in its entirety. Prior to deletion,

this section listed the damages

prohibited by this subsection, including

the cracking of walls, foundations, and

monuments, the draining of aquifers,

perennial streams or other bodies of

water that serve as a significant source

for a public water supply system and

the weakening of impoundments and

embankments. The section further noted

that damage to structures described in

paragraph (1)(i) need not be prevented

if done with the consent of the current

owner. The Director is approving this

deletion because under federal rules,

such damages may be allowed to occur

if the operator promptly repairs or

compensates the landowners for the

damages or promptly provides alternate

water supplies. Deletion of this section

will not make the Pennsylvania program

less effective than the federal

regulations.

Section 89.143(b)(3). This section has

been deleted with several of its

provisions moved to 25 Pa. Code

89.142a(c)(2). The provisions that were

moved, with some minor modifications,

were: 25 Pa. Code 89.143(b)(3)(i) (A)

through (C). The remaining provisions

that were deleted were 25 Pa. Code

89.143(b)(3)(i)(D) and (ii)(A) through

(D). Section 89.143(b)(3)(i)(D) provided

that more stringent measures may be

imposed or mining may be prohibited if

the measures fail to prevent subsidence

damage. Section (ii) allowed full

extraction techniques where the

operator demonstrates that the proposed

measures are at least as effective in

prevention of subsidence damage as

those described in this subsection.

The Director is approving the deletion

of this section because 25 Pa. Code

89.143(b)(3)(i)(A) through (C) still

remain in the approved program and 25

Pa. Code 89.143(b)(3)(i)(D) and (ii)(A)

through (D) provided protections

beyond that contemplated by the federal

regulations. The deletion of 25 Pa. Code

89.143(b)(3) will not make the

Pennsylvania program less effective

than the federal regulations.

Section 89.143(c)(1). This section has

been deleted and the provisions moved

to section 25 Pa. Code 89.142a(g)(1). The

section discussed protection of utilities

and requires underground mining

activities to be planned and conducted

in a manner that minimizes damage,

destruction or disruption in services

provided by utilities. When the section

was moved to 25 Pa. Code 89.142a(g),

Pennsylvania dropped the word

‘‘activities’’ from the phrase

‘‘underground mining activities.’’ The

Director is approving the deletion of 25

Pa. Code 89.143(c)(1), but is requiring

Pennsylvania to amend its program at

25 Pa. Code 89.142a(g)(1) to insure that

underground mining activities are

planned and conducted in a manner

that minimizes damage, destruction or

disruption in services provided by

utilities. See the Director’s decision

under 25 Pa. Code 89.142a(g)(1) for

further information.

Section 89.143(c)(2). This section was

deleted and the provisions moved with

some modifications to 25 Pa. Code

89.142a(g)(2). The section originally

indicated that the measures adopted to

minimize damage, destruction or

disruption of utility services protected

by this subsection may include, in

addition to those measures discussed in

25 Pa. Code 89.141(d), a program for

detecting subsidence damage and

avoiding disruption in services, and a

notification to the owner of the facility

that specifies when the mining activity

beneath or adjacent to the structure will

occur. When Pennsylvania moved the

section it changed the phrase ‘‘avoiding

disruption in services’’ to ‘‘minimizing

disruption in services’’ (see 25 Pa. Code

89.142a(g)(2)(i)). The federal rules at 30

CFR 817.180 require underground

mining activities to be conducted in a

manner that minimizes damage,

destruction, or disruption of services

provided by utilities. Therefore, the

Director is approving deletion of this

section because the provisions appear in

25 Pa. Code 89.142a(g)(2)(i) and (ii) and

therefore deleting this section will not

make the Pennsylvania program less

effective than the federal regulations.

Section 89.143(d)(1). This section was

deleted and the provisions moved to 25

Pa. Code 89.142a(h)(1). The provision

required, prior to deletion, underground

mining activities to be planned and

conducted in a manner that maintains

the value and reasonably foreseeable

uses of perennial streams, such as

aquatic life, water supply and

recreation, as they existed prior to

mining beneath streams. The provision

at 25 Pa. Code 89.142a(h)(1) deleted the

word ‘‘activities’’ and changed ‘‘mining

beneath streams’’ to ‘‘coal extraction

beneath streams.’’ The Director has

approved the deletion of 25 Pa. Code

89.143(d)(1), but is requiring 25 Pa.

Code 89.142a(h)(1) to be amended to be

as effective as section 720 of SMCRA

regarding underground mining

operations.

Section 89.143(d)(2). This section was

deleted in its entirety. The section,

which dealt with perennial streams,

read, ‘‘The measures to be adopted to

comply with this subsection shall be

described in the application and include

a discussion of the effectiveness of the

proposed measures as related to prior

mining activities under similar

conditions.’’ There is no federal

counterpart to this section. The Director

finds that deleting this section will not

make the Pennsylvania program less

effective than the federal regulations.

Section 89.143(d)(3). This section was

deleted and the provisions moved, with

some modifications, to 25 Pa. Code

89.142a(h)(2). The provision originally

read, ‘‘If the Department finds that the

measures have adversely affected a

perennial stream, the operator shall

meet the requirements of 25 Pa. Code

89.145(a) (relating to surface owner

protection) and file revised plans or

other data to demonstrate that future

activities will meet the requirements of

paragraph (1).’’ As found in 25 Pa. Code

89.142a(h)(2), the section now reads, ‘‘If

the Department finds that the

underground mining has adversely

affected a perennial stream, the operator

shall mitigate the adverse effects to the

extent technologically and economically

feasible, and, if necessary, file revised

plans or other data to demonstrate that

future underground mining will meet

the requirements of paragraph (1).’’ The

Director is approving the deletion of 25

Pa. Code 89.143(d)(3), but is requiring

25 Pa. Code 89.142a(h)(2) to be

amended to require operators to mitigate

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67041

the adverse effects of underground

mining operations on perennial streams.

Section 89.143(e). This section

requires underground mining activities

to be planned and conducted in a

manner that maintains the value and

reasonably foreseeable use of the

overlying surface land prior to mining.

This section has been deleted.

Pennsylvania has incorporated this

provision in the amendment at 25 Pa.

Code 89.141(d)(8), which requires the

subsidence control plan to contain a

description of the measures to be taken

to maintain the value and reasonably

foreseeable use of the surface land and

at 25 Pa. Code 89.142a(e), which

requires correction of material damage

to surface lands to the extent

technologically and economically

feasible. The Director is approving

deletion of this section because similar

provisions that are as effective as the

federal regulations in maintaining the

value and foreseeable use of surface

lands are found elsewhere in the

Pennsylvania program.

Section 89.143(f). This section has

been deleted and the provisions moved,

with some modification, to 25 Pa. Code

89.142a(i)(1). Prior to deletion, this

section was titled ‘‘Urbanized areas’’

and indicated that underground mining

activities shall be suspended beneath

urbanized areas, cities, towns and

communities, and adjacent to or beneath

industrial or commercial buildings,

solid and hazardous waste disposal

areas, major impoundments or perennial

streams, if the activities presented an

imminent danger to the inhabitants of

the urbanized areas, cities, towns or

communities. Section 89.142a(i)(1) now

states the Department will suspend

underground mining beneath urbanized

areas, cities, towns and communities

and adjacent to or beneath industrial or

commercial buildings, lined solid and

hazardous waste disposal areas, major

impoundments of 20 acre-feet (2.46

hectare-meters) or more, or perennial

streams, if the operations present an

imminent danger to the public. The

Director finds that Pennsylvania’s

deletion of 25 Pa. Code 89.143(f) and

moving of its provisions to 25 Pa. Code

89.142a(i)(1) did not make this section

less effective than the provisions of

SMCRA at section 516(c) and is

approving the deletion. However, the

Director is requiring 25 Pa. Code

89.142a(i)(1) to be amended to provide

for the suspension of underground

mining operations as per the

requirements of 30 CFR 817.121(f).

Section 89.143(g). This section has

been deleted and its provisions moved,

with some modification, to 25 Pa. Code

89.142a(j). This section provides that

underground mining activities are

prohibited under an area that is not

included within a subsidence control

plan submitted under 25 Pa. Code

89.141(d) and that has been approved by

the Department. In moving the

provision, Pennsylvania deleted the

word ‘‘activities’’ from the phrase

‘‘underground mining activities.’’ The

Director finds that deletion of this

section does not make the Pennsylvania

program any less effective than the

federal program because the provisions

of the deleted section are found

elsewhere in the Pennsylvania program

(see the Director’s finding at 25 Pa. Code

89.142a(j)).

Section 89.143a(a). This provision

requires structure owners with

subsidence damage to notify operators

of the damage. This provision is similar

to section 5.5(a) (52 P.S. 1406.5e(a)) of

the BMSLCA. The Director is approving

this provision for the same reasons as

noted in regard to section 5.5(a) (52 P.S.

1406.5e(a)) of the statute found earlier

in this rulemaking.

However the Director is requiring this

section to be amended because of the

term ‘‘underground mining.’’ Please see

the combined finding regarding use of

the term ‘‘underground mining’’ as

opposed to ‘‘underground mining

operations’’ at the end of the regulation

section for more information.

Section 89.143a(b). This subsection

provides that if the operator agrees that

mine subsidence damaged the structure,

the operator shall fully repair the

damage or compensate the owner for the

damage under either 25 Pa. Code

89.142a(f) or under a voluntary

agreement authorized by section 5.6 (52

P. S. 1406.5f) of the BMSLCA. Since this

subsection requires full repair or

compensation and merely cross

references to other statutory or

regulatory provisions, the Director finds

this section no less effective than the

federal regulations at 30 CFR 817.121,

which require repair or compensation of

material damage to structures.

Section 89.143a(c). This section

provides that if, within six months of

the date that the building owner sent the

operator notification of subsidence

damage, the parties are unable to agree

as to the cause of the damage or the

reasonable cost of repair or

compensation for the structure, the

owner may, within two years of the date

damage to the structure occurred, file a

claim in writing with the Department.

This section is substantively identical

to section 5.5(b) (52 P.S. 1406.5e(b)) of

the BMSLCA. Both the statute and the

regulation provide that a landowner

must wait for six months after notifying

an operator of subsidence damage before

filing a claim with the Department.

Section 5.5(b) (52 P.S. 1406.5e(b)) and

the proposed regulation further restricts

the period of time for a landowner to

file a complaint by requiring complaints

to be filed within two years of the date

damage occurred to a structure. The

Director has not approved the portion of

section 5.5(b) (52 P.S. 1406.5e(b)) of the

statute that states ‘‘ * * * within six

months of the date of the notice.’’ The

reasons for not approving that language

can be found under section 5.5(b) (52

P.S. 1406.5e(b)) earlier in this

rulemaking. The Director is not

approving the portion of the 25 Pa. Code

89.143a(c) that states, ‘‘* * * within 6

months of the date that the building

owner sent the operator notification of

subsidence damage to the structure

***’’ for the same reasons as noted for

section 5.5(b) (52 P.S. 1406.5e(b)) of the

statute.

Additionally, the Director has not

approved the portion of section 5.5(b)

(52 P.S. 1406.5e(b)) of the BMSLCA

requiring complaints to be filed within

two years of the date damage has

occurred to a structure. The Director is

not approving the phrase ‘‘within 2

years of the date damage to the structure

occurred * * *’’ in 25 Pa Code

89.143a(c) for the same reasons as found

in section 5.5(b) (52 P.S. 1406.5e(b)) of

the statute.

Section 89.143a(d). This section

describes the procedures the

Department will follow in conducting

an investigation into a subsidence

damage claim. This regulation is similar

to section 5.5(c) (52 P.S. 1406.5e(c)) of

the BMSLCA. Both the statute and the

regulation require the Department to

conduct an investigation within 30 days

of receipt the claim and within 60 days

of completion of the investigation

provide a written response.

Additionally, both the statute and

regulation provide that, if the

Department finds that the operator’s

underground mining caused the

damage, the Department will either

issue a written order directing the

operator to compensate the structure

owner or issue an order directing the

operator to repair the damage structure

within six months of the date of

issuance of the order. More than six

months may be allowed if the

Department finds that further damage

may occur to the same structure as a

result of additional subsidence.

The Director approved the portions of

section 5.5(c) (52 P.S. 1406.5e(c))

dealing with the time limitations of

PADEP’s inspection responsibilities.

The approval was made to the extent

that Pennsylvania recognizes that

existing provisions of the Pennsylvania

67042 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

program regarding responses to citizen

complainants could require

Pennsylvania to respond to a citizen

more quickly than the 60 days allowed

in this section. Therefore, the Director is

approving 25 Pa. Code 89.143a(d)(1) and

(2) to the same extent.

The Director did not approve the

provision in 5.5(c) (52 P.S. 1406.5e(c))

of the BMSLCA that allowed written

orders with abatement periods of six

months or longer to complete repairs or

compensate landowners for damages.

For the same reasons, the Director is not

approving the portion of 25 Pa. Code

89.143a(d)(3) that states, ‘‘ * * * within

6 months of the date of issuance of the

order. The Department may allow more

than 6 months if the Department finds

that further damage may occur to the

same structure as a result of additional

subsidence.’’

Finally, the Director is requiring

subsections (d)(1) through (3) to be

amended because of the use of the term

‘‘underground mining.’’ Please see the

combined finding regarding use of the

term ‘‘underground mining’’ as opposed

to ‘‘underground mining operations’’ at

the end of the regulation section for

more information.

Section 89.144. This section lists the

requirements to notify the landowners

of impending underground mining

beneath their property. The section was

deleted and its provisions moved, with

some minor modifications, to 25 Pa.

Code 89.155. Because all of the

provisions of 25 Pa. Code 89.144 were

moved to 25 Pa. Code 89.155, and those

provisions were found to be as effective

as the federal regulations regarding

public notice at 30 CFR 817.122, the

Director is approving the deletion of 25

Pa. Code 89.144.

Section 89.144a(a)(1). This provision

provides that the operator will not be

required to repair a structure or

compensate a structure owner for

damage to structures if the operator

demonstrates that the landowner denied

the operator access to the property upon

which the structure is located to

conduct a premining survey or

postmining survey of the structure and

surrounding property. This provision is

similar to section 5.4(c) (52 P.S.

1406.5d(c)) of the BMSLCA. The

Director is not approving this portion of

the amendment for the same reasons as

given for not approving section 5.4(c)

(52 P.S. 1406.5d(c)) of the BMSLCA, as

noted earlier in this rulemaking.

Section 89.144a(a)(2). This provision

provides that an operator can be granted

relief from responsibility to repair a

structure or compensate a structure

owner for damage to a structure if the

operator’s underground mining did not

cause the damage. The Director is

approving this portion of the

amendment. There is nothing in the

federal regulations requiring operators

to compensate owners or repair damage

that was not caused by the operator’s

underground mining activities.

Therefore, this provision is not

inconsistent with the requirements of

SMCRA and the federal regulations.

Section 89.144a(a)(3). This provision

provides that an operator can be granted

relief from responsibility to repair a

structure or compensate a structure

owner for damage to a structure if the

operator and the landowner entered into

a voluntary agreement that satisfies the

requirements of section 5.6 (52 P.S.

1406.5f) of the BMSLCA. Section 5.6(a)

(52 P.S. 1406.5f(a)) requires agreements

to provide for ‘‘remedies [that] shall be

no less than those necessary to

compensate the owner of a building for

the reasonable cost of its repair * * * .’’

The Director has approved section 5.6(a)

(52 P.S. 1406.5f(a)) of the BMSLCA and

is approving 25 Pa. Code 89.144a(a)(3)

of the regulations because it is

consistent with the federal rules at 30

CFR 817.121, which require permittees

to repair damage to structures or

compensate the owner.

Section 89.145(a). This section was

deleted in its entirety. This section

required operators to correct material

damage resulting from subsidence to

surface lands, including perennial

streams, to the extent technologically

and economically feasible, by restoring

the land to a condition capable of

maintaining the value and reasonably

foreseeable uses that it was capable of

supporting before subsidence.

Pennsylvania’s program amendment

provides for repair of damage to surface

lands at 25 Pa. Code 89.142a(e). Please

see the discussions of 25 Pa. Code

sections 89.142a(e), 89.142a(h), and

89.141(d)(3) for findings on how those

sections are no less effective than the

federal regulations that require

operators to correct material damage to

surface lands (including streams) by

restoration of the land to a condition

capable of maintaining the value and

reasonably foreseeable uses that it was

capable of supporting before

subsidence. The Director is approving

the deletion of 25 Pa. Code 89.145(a)

because the provisions of that section

are covered by 25 Pa. Code section

89.142a(e) and 89.142a(h).

Section 89.145(b). This section was

deleted in its entirety. The section

required operators to report claims of

subsidence damage to PADEP within 10

days of notification. There is no

comparable federal standard requiring

operators to notify the regulatory

authority of subsidence damage claims.

Both the BMSLCA at section 5.5 (52 P.S.

1406.5e) and the implementing

regulations at 25 Pa. Code 89.143a

describe procedures for reporting

subsidence damage claims to PADEP.

For the Director’s findings on reporting,

please see the discussions of those

sections. Because there is no federal

counterpart to 25 Pa. Code 89.145(b),

the Director finds that Pennsylvania’s

deletion of this section does not impair

the effectiveness of its program. The

deletion is approved.

Section 89.145a(a)(1). This subsection

requires operators to conduct premining

water surveys prior to mining within

1000 feet of a water supply. In our letter

of June 21, 1999, to Pennsylvania we

stated that this section contemplates

that the premining water survey would

be done after the permit is approved

while the federal rule at 30 CFR

784.20(a)(3) requires the completion of

the survey prior to permit approval. In

addition, OSM’s February 9, 1998,

policy memorandum provides that:

State program amendments that would

delay the timing of the water supply surveys

required under 30 CFR 784.20(a)(3) should

not be approved.

In the June 21, 1999, letter we also

noted that 25 Pa. Code 89.145a(a)(1)

provides that survey information is to be

submitted only to the ‘‘extent that it can

be collected without extraordinary

efforts or the expenditure of excessive

sums of money’’ and that the federal

rules do not allow for waiving survey

information. Finally, we asked

Pennsylvania to clarify whether the

information required in subsections 25

Pa. Code 89.145a(a)(1)(i) through (vi)

will give sufficient information to

determine the premining water quality

and quantity. As stated in the federal

rules, ‘‘the survey should incorporate

the baseline water quality and quantity

information on existing water supplies

required under existing rules at 30 CFR

784.14 and 784.22.’’ 60 FR at 16730 (2d

col).

Pennsylvania’s response of June 1,

2000, noted that its regulations do not

waive the requirement to conduct

premining surveys and that, as required

by 25 Pa. Code 89.145a(a), all water

supplies that may be adversely affected

by mining must be surveyed by the

mine operator. Pennsylvania advised

that the only exception is where the

property owner will not allow the mine

operator access to conduct the survey

and that, fundamentally, there is no

difference between the federal and

state’s regulations in terms of ensuring

the availability of baseline data against

which to measure effects.

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67043

Pennsylvania further noted that the

survey requirements of 25 Pa. Code

89.145a(a) are designed around

Pennsylvania’s water supply

replacement requirements, which are

more inclusive than federal counterpart

requirements, and as a result,

Pennsylvania’s program must include

provisions for surveying water supplies

that are installed after the time of permit

application. Finally, Pennsylvania

advised that its program does not

postpone the submission of all water

supply information until mining

operations have begun. Information

relating to the quality and quantity of

water supplies is presented at the time

of permit application in accordance

with the requirements of 25 Pa. Code

89.34(a)(1) relating to groundwater

information.

The Director addressed this situation

in a memorandum to the Regional

Directors dated February 9, 1998, titled

‘‘Timing of Presubsidence Surveys,’’

and in March 1999 letters to the

Interstate Mining Compact Commission

and Tri-State Citizens Mining Network

(the ‘‘March 1999 letters’’). Guidance

from the Director provides that baseline

data collected at the time of permit

application must be sufficient to

develop the Probable Hydrologic

Consequences and Cumulative

Hydrologic Investigation Assessment

documents and that states may use the

regulatory program amendment process

to identify what additional information

required under 30 CFR 784.20(a)(3)

must be submitted at the time of permit

application and which, if any, could be

collected at a time closer to when

mining would actually occur. The

Director committed to giving serious

consideration to approving state

program amendments that identify what

water supply information required

under 30 CFR 784.20(a) must be

submitted at the time of permit

application and which, if any, could be

collected at a time closer to when

mining actually occurs. Finally, the

Director required that states must

demonstrate, through the regulatory

program amendment process for any

delayed water supply surveys, that

those analyses would be completed

sufficiently in advance of mining to

avoid any adverse effect to the water

supply.

OSM considered Pennsylvania’s

proposed amendment relative to current

program requirements for baseline

hydrologic surveys, information in the

Pennsylvania Bulletin (28 Pa.B. 2761),

and responses to OSM requests for

clarification relative to the March 1999

letters. Specifically at issue is whether

OSM can approve the Pennsylvania

requirement that operators conduct

premining water surveys after the

permit application is approved and

prior to mining within 1000 feet of a

water supply. The federal rule at 30 CFR

784.20(a)(3) requires a survey at the

time of the permit application of each

and every protected water supply, i.e. a

survey of individual wells, springs, etc.

Pennsylvania advised OSM that its

amendment proposal does not postpone

the submission of all water supply

information until after the permit is

approved (see the Director’s finding at

25 Pa. Code 89.34(a)(1)). The Director

notes that the approved Pennsylvania

program at 25 Pa. Code 89.43(a)(1)

contains requirements for permittees to

collect baseline hydrology information

in a manner no less effective than the

federal requirements at 30 CFR

784.14(b)(1). The federal rules at 30 CFR

784.14 require sampling of ground water

information at the time of the permit

application, but there is the option to

use modeling to meet the requirements

for hydrologic prediction. Modeling

means that not every water supply will

be sampled. Pennsylvania’s existing

program also allows for modeling. This

introduces uncertainty into predicting

the type and extent of information that

will be collected on each water supply

at the time of the permit application.

Additionally, the preamble to the

Pennsylvania Bulletin stated that 25 Pa.

Code 89.145a(a)(1) provides for

Department technical staff to adjust the

survey distance (1,000 foot limitation)

based on site-specific conditions.

Accordingly, it is not clear what

parameters Pennsylvania would require

to be collected on each individual

supply as part of a permit application,

and which, if any, would be subject to

a delayed survey after permit approval.

Based upon the language contained in

the Pennsylvania amendment,

Pennsylvania’s responses to OSM’s

comments, Pennsylvania’s existing

program and the Pennsylvania Bulletin,

the Director is not approving the

provision that allows for water supply

surveys to be delayed until mining

advances within 1,000 feet of a supply.

Such information must be submitted by

the permittee with the application. The

Director is requiring Pennsylvania to

amend its program to require permittees

to submit the information required by

25 Pa. Code 89.145a(a)(1)(i)–(vi) that is

necessary to meet the provisions of 30

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

application for all existing drinking,

domestic, or residential water supplies.

As part of that amendment,

Pennsylvania may submit the

information requested in the March

1999 letters to identify what water

supply information must be submitted

at the time of permit application and

which, if any, could be collected at a

time closer to when mining actually

occurs. Along with any such request,

Pennsylvania must demonstrate for any

delayed water supply surveys, that

those analyses would be completed

sufficiently in advance of mining to

avoid any adverse effect to the water

supply.

Pennsylvania further noted that the

proviso that survey information need

only be acquired to the extent that it can

be collected without extraordinary

efforts or expenditures of excessive

sums of money is a matter of both

practicality and preventing

inconvenience to property owners.

PADEP noted that this proviso was

based on its experience and pertains

especially to situations where rigid

requirements to obtain quantity

information would result in tearing

apart a well or digging up the floor of

a structure to gain access for

measurements. Although the federal

regulations do not include a similar

proviso, PADEP does not believe that

OSM would apply them without

exercising similar discretion.

The Director is requiring 25 Pa. Code

89.145a(a)(1) to be amended to include

the provision that survey information

need only be acquired to the extent that

it can be collected without

extraordinary efforts or expenditures of

excessive sums of money is only

applicable when it applies to

inconveniencing landowners. The

federal regulations require the water

supply information to be collected

without regard to the cost and effort

applied by operators. This provision

makes this portion of the Pennsylvania

program less effective than the federal

program, which does not include limits

on efforts, or expense, operators are

subjected to in the course of gathering

premining survey information.

Section 89.145a(a)(1)(i)–(vi). These six

subsections list information operators

are required to include in the premining

survey and, if one is desired, the

postmining survey of all water supplies

within the permit and adjacent areas.

The Director finds these subsections no

less effective than the federal rules and

is approving the six subsections for the

reasons noted below (please also see our

finding concerning 25 Pa. Code

89.145a(a)(1)).

The requirement at subsection (i) for

the location and type of water supply is

consistent with the federal regulations

at 30 CFR 784.20(a)(1) requiring the

subsidence control map to show the

location and type of drinking, domestic,

67044 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

and residential water supplies that

could be contaminated, diminished, or

interrupted by subsidence. The Director

is approving this section because it is

substantially the same as the

requirements found at 30 CFR

784.20(a)(1).

Subsection (ii) requires the water

supply surveys to include the existing

and reasonably foreseeable uses of the

water supply. There is no similar

provision in the federal regulations. The

Director is approving this provision

because requiring the operator to gather

more information than is required in the

federal regulations does not lessen the

protections afforded by the federal

regulations. Additionally, this

information is essential for

implementing the provisions of 25 Pa.

Code 89.145a(b) and 89.145a(f).

Subsections (iii) and (iv) provide that

the surveys include the chemical and

physical characteristics of the water and

that a certified laboratory must be used

to analyze the samples and the quantity

of water. These sections require

substantially the same information as is

required in the federal regulations at 30

CFR 780.21(b)(1). The Director is

approving this portion of the

amendment because it is consistent with

the federal regulations. Subsection (v)

requires the survey to include the

physical description of the water supply

and subsection (vi) requires the survey

to include hydrogeologic data such as

the static water level and yield

determination. The Director is

approving subsections (v) and (vi)

because they require information similar

to the ground water information

required by the federal regulations at 30

CFR 780.21(b)(1).

Section 89.145a(a)(2). This provision

requires an operator to submit copies of

the results of analyses (described under

25 Pa. Code 89.145a(a)(1)) as well as the

results of any quantitative analysis to

the Department and the landowner

within 30 days of their receipt by the

operator. Since the federal regulation at

30 CFR 784.20(a)(3) requires the permit

applicant to provide copies of any

assessment or evaluation to the property

owner and the state regulatory

authority, the Director finds that this

provision is no less effective than 30

CFR 784.20(a)(3).

Section 89.145a(a)(3). This subsection

combined with subsection (a)(1)

provides that the operator does not have

to conduct a premining and postmining

survey if the landowner does not

authorize access to the site within 10

days of the operator’s intent to conduct

a survey.

In our letter of June 21, 1999, to

Pennsylvania we noted that federal

regulations place no notice requirement

on the property owner. The 10-day

requirement of Pennsylvania’s

regulations makes it appear to be less

effective than the federal regulation

because under EPAct, even though

access may initially be denied, the

property owner can later decide to allow

a survey.

In its response to us dated June 1,

2000, Pennsylvania noted that 25 Pa.

Code 89.145a(a)(3) is intended to alert

PADEP to situations where property

owners have denied mine operators

access to conduct premining surveys.

This allows PADEP to communicate

with the property owners to further

explain the importance of allowing

premining surveys or the procedures to

be followed in arranging their own

surveys. Section 89.145a(a)(3) does not

preclude property owners from

changing their minds and subsequently

authorizing operators to conduct

surveys.

The Director is approving this portion

of the proposed amendment based on

Pennsylvania’s interpretation that there

is nothing in the amendment precluding

a landowner from requesting a water

supply survey after initially denying the

operator’s access to the property.

Therefore, it is no less effective than 30

CFR 784.20 since it does not prevent

surveys.

Section 89.145a(b). This provision

requires operators to restore or replace

affected water supplies with a

permanent alternate source that

adequately serves the premining uses of

the water supply or any foreseeable uses

of the water supply. This regulation

implements section 5.1(a)(1) and

5.1(a)(2) (52 P.S. 1406.5a(a)(1) and (2))

of the BMSLCA. The Director is

approving Pennsylvania’s standard

regarding the quality of restored or

replaced water supplies and is

conditionally approving its standard

regarding the quantity of restored or

replaced water supplies. Please see the

discussion at section 5.1(a)(1) and

5.1(a)(2) (52 P.S. 1406.5a(a)(1) and (2))

for more information.

However, this section is less effective

than 30 CFR 817.41(j), which requires

permittees to promptly replace drinking,

domestic or residential water supplies.

Section 89.145a(b) does not contain any

standard requiring operators to show a

diligent and timely effort in replacing

water supplies. For further information

on the standard requiring prompt

replacing of water supplies, see the

Director’s decision on section 5.1(a)(1)

(52 P.S. 1406.5a(a)(1)) of the BMSLCA.

The Director is requiring 25 Pa. Code

89.145a(b) to be amended to be no less

effective than 30 CFR 817.41(j) in

requiring prompt replacement of water

supplies.

Section 89.145a(c). This section

provides that within 24 hours of an

operator’s receipt of a claim of water

supply contamination, diminution or

interruption, the operator shall notify

the Department of the claim. There is no

corresponding federal counterpart to

this section. Since this establishes

procedures for operators to contact the

regulatory authority and will insure that

any complaints that are received by an

operator will be forwarded to the

regulatory authority in a timely manner,

the Director finds that this section is not

inconsistent with the requirements of

SMCRA and the federal regulations.

Section 89.145a(d). This section

provides that upon receipt of a

complaint that a water supply has been

contaminated, diminished or

interrupted, operators must diligently

investigate the complaint and notify the

Department in a timely manner of the

results of its investigation. There is no

direct federal counterpart. Since this

establishes procedures for investigations

by operators, the Director finds that this

section is not inconsistent with the

requirements of SMCRA and the federal

regulations.

Section 89.145a(e)(1). This section

provides that if an affected water supply

is within the rebuttable presumption

area and the presumption applies, the

operator will provide a temporary water

supply within 24 hours. We noted in

our letter to Pennsylvania of June 21,

1999, that the proposed amendment

only requires the temporary

replacement of water supplies if three

conditions are met: (1) If the water

supply is within the rebuttable

presumption area, (2) the presumption

applies and, (3) if ‘‘the landowner or

water user is without a readily available

alternate source.’’ The federal rules

require the permittee to replace the

supply that has been interrupted, etc.,

regardless of whether there is an

available alternate source and where

there is no rebuttable presumption. The

federal rules do not have a rebuttable

presumption standard for water

supplies.

In its response of June 1, 2000,

Pennsylvania noted that its program

* * * does provide for the provision of

temporary water irrespective of whether the

affected water supply lies inside or outside

of the rebuttable presumption area. The

BMSLCA requires the provision of temporary

water within 24 hours if the water supply lies

within the rebuttable presumption area. This

requirement is reflected in section 89.145a(e).

If the affected water supply lies outside the

rebuttable presumption area, the

responsibility to provide temporary water is

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67045

driven directly by section 5.2 of BMSLCA.

Procedurally, in cases where a water supply

has been affected outside the rebuttable

presumption area, the law requires DEP to

issue an order before an operator is obligated

to provide temporary water. For this reason,

the responsibility to provide temporary water

in cases where the affected water supply lies

outside the rebuttable presumption area is

not stated in regulation. The requirements of

section 89.145a(e) and the provisions of

section 5.2 of BMSLCA act together to ensure

the provision of temporary water in cases

where water supply impacts occur inside and

outside of the rebuttable presumption area. It

is further notable that throughout its first five

years in enforcing the water supply

replacement requirements of BMSLCA, DEP

has never had to issue an order to compel the

provision of temporary water in any case

where the affected water supply was outside

the rebuttable presumption area.

In regard to the rebuttable presumption of

causation, there is no way in which this

provision can be interpreted or construed to

render Pennsylvania’s program any less

effective than the federal program. The

rebuttable presumption amounts to nothing

more than shifting the burden of proof onto

the mine operator.

This section is substantively identical

to 5.2(a)(2) (52 P.S. 1406.5b(a)(2)) of

BMSLCA. Accordingly, the finding for

5.2(a)(2) (52 P.S. 1406.5b(a)(2)) is

incorporated herein by reference and

the Director is approving this portion of

the regulations to the extent the

statutory section was approved and is

requiring Pennsylvania to submit an

amendment requiring the prompt

supply of temporary water to all

landowners whose water supply has

been impacted by underground mining

activities.

Section 89.145a(e)(2). This subsection

provides that the temporary water

supply shall meet the requirements of

paragraph (f)(2) and provide a sufficient

amount of water to meet the water

supply user’s premining needs. In our

letter of June 21, 1999, to Pennsylvania

we noted that the federal definition for

‘‘replacement of water supply’’ at 30

CFR 701.5 provides for a ‘‘* * * water

supply on both a temporary and

permanent basis equivalent to

premining quantity and quality.’’ We

noted that this section appears to be less

effective than the federal rules, in that

it provides for temporary water based on

users’ needs rather than the premining

quality.

In its response of June 1, 2000,

Pennsylvania noted that under its

program, a temporary water supply is

just that, temporary. It is intended to

satisfy the water users’ needs so that

they can carry out their daily activities

with minimal disruption. By contrast, a

permanent water supply must be

adequate to serve not only the water

user’s premining needs but also any

reasonably foreseeable uses of the

original water supply.

Finally Pennsylvania also notes the

federal terms ‘‘drinking, domestic or

residential water supply’’ and

‘‘replacement of water supply’’ are

defined to include water delivery

systems (i.e., the pumps and piping that

deliver water to the point of use). As a

general observation, these systems are

usually designed based on the existing

uses of the water supplies. Pennsylvania

believes this factor serves to further

align its replacement requirements with

those of the federal regulations.

The federal definition of the term

‘‘replacement of water supply’’ at 30

CFR 701.5 requires the provision of both

permanent and temporary water

supplies that are the equivalent to the

premining quantity and quality. In 25

Pa. Code 89.145a(e)(2), Pennsylvania

has indicated that temporary water

supplies will be restored to the same

quality levels as permanent supplies by

requiring that temporary water supplies

meet the quality requirements of 25 Pa.

Code 89.145a(f)(2). However,

Pennsylvania has not required

temporary water supplies to meet the

same quantity requirements of

permanent supplies as defined in 25 Pa.

Code 89.145a(f)(3)(i) and (ii), i.e., the

amount of water necessary to meet the

water user’s needs and any reasonably

foreseeable uses. Instead, Pennsylvania

only requires temporary water supplies

to provide a sufficient amount of water

necessary to meet the water supply

user’s premining needs. The Director

has conditionally approved 25 Pa. Code

89.145a(f)(3)(i) and (ii), as being as

effective as the federal regulations

regarding quantity of replacement

supplies. Therefore, the Director finds

that to be consistent with the federal

regulations, 25 Pa. Code 89.145a(e)(2)

should require the quantity of

temporary water supplies to meet the

requirements of 25 Pa. Code

89.145a(f)(3)(i) and (ii). Accordingly, the

Director is requiring Pennsylvania to

amend this section to insure that

temporary water supplies are restored to

the same levels as are required of

permanent water supplies. Please see

the discussion in section 5.1(a)(1) (52

P.S. 1406.5a(a)(1)) for more information

on the Director’s conditional approval

regarding quantity of replacement water

supplies.

Section 89.145a(f)(1)(i)—(iv). This

section requires that a permanently

restored or replaced water supply shall

include any well, spring, municipal

water supply system or other supply

approved by the Department that meets

criteria listed in subsections (1)(i)

through (iv). Section 89.145a(f)(1) talks

about reliability, cost, maintenance and

control. Subsection (i) requires the

restored or replaced water supply to be

as reliable as the previous water supply.

Subsection (ii) requires the restored or

replaced water supply to be as

permanent as the previous water supply

and subsection (iii) requires the supply

to not require excessive maintenance.

Subsection (iv) requires that the supply

provide the owner and the user with as

much control and accessibility as

exercised over the previous water

supply. The Director is approving 25 Pa.

Code 89.145a(f)(1)(i) through (iv). There

are no direct corresponding federal

regulations to these sections. The

Director finds that these sections are no

less effective than the requirements

found in the definition of the term

‘‘replacement of water supply’’ in the

federal regulations at 30 CFR 701.5

because it helps return the water supply

to its premining status.

Section 89.145a(f)(1)(v). This

subsection provides that a restored or

replaced water supply must not result in

more than a de minimis cost increase to

operate and maintain. The operator

must pay for increased operating and

maintenance costs that exceed a de

minimis cost increase. As noted earlier

in this rulemaking (see our finding for

25 Pa. Code 89.5, definition of ‘‘de

minimis cost increase’’), the Director

has not approved a ‘‘de minimis cost

increase.’’ The Director does not believe

that passing any increased costs to

operate or maintain replacement water

supply systems to landowners will

fulfill the intent of the federal

regulations to make the landowner

whole. Accordingly the Director is not

approving 25 Pa. Code 89.145a(f)(1)(v)

to the extent that it passes de minimis

cost increases to landowners.

Section 89.145a(f)(2). This section

provides that a restored or replaced

water supply will be deemed adequate

when it differs in quality from the

premining water supply if it meets the

standards of the Pennsylvania Safe

Drinking Water Act or is comparable to

the premining water supply when that

water supply did not meet those

standards. This regulation is comparable

to section 5.1(a)(2) (52 P.S.

1406.5a(a)(2)) of the BMSLCA. Please

see our discussion regarding section

5.1(a)(2) (52 P.S. 1406.5a(a)(2)) for a

discussion of the Director’s approval

regarding quality of replacement water

supplies. The Director is approving this

section for the same reasons.

Section 89.145a(f)(3)(i). This

subsection provides that a restored or

replaced water supply will be deemed

adequate in quantity if it delivers the

67046 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

amount of water necessary to satisfy the

water user’s needs and the demands of

any reasonably foreseeable uses. This

section of the regulations implements

section 5.1(a)(1) (52 P.S. 1406.5a(a)(1) of

the BMSLCA. For a complete discussion

of the Director’s conditional approval of

this section, please see the discussion of

section 5.1(a)(1) (52 P.S. 1406.5a(a)(1)).

The Director’s findings are incorporated

herein and this section is approved to

the extent that section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)) is approved.

Section 89.145a(f)(3)(ii). This

subsection provides that a restored or

replaced water supply will be adequate

in quantity if it is established through a

connection to a public water supply

system that is capable of delivering the

amount of water necessary to satisfy the

water user’s needs and the demands of

any reasonable foreseeable uses.

The Director is conditionally

approving this portion of the

amendment. For more information on

the Director’s conditional approval of

this section, please see the discussion of

section 5.1(a)(1) (52 P.S. 1406.5a(a)(1))

of the BMSLCA under the statute

section.

Section 89.145a(f)(3)(iii). This

subsection defines the term ‘‘reasonably

foreseeable uses with respect to

agricultural water supplies’’ to include

the reasonable expansion of use where

the water supply available prior to

mining exceeded the farmer’s actual

use.

The Director is approving this portion

of the amendment. For more

information on the Director’s approval

of this section, please see the discussion

of section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)) of the BMSLCA under the

statute section.

Section 89.145a(f)(4). This section of

the regulations provides that

replacement of a water supply shall

include the installation of any piping,

pumping equipment and treatment

equipment necessary to put the replaced

water source into service. The Director

is approving this portion of the

regulations. This section is no less

effective than the requirements found in

definition of the term ‘‘drinking,

domestic, or residential water supply’’

in the federal regulations at 30 CFR

701.5. This definition provides that the

drinking, domestic, or residential water

supply includes appurtenant delivery

systems. This portion of Pennsylvania’s

regulations specifies the type of

equipment that would be included in

appurtenant delivery systems and

therefore is consistent with the federal

definition and is approved. For more

information on standards for delivery

systems, please see the Director’s

findings for section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)) of the BMSLCA.

Section 89.146a(a). This section

provides the procedures to be used for

landowners or water supply users to

secure resolution of water supply

damage claims. Subsection (a) requires

landowners to notify mine operators

when they experience contamination,

diminution or interruption of a water

supply. The requirement for landowners

to contact operators is also found in

section 5.2(a)(1) of the BMSLCA. The

Director has approved that requirement

for the reasons noted in the discussion

of section 5.2(a)(1). The Director is

approving 25 Pa. Code 89.146a(a) for the

same reasons.

Section 89.146a(b). This section

provides that the Department will order

the operator to provide temporary water

to the landowner or water supply user

within 24 hours of issuance of the order

if: (1) No alternate temporary water

supply is available to the landowner or

water user, (2) the water supply is

contaminated, diminished or

interrupted, (3) the water supply is

located within the rebuttable

presumption area and, (4) the owner

notified the operator of the water supply

problem. These requirements are similar

to those found in section 5.2(a)(1)

through (3) of the BMSLCA. The

Director is approving 25 Pa. Code

89.146a(b)(1) through (4). The

requirement to provide temporary water

within 24 hours is within guidelines

proposed by OSM in the preamble to the

federal regulations (60 FR 16727) and is

consistent with the federal definition of

‘‘replacement of water supply’’ at 30

CFR 701.5, which requires replacement

of protected water supplies on a

temporary basis. It is also consistent

with the enforcement procedures found

in Part 843 of the federal regulations

since a failure by the operator to replace

the water supply as required under 25

Pa. Code 89.145a(e) is a violation of a

performance standard.

Section 89.146a(b)(1), which limits

PADEP’s ability to issue an order

requiring operators to provide

temporary water within 24 hours of

issuance of an order if an alternate

temporary source is available to

landowners, is approved based on an

explanation provided by Pennsylvania.

In its June 1, 2000, response to our June

21, 1999, letter regarding the same

subject covered in section 89.145a(e),

Pennsylvania noted that, ‘‘[PA]DEP does

not interpret subsection (1) as imposing

any responsibilities on property owners.

If plumbing connections are required to

establish a temporary water service,

they must be provided by the mine

operator. [T]he regulation simply

provides that if an alternate source

exists and the property owner can put

it into service with no more than the flip

of a switch or a turn of a valve, the mine

operator may be relieved of the

responsibility to do any thing more in

the way of providing temporary water.’’

Since the federal rules do not allow

additional costs or burdens to be placed

on the water user, the Director finds

Pennsylvania’s explanation consistent

with the federal rules and as previously

stated, finds this section is no less

effective than the federal regulations in

securing temporary water for

landowners.

Section 89.146a(b)(4) is similar to

section 5.2(a)(1) of the BMSLCA, which

also requires landowners to notify

operators of water supply problems. The

Director is approving 25 Pa. Code

89.146a(b)(4) for the same reasons as

section 5.2(a)(1) was approved.

Section 89.146a(c). Section 89.146a(c)

provides that a landowner or water user

may notify the Department and request

an investigation if an alternate water

supply has not been provided or if the

alternate source is later discontinued.

This section is similar to section

5.2(b)(1) of the BMSLCA. The Director

has approved section 5.2(b)(1) and for

the same reasons is approving 25 Pa.

Code 89.146a(c).

The procedures for securing an

investigation are provided in 25 Pa.

Code 89.146a(c) (1) through (3). These

subsections are similar to section

5.2(b)(2) (52 P.S. 1406.5b(b)(2)) of the

BMSLCA. The Director is approving

section 5.2(b)(2) to the extent that

Pennsylvania recognizes that the

approved program may require a more

timely response to complaints than that

allowed by that section. The Director is

approving 25 Pa. Code 89.146a(c)(1)

through (3) to the same extent and with

the same requirements as section

5.2(b)(2).

Section 89.152(a)(1). This section

provides the circumstances under

which an operator may be relieved from

liability from water supply replacement.

Subsection (1) provides that an operator

will not be required to restore or replace

a water supply if the contamination,

diminution or interruption existed prior

to the underground mining activities

and the mining activities did not worsen

the preexisting condition. The Director

is approving this portion of the

amendment. The federal regulations at

817.41(j) do not require replacement of

water supplies unless contamination,

diminution or interruption due to

mining activities has occurred,

therefore, 25 Pa. Code 89.152(a)(1) is

consistent with the federal rules.

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67047

Section 89.152(a)(2). This section

provides that the operator is not

required to restore or replace a water

supply if the operator can demonstrate

that the contamination, diminution or

interruption is due to underground

mining activities that occurred more

than three years prior to the onset of the

water supply contamination,

diminution or interruption. This

subsection is similar to section 5.2(e)(2)

of the BMSLCA. The Director did not

approve 5.2(e)(2) because the statute of

limitations provision virtually assures

that at some point in time, there will be

a water supply that will not be restored

or replaced because the landowner did

not report the contamination,

diminution or interruption within the

noted time frame. Further discussion on

the Director’s decision to not approve

section 5.2(e)(2) of the BMSLCA can be

found earlier in this rulemaking. The

Director is not approving this section of

the regulations for the same reasons.

Section 89.152(a)(3). This section

provides that the operator will not be

required to restore or replace a water

supply if the contamination, diminution

or interruption occurred as the result of

some cause other than the underground

mining activities. This section of the

regulations is similar to the provisions

of section 5.2(e)(3) of the BMSLCA. The

Director’s approval of 5.2(e)(3) can be

found earlier in this rulemaking. The

Director is approving this section for the

same reasons.

Section 89.152(a)(4). This section

provides that the operator will not be

required to restore or replace a water

supply if the claim for contamination,

diminution or interruption of the water

supply was made more than two years

after the water supply was adversely

affected by the underground mining

activities. This section is similar to

section 5.1(b) of the BMSLCA. The

Director has not approved section 5.1(b)

for the reasons found in the discussion

of that section earlier in this

rulemaking. The Director is not

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

the regulations for the same reasons.

Section 89.152(a)(5)(i). This section

provides that the operator will not be

required to restore or replace a water

supply if the operator has purchased the

property for a sum equal to the

property’s fair market value

immediately prior to the time the water

supply was affected or has made a onetime payment equal to the difference

between the property’s fair market value

prior to the time the water supply was

affected and the fair market value

determined at the time the payment is

made. This section is similar to the

provisions of section 5.2(g)(1) and (2) of

the BMSLCA. The Director has not

approved 5.2(g)(1) and (2) because the

federal program does not provide for

compensation in lieu of replacement or

restoration of water supplies. A

complete discussion of the reasons for

not approving sections 5.2(g)(1) and (2)

can be found earlier in this rulemaking.

The Director is not approving 25 Pa.

Code 89.152(a)(5)(i) of the regulations

for the same reasons.

Section 89.152(a)(5)(ii). This section

provides that the operator will not be

required to restore or replace a water

supply if the landowner and operator

have entered into a valid voluntary

agreement under section 5.3 of the

BMSLCA. This section is similar to a

portion of section 5.3(a) of the BMSLCA.

We did not approve that portion of

section 5.3(a) that allowed

compensation in lieu of restoration or

replacement of affected water supplies.

As the Director previously noted, OSM’s

policy as set forth in the preamble to the

federal EPAct rules, is to require

restoration or replacement. The federal

rules do not allow operators and

landowners to enter into voluntary

agreements in lieu of restoration or

replacement of affected water supplies.

The full discussion of the Director’s

reasons for not approving a part of

section 5.3 of the BMSLCA can be found

in the discussion of that section earlier

in this rulemaking. Section

89.152(a)(5)(ii) is not approved for the

same reasons.

Section 89.152(b). This subsection

states that the section does not apply to

underground mining activities that are

governed by Chapter 87 (relating to

surface mining of coal). In our letter of

June 21, 1999, to Pennsylvania, we

noted that the preamble to the federal

definition of ‘‘replacement of water

supply’’ states that the ‘‘definition is

applicable to both underground coal

mining operations and surface mining

operations that affect water supplies.’’

The preamble to the federal rules

indicates that, ‘‘The final rule is

intended to apply to replacement of

water supply under both sections 717(b)

and 720(a)(2) of SMCRA.’’ 60 FR at

16726. We asked Pennsylvania to clarify

how the Pennsylvania program meets

the federal regulations in protecting

water supplies affected by both

underground and surface mining

operations.

In its reply of June 1, 2000,

Pennsylvania noted:

[The] water supply replacement

requirements originate in two different

statutes. In cases where impacts are due to

operations carried out below the surface in

the workings of an underground mine,

replacement requirements are driven by

BMSLCA. In cases where impacts are due to

activities at the land surface (i.e., surface

mines, surface sites associated with

underground mines, coal preparation plants

and coal refuse disposal areas), requirements

are driven by SMCRA. While replacement

requirements are similar under both

BMSLCA and SMCRA, there are subtle

differences that demand separate treatment.

For example, BMSLCA includes a rebuttable

presumption provision that is defined by an

angular projection from underground mine

workings, whereas, the rebuttable

presumption provision of SMCRA is defined

by a horizontal projection from the area

where activities take place at the surface. Due

to these differences, effects resulting from

surface operations at an underground mine

must be treated separately from effects

resulting from underground operations. In

deciding the appropriate treatment, DEP first

decides whether effects are due to activities

at a surface site or activities in the

underground mine workings. If the effects are

due to operations in the underground

workings, DEP applies the replacement

requirements of 25 Pa Code 89.145a. If the

effects are due to operations at a surface

activity site, DEP applies the replacement

requirements in section 87.119 or section

88.107.

There is no direct federal counterpart.

The federal regulations at 30 CFR

817.41(j) require the permittee to

replace any affected water supply that is

affected by underground mining

activities. The federal definition of

‘‘underground mining activities’’ at 30

CFR 701.5 includes surface operations

incident to underground coal extraction

and underground operations. Section

89.152(b) merely delineates which parts

of the Pennsylvania program address the

various underground mining activities.

Accordingly, it is not inconsistent with

the requirements of SMCRA and the

federal regulations. The Director notes

that Pennsylvania’s program

amendment regarding water supply

replacement provisions of surface

mines, including surface operations

incident to underground coal extraction,

has not yet been approved by OSM.

Section 89.153(a) and (b). This

section deals with the relationship

between a rebuttable presumption and

water supply replacement. The

provisions of subsections (a) and (b) are

substantively identical to the provisions

of section 5.2(c) of the BMSLCA. As we

stated previously, there is no federal

regulation that prohibits the state from

enacting a rebuttable presumption for

water supply replacement. In fact, by

finding that operators are presumed

responsible for replacement of water

supplies, these regulations will assist in

insuring that operators are promptly

informed of their obligation to replace

affected supplies and provide

emergency and temporary water

67048 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

promptly. Thus, the Director finds that

these sections are in accordance with

section 720(a)(2) of SMCRA, which

requires the prompt replacement of a

protected water supply.

Section 89.153(c). This subsection

provides that affirmatively proving that

an operator was denied access to

conduct a premining or postmining

survey of a water supply does not

relieve the operator of liability for the

contamination, diminution or

interruption when the landowner,

affected water user or the Department

proves the operator’s underground

mining activities caused the

contamination, diminution or

interruption. There is no direct

counterpart to this section in the federal

regulations. However, this section is not

inconsistent with the requirements of

SMCRA and the federal regulations

because it does not eliminate an

operator’s responsibility and it is not

inconsistent with enforcement actions

where the regulatory authority has the

initial burden of going forward with

evidence. Therefore, the Director is

approving this section.

Section 89.154. This section describes

the type and make up of maps to be

submitted with the permit application.

Subsection (a) describes the general

mine map and the elements that are

required to be incorporated into the

map. Numerous provisions of this

section were moved from 25 Pa. Code

89.142, which was previously approved

by OSM. Specifically, 25 Pa. Code

89.142(a)(1) through (5) were moved to

25 Pa. Code 89.154. The Director is

approving the subsections since they

were previously approved by OSM and

the federal rules have not changed since

that approval.

Section 89.142(a)(6) was also moved

to 25 Pa. Code 89.154, with the

exception of the deletion of references

in subsections (6)(ii) and (iii) to

buildings in place as of April 27, 1966,

and the deletion of the reference to

cemeteries in place as of April 27, 1966,

in subsection (6)(iii). These references

were deleted in PADEP’s rulemaking of

May 10, 1997 (27 Pa.B. 2371) that was

made in response to Act 54’s deletion of

protection to structures in place as of

April 27, 1966. The May 10, 1997,

rulemaking that modified subsections

(6)(ii) and (iii) was not submitted to

OSM for approval prior to the current

amendment. The Director is approving

the deletion of 25 Pa. Code 89.154

because the deletion of references to

April 27, 1966, provides protections no

less effective than those found in the

federal regulations. The deletion will

not make Pennsylvania’s program less

effective than the federal program.

In addition, several provisions not

previously found in 25 Pa. Code 89.142

were added to 25 Pa. Code 89.154.

These include 25 Pa. Code 89.154(6)(iii),

(x), (xi), (xix). Section 89.154(a)(6)(iii)

requires maps to contain structures or

classes of structures listed in 25 Pa.

Code 89.142a(f)(1)(i)–(v). Section

89.154(a)(6)(x) requires maps to depict

oil, gas and coal slurry pipelines larger

than 4 inches in diameter. Section

89.154(a)(6)(xi) requires maps to depict

water and sewer main and transmission

lines. Section 89.154(a)(6)(xix) requires

maps to depict proposed underground

workings, including a description of the

location and extent of the areas in

which planned subsidence mining

methods will be used and the

identification of all areas where

measures will be taken to prevent or

minimize subsidence and subsidencerelated damage.

The Director is approving these

various subsections. The federal rule at

30 CFR 784.20(a)(1) requires a map of

the permit and adjacent area showing

the location and type of structures,

lands and water supplies that could be

affected by subsidence. The

Pennsylvania rules list such items,

therefore they are no less effective than

the federal requirements for maps found

in 30 CFR 784.20(a)(1). In addition,

Pennsylvania’s mapping requirements

include items which are required under

30 CFR sections 783.24(c), 783.25(a)(1),

783.25(a)(4) and 783.25(a)(5) and are no

less effective than these federal

regulations.

In our letter of June 21, 1999, to

Pennsylvania, we noted that this

subsection does not contain a

requirement that the general mine map

include renewable resource lands or

drinking or domestic or residential

water supplies as is required by 30 CFR

784.20(a)(1).

In its response to us of June 1, 2000,

Pennsylvania noted that:

Section 89.154(a) does require the General

Mine Map to include water supplies (see

subparagraph (6)(vii)). The definition of

water supply under 25 Pa Code 89.5 includes

domestic water supplies and virtually all

other types of developed water supplies

commonly found in the bituminous coal

fields. There is also a general requirement to

show all water wells under subparagraph

(6)(xiv). These requirements would include

all water supplies within the scope of the

federal term, ‘‘drinking, domestic or

residential water supply.’’

Although section 89.154(a) does not

include an explicit requirement to show

renewable resource lands on the map, it does

include requirements to map most elements

that fall within the scope of the term,

renewable resource lands. First of all, the

General Mine Map must include the entire

surface area above the proposed mine and

additional area beyond the mine boundaries

where structures may be damaged and

surface lands may suffer material damage.

This area would include all renewable

resource lands that exist above or adjacent to

the proposed mine. It would include the

recharge area of aquifers that lie above and

adjacent to the mine plan. It would also

include areas where agricultural operations

take place.

The federal definition of ‘‘renewable

resource lands’’ found at 30 CFR 701.5

means aquifers and areas for the

recharge of aquifers and other

underground waters as well as areas for

agricultural or silvicultural production,

production of food and fiber, and

grazing lands. The Director accepts

Pennsylvania’s position that 25 Pa. Code

89.154 will require the requisite

information on aquifers and areas for

agricultural production and is

approving this section.

Section 89.154(b). This section

requires mine maps to be submitted to

the Department every six months and

also gives the requirements for the

objects that are to be included on the

maps. There is no federal counterpart to

this section. The Director finds that this

section is not inconsistent with the

requirements of SMCRA and the federal

regulations because it will not limit

protection to landowners and water

users and will allow them to monitor

the progress of underground mining

operations. The Director is approving

this section.

Section 89.154(c). This section

requires the six-month maps to be filed

with the recorder of deeds for each

county in which underground mining is

projected and proof of filing to be

submitted to the Department. There is

no federal counterpart to this section.

The Director finds that this section is

not inconsistent with the requirements

of SMCRA and the federal regulations

because it will not limit protection to

landowners and water users and will

assure the progress maps are available to

the public. The Director is approving

this section.

Section 89.154(d). This section

provides that no underground mining

may occur until it is shown as projected

mining on the maps required by

subsection (b) and the maps have been

on file with the recorder of deeds office

for 10 days. There is no federal

counterpart to this section. The Director

finds that this section is not inconsistent

with the requirements of SMCRA and

the federal regulations because it will

not limit protection to landowners and

water users and will assure mining

maps delineating mining progress are

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67049

available for inspection. The Director is

approving this section.

Section 89.155. This section provides

for public notice to property owners,

utilities, and political subdivisions at

least six months, but less than five

years, prior to mining beneath the

property. It also requires that the notice

identify the area where underground

mining will occur, the time frames for

mining, the location where the maps

and applications (which includes the

subsidence control plan) may be

inspected, and where the owners can

submit complaints. These requirements

are essentially the same as the

requirements of the federal regulations

at 30 CFR 817.122. The federal rules

require at least six months notice to all

owners and occupants. The notice must

include the areas to be mined, the time

frames and the location where the

subsidence control plan may be

examined. The Director is approving

this public notice portion of the

regulation because it is no less effective

than the federal regulations at 30 CFR

817.122. However, the Director is

requiring this section to be amended

because of the use of the term

‘‘underground mining.’’ Please see the

combined finding regarding use of the

term ‘‘underground mining’’ as opposed

to ‘‘underground mining operations’’ at

the end of the regulation section for

more information.

Sections 89.141(d), 89.141(d)(9),

89.142a(a), 89.142a(f)(1),

89.142a(f)(2)(i), 89.142a(h)(1),

89.142a(h)(2), 89.142a(i)(1), 89.143a(a),

89.143a(d)(1), 89.143a(d)(2),

89.143a(d)(3), 89.155(b)(1) and (2), and

89.155(c). The Director has found that

these sections of 25 Pa. Code Chapter 89

are less stringent than section 720(a) of

SMCRA because of their reference to

underground mining. These sections

require a description of the impacts of

underground mining on surface

features, structures and facilities and

provide performance standards to

remedy those impacts. Section 720(a) of

SMCRA requires underground coal

mining operations to comply with those

requirements. The term ‘‘underground

coal mining operations’’ is more

expansive than Pennsylvania’s

definition of underground mining,

which is defined at 25 Pa. Code 89.5 to

be the extraction of coal. The federal

definition of underground coal mining

activities describes underground

operations as underground construction,

operation and reclamation of shafts,

adits, underground support facilities, in

situ processing, and underground

mining, hauling, storage and blasting.

Thus, under Pennsylvania’s proposed

sections, the only activity that must

meet the environmental requirements of

Chapter 89 is coal extraction, while

under SMCRA, all underground

operations must meet the environmental

requirements. The Director is requiring

the above noted sections of 25 Pa. Code

to be amended to be no less stringent

than section 720(a) of SMCRA.

Summary Table

The table below summarizes the

Director’s findings with regard to each

section of 25 Pa. Code Chapter 89.

Sections of the regulations under 25 Pa. Code

Chapter 89 that are approved

Sections of the regulations under 25 Pa.

Code Chapter 89 that are conditionally approved or are required to be amended

Sections of the regulations under 25 Pa.

Code Chapter 89 that are not approved in

whole or in part

Section 89.5, the definitions of the following

terms: ‘‘dwelling,’’ ‘‘irreparable damage,’’

‘‘material damage,’’ ‘‘noncommercial building,’’ ‘‘public buildings and facilities,’’ ‘‘public

water supply system,’’ ‘‘rebuttable presumption area,’’ ‘‘underground mining,’’ ‘‘underground mining operations,’’ ‘‘water supply’’.

89.141(d), (d)(3), (6), and (9) ..........................

89.142a(a)

89.142a(c)(3)

89.142a(d)

89.142a(f)(1)

89.142a(f)(2)(i)

89.142a(g)(1)

89.5, the definitions of the following terms:

‘‘de minimis cost increase,’’ ‘‘fair market

value,’’ ‘‘permanently affixed appurtenant

structures’’.

89.142a(f)(1)(iii).

89.143a(c).

89.143a(d)(3).

89.142a(h)(1) and (2) 89.144a(a)(1).

89.142a(i)(1) 89.145a(a)(1).

89.143a(a) 89.145a(f)(1)(v).

89.143a(d)(1) and (2) 89.152(a)(2) and (4).

89.33 ................................................................... 89.145a(b) ........................................................ 89.152(a)(5)(i) and (ii).

89.34 ................................................................... 89.145a(e)(1) and (2)

89.35 ................................................................... 89.145a(f)(3)(i) and (ii)

89.36 ................................................................... 89.146a(c)

89.67 ................................................................... 89.155(b)(1) and (2), and (c)

89.141(a)

89.141(d)(2), (d)(4), (d)(5), (d)(7), (d)(8), (d)(10)

and (d)(11)

Deletion of 89.142

89.142a(a)(1), (2), (3) and (4)

89.142a(b)

89.142a(c)(1) and (2)(i)–(vi)

89.142a(e)

89.142a(f)(1)(i), (ii), (iv), and (v)

89.142a(f)(2)(ii)

89.142a(g)(2), (3), and (4)

89.142a(i)(2), (j), (k), and (l)

Deletion of 89.143(a) through (g)

89.143a(b)

Deletion of 89.144

89.144a(a)(2), and (3)

Deletion of 89.145(a) and (b)

89.145a(a)(1)(i)–(vi)

89.145a(a)(2) and (3)

89.145a(c)

89.145a(d)

89.145a(f)(1)(i)–(iv)

89.145a(f)(2)

89.145a(f)(3)(iii)

67050 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

Sections of the regulations under 25 Pa. Code

Chapter 89 that are approved

Sections of the regulations under 25 Pa.

Code Chapter 89 that are conditionally approved or are required to be amended

Sections of the regulations under 25 Pa.

Code Chapter 89 that are not approved in

whole or in part

89.145a(f)(4)

89.146a(a), and (b)

89.152(a)(1) and (3)

89.152(b)

89.153 (a) through (c)

89.154(a) through (d)

89.155(a), (b)(3) and (4)

IV. Summary and Disposition of

Comments

Federal Agency Comments

On August 5, 1998, we asked for

comments from various federal agencies

that may have an interest in the

Pennsylvania amendment

(Administrative Record Number PA

841.08). We solicited comments in

accordance with section 503(b) of

SMCRA and 30 CFR 732.17(h)(11)(i) of

the federal regulations.

The U.S. Department of Labor, Mine

Safety and Health Administration, Coal

Mine Safety and Health, Districts 1 and

2 indicated it had no comments on the

proposed amendment.

The U.S. Fish and Wildlife Service

(FWS) submitted comments regarding

several areas. The first comments were

concerned with endangered species.

FWS pointed out that Pennsylvania’s

regulations at 25 Pa. Code, Chapter 89,

Subchapters A, D, E, F, and G do not

mention endangered species protection.

FWS goes on to say that the provision

in Subchapter C, section 89.82(e)

appears to be less protective than the

federal requirement found in 30 CFR

773.15(c) and appears to apply only to

reclamation activities. FWS also

described the requirements for

protection of endangered species found

in Subchapter B, section 86.37. FWS

concludes its comments on endangered

species by indicating it is unclear

whether the provisions of Chapter

86.37(a)(15) apply to all portions of

Chapter 89, including the less protective

section 89.82(e). OSM did not find these

comments to be relevant to the

amendment submitted by Pennsylvania.

Pennsylvania is requesting to change its

program to deal with subsidence

damage to structures and water

supplies. The portions of Chapter 89

dealing with endangered species were

not part of the amendment Pennsylvania

submitted for approval. Neither section

86.37 nor section 89.82 were requested

to be changed by Pennsylvania in this

rulemaking. These sections are part of

Pennsylvania’s approved program and

as such it would be inappropriate for

OSM to comment on them in the

context of the current rulemaking.

FWS also submitted comments

regarding streams. FWS noted that

Pennsylvania limits subsidence

protection for streams to perennial

streams, which is a limitation not found

in the federal program. FWS asserts that

there is no similar limitation in the

federal program, which generally

protects ‘‘streams’’ or ‘‘intermittent and

perennial’’ streams. Presumably, FWS’s

assertion that Pennsylvania’s program

provides lesser protection to

intermittent and perennial streams was

made relative to full extraction mining

and on the basis that proposed sections

89.141(d)(9) and (10) under subsidence

control application requirements only

mention perennial streams.

Two points are relevant to address the

FWS’s concern. First, the above

referenced requirements were

previously included in the approved

Pennsylvania program. More

specifically, sections 89.141(d)(9) and

(10) were previously addressed in the

approved program under old section

89.141(d)(2). Old section 89.141(d)(2)

required a discussion of perennial

streams based on 89.143(d) and

89.143(b)(1)(iv), respectively, and

addressed the specific topics found at

the new 89.141(d)(9) and (10).

Second, the Pennsylvania program

requires the same level of subsidence

damage prevention and mitigation for

streams (perennial and intermittent) that

is required under the federal

requirements. Federal requirements

address full extraction mining impacts

to surface lands through a material

damage standard. As noted in the

preamble to the 1995 federal EPAct

rules, ‘‘[T]he definition of ‘‘material

damage’’ covers damage to the surface

and to surface features, such as

wetlands, streams, and bodies of water

***’’ (60 FR 16724). Under 30 CFR

784.20(b)(8), the permit subsidence

control plan must contain a description

of the measures to be taken to mitigate

any subsidence-related material damage

to the land. In addition, under 30 CFR

817.121(c)(1), the permittee must correct

any material damage resulting from

subsidence caused to surface lands, to

the extent technologically and

economically feasible, by restoring the

land to a condition capable of

maintaining the value and reasonably

foreseeable uses that it was capable of

supporting before subsidence damage.

With regard to Pennsylvania

requirements, even prior to the

proposed amendment, the approved

program required the protection of

surface lands (including perennial and

intermittent streams) in a manner no

less effective than federal standards.

More specifically, old section

89.141(d)(2) and subsection (d)(2)(iii)

required a description of the measures

(both underground and on the surface)

taken to prevent, minimize or avoid

subsidence from causing damage or

lessening the value or reasonably

foreseeable use of the surface land. Old

performance standards sections

89.143(e) and 89.145(a) required

operators to maintain the value and

reasonably foreseeable use of surface

lands and to correct material damage to

surface lands to the extent

technologically and economically

feasible by restoring the land to a

condition capable of maintaining the

value or reasonably foreseeable use. The

proposed Pennsylvania amendment did

not alter that level of protection. Under

sections 89.141(d)(8) and 89.142a(e),

Pennsylvania still requires operators to

provide a description of the measures to

be taken to maximize mine stability and

maintain the value and reasonably

foreseeable use of the surface land, and

when damaged by subsidence, to correct

material damage to surface lands to the

extent technologically and economically

feasible. In conclusion, OSM does not

agree with FWS that Pennsylvania

limits subsidence protection to

perennial streams. Rather,

Pennsylvania’s regulations have in the

past and will continue to after this

approval, contain more specific

language aimed at addressing basic

federal requirements for the protection

of those streams identified as perennial

in nature.

FWS also commented that

Pennsylvania has reduced stream

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67051

protection in Chapter 89 by revising the

definition of a perennial stream. While

FWS admits the definition of a

perennial stream in Chapter 89 closely

matches the federal definition of

perennial streams found in 30 CFR

701.5, it notes that Pennsylvania’s

implementing technical guidance

document is not adequate. The technical

document (TGD 563–2000–655)

provides a methodology for proving a

stream is not perennial that is not

biology based, which could lead to a

failure to protect many stream systems.

FWS also questioned implementation of

technical guidance document TGD 563–

2000–655 with regard to evaluating

restrictions on mining near streams. In

this case FWS asked OSM to conduct a

random sampling of streams

undermined to evaluate the ability of

the TGD to predict subsidence effects on

streams before OSM accepts the TGD as

part of Pennsylvania’s program

amendments. Finally FWS indicated

TGD 563–2000–655 is inconsistent with

SMCRA and the Clean Water Act

because it does not adequately address

aquatic life issues.

Pennsylvania did not amend its

definition of ‘‘perennial stream’’ in this

rulemaking. Also Pennsylvania did not

submit technical document (TGD 563–

2000–655) as part of this program

amendment. As a result, OSM did not

review it in conjunction with the

amendment. Since the definition and

the technical document are outside the

scope of the amendment, OSM is not

required to respond to this comment.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(i)

and (ii), OSM is required to solicit

comments and obtain the written

concurrence of the EPA with respect to

those provisions of the proposed

program amendment that relate to air or

water quality standards promulgated

under the authority of the Clean Water

Act (33 U.S.C. 1251 et seq.) or the Clean

Air Act (42 U.S.C. 7401 et seq.). By

letter dated August 5, 1998, we

requested comments and concurrence

from EPA on the Commonwealth’s

proposed amendment of the BMSLCA

and implementing regulations

(Administrative Record Number PA

841.08). EPA responded on April 26,

2001 (Administrative Record Number

PA 841.07), that it had no objections or

specific comments on the proposed

amendments. However, EPA did wish to

convey its concerns about the impact of

longwall mining operations on streams

and noted that it supports continued

evaluation of the extent of impacts and

the development of solutions for

preventing, minimizing, or mitigating

objectionable impacts.

OSM solicited, but did not receive,

comments from the Advisory Council

on Historic Preservation, and the U.S.

Department of Agriculture, Soil

Conservation Service.

State Agency Comments

The Pennsylvania Fish and Boat

Commission (PA FBC) commented that

sections 89.34, 89.35 and 89.36 are

discussed in the amendment but only in

relation to water supply protection. PA

FBC believes these sections need to be

further revised to include the protection

of surface and groundwater to better

protect the streams in areas of high

extraction mining.

PA FBC is correct in its assertion that

sections 89.34, 89.35, and 89.36 were

modified to provide additional

protection for water supplies. In

submitting this amendment,

Pennsylvania was responding to the

federal rules regarding restoration or

replacement of water supplies. These

federal rules do not provide additional

protection from subsidence to streams.

As noted in our response to comments

by FWS, Pennsylvania’s amendment

does not alter the minimum federal

requirements with respect to streams.

PA FBC also commented on

Pennsylvania’s Technical Guidance

Document (TGD 563–2000–655)

regarding the definition of a perennial

stream. PA FBC’s comments were

similar to the comments provided by

FWS on the same subject. Please see the

FWS comments regarding TGD 563–

2000–655.

OSM solicited, but did not receive,

comments from the Pennsylvania

Historical and Museum Commission,

Bureau of Historic Preservation.

Public Comments

Public comments were received in

writing and orally at the public hearing

held in Washington, Pennsylvania on

October 13, 1998. Sixteen people spoke

at the public hearing. Additionally, we

received written public comments,

before and after the public hearing, from

three citizen’s groups, and seven private

citizens. We also received comment

letters from an industry group and four

coal companies. In response to our

reopening of the public comment period

on December 8, 2000, we received

comments from a citizen’s group and an

industry group. We have organized

these comments and our response by the

section of the BMSLCA or the

regulations they pertain to. We also

have a section of general comments that

did not pertain to any specific portion

of the BMSLCA or the regulations.

One commenter incorporated by

reference OSM’s November 12, 1996

and November 22, 1996 preliminary

comments to Pennsylvania on Act 54

and Pennsylvania’s not yet finalized

regulations. Pennsylvania’s regulations

were adopted by the Pennsylvania

Environmental Quality Board on March

17, 1998, and published in the

Pennsylvania Bulletin on June 13, 1998.

On July 29, 1998, pursuant to 30 CFR

732.17(b), Pennsylvania submitted Act

54 and the finalized regulations to OSM

for its review. Accordingly, the

preliminary issues raised by OSM in the

1996 letters were either addressed in the

two ‘‘issue letters’’ sent by OSM to

Pennsylvania requesting clarification of

numerous issues [letters dated June 21,

1999 (Administrative record number PA

841.32) and June 23, 2000

(Administrative record number PA

841.40)] or satisfied by either changes in

Pennsylvania’s regulations or by

Pennsylvania’s explanations that were

submitted as part of the July 29th

submission. Pennsylvania responded to

the first issue letter on June 1, 2000

(Administrative record number PA

841.39) and to the second on July 18,

2000 (Administrative record number PA

841.41). The substance of the issue

letters and Pennsylvania’s responses are

discussed in the findings portion of this

final rule. Therefore, OSM is not

addressing its own preliminary 1996

comments on a separate basis.

Comments on the changes to the

BMSLCA:

Section 5.1(a)(1)

Commenters noted that section

5.1(a)(1) of the BMSLCA only requires

operators to provide an alternate water

source that adequately services in

quantity and quality the premining use

or the foreseeable uses of the supply,

which is contrary to the provisions of

section 720(a)(1) of SMCRA. The

commenters believe SMCRA requires

restoration of water supplies to

premining quality and quantity, which

could be a higher standard than the usebased standard of the BMSLCA.

Other commenters voiced similar

concerns and added that Pennsylvania’s

‘‘adequate for use’’ standard, in many

cases, would not meet state or federal

requirements to maintain the value and

use of the land.

The Director has found that

Pennsylvania’s program regarding the

quality of replacement water supplies is

as effective as the federal regulations.

For an explanation of the reasons

behind the Director’s decision, please

see the discussion regarding section

5.1(a)(2). Regarding quantity, the

Director has conditionally approved

67052 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

Pennsylvania’s program to insure that

replacement supplies and delivery

systems will be of a caliber that will

maintain the value and reasonably

foreseeable uses of the land.

Section 5.1(a)(2)

Commenters contended that this

section sanctions replacement of a

marginally acceptable water quality,

rather than requiring replacement of

equivalent quality, by requiring that the

water meet minimum standards defined

under the Safe Drinking Water Act.

The Director believes that with

respect to water quality, an equivalency

determination can be made in terms of

suitability for particular uses rather than

requiring that the chemical composition

of the replacement supply be identical

to that of the premining supply. As a

result, Pennsylvania’s program will

insure that water quality of replacement

supplies will be equivalent to premining

supplies. For more information on the

Director’s decision to approve this

portion of the amendment please see the

discussion of section 5.1(a)(2) of the

BMSLCA in the Director’s findings.

Section 5.1(a)(3)

Commenters alleged that when

mining damages investor-owned water

supply systems, the added costs of

repairs are passed to water users in the

form of higher water bills. The

commenters believe that operators who

cause the damage should pay for the

repair of utility lines.

OSM does not agree with this

comment. The federal regulation at 30

CFR 817.180 regarding utilities only

requires that underground mining

activities be conducted in a manner that

minimizes damage, destruction or

disruption of services provided by

utilities. The rules do not require

operators to reimburse utilities for

damage to utility lines.

Section 5.1(b)

Commenters noted that this section

eliminates a mine operator’s

responsibility for replacement of

damaged water supplies if a claim of

contamination, diminution or

interruption is made more than two

years after the supply has been

adversely affected. The commenters

believe this section is contrary to

SMCRA because there is no limitation of

action provided under federal law, and

that section 509 of SMCRA requires a

performance bond that extends for a

minimum of five years after

reclamation. The commenters believe

that the federal rules indicate that

wherever and whenever it is shown

mining activity caused the loss, the

operator is responsible for replacing it.

OSM agrees that this section is less

stringent than SMCRA. For the reasons

discussed in the finding for section

5.1(b), this section has not been

approved by the Director.

Section 5.2

One commenter referenced the

November 12, 1996 comments from

OSM to Pennsylvania. As stated earlier,

OSM is not addressing its own

preliminary 1996 comments on a

separate basis.

Section 5.2(a)(1)

Commenters noted that this section

obligates citizens whose water supply

has been damaged to first contact the

operator. The commenters were

concerned with the part of section

5.2(a)(1) requiring the operator to

investigate reported water losses with

reasonable diligence because there is no

time frame limiting how long the

company can take to conduct the

investigation nor does the section define

reasonable diligence.

The Director recognizes the

commenters’ concerns regarding timely

investigation of citizen complaints and

has approved the portion of section

5.2(b)(2) dealing with inspection to the

extent that Pennsylvania recognizes that

the approved program may require a

more timely response to complaints

than that required by this section.

Additionally, the Director believes the

amendment required of section 5.1(a)(1)

of the BMSLCA responds to the

commenters’ concerns regarding the

prompt replacement of all adversely

affected water supplies.

Section 5.2(b)(2)

A commenter contended that this

section allows up to 45 days for

investigation of a claim of water loss,

which contrasts with the federal law

requiring prompt replacement of water

supplies. OSM does not fully agree with

this comment. In this section,

Pennsylvania has placed a cap on the

length of time an investigation may

continue. There is no federal

requirement limiting the length of time

of investigations. As noted in the

approval of this requirement, the

Director is approving this portion of

section 5.2(b)(2) to the extent that

Pennsylvania recognizes that the

approved program may require a more

timely response to complaints than that

required by this section.

A commenter also claimed that this

section is not as effective as the federal

regulations because it allows up to three

years for permanent water supply

replacement whereas the federal law

defines prompt replacement as no

longer than two years. For the reasons

discussed in the finding for section

5.2(b)(2), the Director also agrees that

this is less effective. The time frames for

water supply replacement in the

preamble to the federal regulations (60

FR 16727) are ‘‘* * * intended to assist

regulatory authorities in deciding if

water supplies have been ‘promptly’

replaced.’’ The guidance indicates a

permanent water supply should be

provided within two years. Because

section 5.2(b)(2) of BMSLCA can allow

three years to pass before PADEP is

required to issue orders for replacement,

the Director has not approved the

phrase in this section that reads, ‘‘***

where the contamination, diminution or

interruption does not abate within three

years of the date on which the supply

was adversely affected.’’

A commenter further alleged that it is

unclear whether the term ‘‘orders’’

included in section 5.2(b)(2)

contemplates an enforcement order. The

Director has found that the

Pennsylvania program adequately

defines the orders that can be written in

response to violations. Section 5.2(b)(2)

describes the circumstances that may

result in an order, but the approved

program already defines the types of

orders that Pennsylvania will issue. It is

unnecessary to restate the types of

orders that can be issued in this section.

Section 5.2(d)

One commenter noted if a landowner

fails to allow access for a premining

survey, and the landowner has been

advised of the rights established by

sections 5.1 and 5.3, the operator can

escape liability where damage occurs

unless the injured party has baseline

data relative to the affected water

supply. The commenter believes that

this section limits the evidence that a

water supply user or landowner can

introduce in a manner that is improper

and inconsistent with federal law. The

commenter also asserted that it

improperly shifted the burden of

collecting hydrologic data to the

landowner, that there was inadequate

notice, and that the 10 day access period

was too short.

Another commenter averred that this

section’s response to landowners who

refuse operators requests to conduct a

premining inspection is punitive and

not in accordance with the federal

regulations.

OSM agrees with these comments.

The Director is not approving a portion

of section 5.2(d) regarding burden of

proof. This action will respond to the

commenter’s concerns that this section

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67053

will limit the evidence a water supply

user or landowner can introduce to

prove the effects of subsidence on a

water supply. For a full discussion of

the specific language and the reasons for

not approving part of section 5.2(d),

please see the discussion of that section

earlier in this rulemaking.

Section 5.2(e)

Commenters contended that sections

5.2(e)(1), (2) and (3) each attempt to

release an operator of responsibility for

water loss in ways that are improper

under federal law. The commenters

believe that subsection (1), which

relieves an operator from liability where

the premining survey shows that the

contamination, diminution or

interruption existed prior to mining,

appears to grant conclusive effect

without allowing inquiry into whether

the survey is accurate or sufficient to

demonstrate a lack of causation.

The Director does not agree that this

section limits the rights of landowners

to challenge whether the survey is

accurate or sufficient to demonstrate a

lack of causation. Pennsylvania

responded to a similar question in the

preamble to its regulations regarding

subsidence damage repair and water

supply replacement (28 Pa.B. 2776).

Pennsylvania noted that if a landowner

disagreed with the premining survey

results, he or she could arrange to have

a certified laboratory conduct an

independent survey at their own

expense or ask PADEP to conduct a

review of the results of the mine

operator’s survey and conduct

additional testing, if necessary. Clearly,

Pennsylvania envisioned that the results

of premining sampling could be

challenged.

The commenters further noted that

subsection (2) relieves the operator of

liability after a three-year lapse of time

after mining. The commenters were

concerned because the time of mining is

not directly related to the timing of

water loss, and this fails to consider that

subsidence may not occur immediately,

or that other factors may contribute to

the water loss. The commenters further

stated that the three-year limit is also

arbitrary and inconsistent with the

federal act which reserves jurisdiction

and allows reassertion of jurisdiction at

any time.

Finally, a commenter maintained that

bond release should not terminate

operator liability.

OSM generally agrees with the

commenters. The Director has not

approved this section because allowing

an operator to be relieved of the liability

to restore or replace affected water

supplies three years after underground

mining activities have ceased is

inconsistent with SMCRA and the

federal regulations. For a complete

discussion of our reasons for not

approving this section, see the

discussion of section 5.2(e)(2).

With regard to the comment regarding

bond release terminating operator

liability, we have found that this section

of the BMSLCA does not provide for

termination of liability at bond release.

Finally, the commenters noted that

subsection (3) appears to allow the

operator to avoid responsibility by

identifying another cause for the water

loss. The commenters believed that

OSM should seek an attorney general’s

opinion that the law assures that where

the operator is partially or entirely

responsible, state law imposes liability.

OSM did seek and receive a legal

opinion from Pennsylvania regarding

assignment of liability when two or

more operators are responsible for water

degradation, diminution or interruption.

The Assistant Director for the Bureau of

Regulatory Counsel wrote a

memorandum dated May 15, 2000

(Administrative Record No. PA 841.39

document number 2 of 4), in which he

indicated that the General Assembly’s

intent was to provide a remedy for water

supplies affected by underground

mining. This section is to be construed

to relieve an operator of responsibility

only where the contamination,

diminution or interruption occurred

solely as a result of some cause other

than mining. Where mining is partly the

cause of the contamination, diminution

or interruption, the mine operator will

not be relieved of the statutory

obligation to restore or replace the

affected water supply. The Director

found that this opinion effectively

answered the commenters’ concerns.

Section 5.2(g)

Commenters alleged that section

5.2(g), which allows property purchase

as an alternative to water supply

replacement, is inconsistent with

federal law because federal regulations

require the operator to demonstrate that

a suitable water source is available and

could be feasibly developed. The

commenters noted that the preamble to

the federal regulations at 60 FR 16727

states that the intent of EPAct is that the

current owner or successor could utilize

the water if desired in the future. The

commenters believe that there is no

opportunity under the federal law for a

company to avoid demonstrating that a

replacement supply could be developed

even if a landowner waives

replacement.

Additionally, one commenter asserted

that absent a demonstration by the

operator that water quality and quantity

can be protected or alternative supplies

provided, a mining permit should not be

issued.

OSM agrees with these comments.

The Director has not approved section

5.2(g) of the BMSLCA. As noted in the

preamble of the federal regulations on

subsidence control (60 FR 16733),

EPAct requires replacement of water

supplies affected by subsidence.

Compensation in lieu of replacement is

not an option. The intent of the federal

rules is to provide a water supply for

current and future landowners.

Compensation for a water loss or

degradation will not allow water

supplies to be available for future use.

Additionally, the federal regulation at

30 CFR 784.20(b)(8) requires subsidence

control plans to contain a description of

the measures to be taken to replace

adversely affected protected water

supplies if the presubsidence survey

shows, or the regulatory authority

determines, that diminution,

contamination or interruption could

occur. Thus, this section requires the

permit application to contain

information on water supply

replacement before the permit is issued.

With this information in the permit

application, there would be no need for

compensation in lieu of replacement,

since replacement supplies must be

designated before the permit is issued.

Section 5.2(h)

A commenter took exception with

PADEP’s role in providing advisory

opinions. The commenter noted that if

it was PADEP’s opinion a water supply

could be replaced, it should be replaced

instead of allowing operators to offer

compensation in lieu of replacement.

OSM agrees that this section provides

remedies to operators that are

inconsistent with the federal rules. The

Director has not approved this section

because it is connected with section

5.2(g) that allows compensation for

damage to water supplies in lieu of

replacement or restoration. The Director

found that section 5.2(h) is not selfsustaining and is unenforceable without

section 5.2(g). Therefore, it is

inconsistent with the requirements of

SMCRA and the federal regulations.

Section 5.3(c)

A commenter proposed that section

5.3(c), which provides landowners and

water users who pursue water

replacement through the courts subject

themselves to the provisions in their

deeds and leases, should be removed

from the BMSLCA. The commenter felt

that this provision rules out most

citizen’s rights to pursue justice in the

67054 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

courts and overrides EPAct’s

requirement for water supply

replacement wherever underground

mine operations damage or disrupt

water supply.

The Director has found that section

5.3(c) is inconsistent with section

720(a)(2) of SMCRA and the federal

implementing rules to the extent that

any state law negates the requirements

of, or provides less protection than,

EPAct. For a complete discussion of the

matter, please see the Director’s

decision with regard to section 5.3(c).

Section 5.4

A commenter claimed that section 5.4

fails to require permittees to be

responsible for subsidence damages in

addition to operators and the use of the

term ‘‘proximity’’ in section 5.4

unreasonably restricts an unqualified

obligation to repair or compensate for

material damage to non-commercial

buildings and dwellings and related

structures.

OSM disagrees that section 5.4 fails to

make permittees responsible for

damages in addition to operators. Under

25 Pa. Code 86.11(a) no person may

operate a mine without obtaining a

permit. Section 86.11(b) indicates that

permits will be issued only to an

operator. Since only operators can

obtain a permit, Pennsylvania’s use of

the term ‘‘operator’’ is as effective as the

federal definition of ‘‘permittee’’ at 30

CFR 701.5, which defines the term to

mean a person holding or required to

hold a permit to conduct surface coal

mining and reclamation operations.

OSM also disagrees with the

commenter on the use of the term

‘‘proximity.’’ Section 5.4(a) of the

BMSLCA extends the requirements of

compensation or restoration to damaged

structures that overlie or are in the

proximity of the mine. OSM requested

that Pennsylvania define what was

meant by the term ‘‘proximity.’’

Pennsylvania indicated that it

understands the term to mean the

structures defined in this section do not

have to be directly above the mine

workings in order to be covered by

repair or compensation requirements.

The phrase recognizes the fact that

subsidence effects often extend outward

from points where coal mining activities

occur. Pennsylvania noted that the

phrase is not interpreted to impose any

specific distance limitations. The

Director accepted this explanation of

section 5.4(a).

A commenter stated that the term

‘‘building’’ does not include

appurtenant structures and utilities

annexed to those structures such as

sewer lines, etc.

OSM disagrees in part with the

commenter’s assertion that the term

‘‘building’’ does not include

appurtenant structures and utilities

annexed to those structures such as

sewer lines, etc. Pennsylvania’s

regulatory definition of permanently

affixed appurtenant structures includes

many of the structures that are within

the definition of occupied dwelling and

structures related thereto that is found

in the federal regulations at 30 CFR

701.5. However, any structures that are

not permanently affixed to the ground,

Pennsylvania refers to as improvements.

As noted in the findings regarding

section 5.4, OSM expressed concerns

with Pennsylvania’s position on

improvements and the same are

addressed in the discussion thereof.

The same commenter noted that the

requirement of ‘‘prompt’’ repair or

replacement is absent from section 5.4.

It is further alleged that this section fails

to assure that the structure owner is

paid the full amount of the diminution

in value resulting from the subsidencerelated damage. Additionally, the

commenter contended that sections 5.4

and 5.5, through the use of time limits

for filing claims, and agreements on

compensation amounts and repair,

infringes on the rights of landowners to

prompt repair, replacement or

compensation in full and to an

unqualified right to secure immediate

state and/or federal inspection of

failures of the operators to provide

compensation or repair.

OSM agrees with the comment that

Pennsylvania’s program fails to include

a prompt standard for repair or

compensation for subsidence damage.

The Director’s decision with regard to

this issue can be found in the discussion

of section 5.5(b).

OSM disagrees with the commenter

that the section fails to assure that the

structure owner is paid the full amount

of the diminution in value resulting

from the subsidence-related damage. As

discussed in the findings regarding

section 5.4(a), the Director believes that

this section is consistent with SMCRA

and the federal rules.

OSM agrees that the use of time limits

for filing claims is less effective than the

federal rules. For a complete discussion

of this issue, see the Director’s findings

of this section.

OSM agrees in part that some

agreements on compensation amounts

or repair are less effective than the

federal regulation requirements. As

stated more fully in the Director’s

findings, if the agreements provide for

the same protection as SMCRA then

they are approvable. However, if the

agreements provide for something less

than what is required by SMCRA, then

they are less effective.

Finally a commenter stated that the

BMSLCA should be changed to include

repair or compensation for damages to

improvements to occupied dwellings.

OSM agrees with this comment. The

Director believes that the changes

required in this rulemaking to the

definition of permanently affixed

appurtenant structures and to section

5.4(a)(3) of the BMSLCA will satisfy the

commenter’s concerns.

Section 5.4 and 5.5

One commenter complained that

mining companies only have to place a

$10,000 bond to begin to destroy homes

and water quality.

To address bonding issues, the

Director has required Pennsylvania to

submit an amendment to section 6 of

the BMSLCA complying with 30 CFR

817.121(c)(5) which requires an

adjustment of bond for subsidence

damage. This provision requires an

increase in bonds for damage to

protected structures and water supplies

if repair, compensation or replacement

takes longer than 90 days.

Another commenter contended that

where a homeowner’s survey or an

expert witness has found that damage to

a structure was obviously caused by

mining, an operator should be required

to repair or compensate the landowner,

even if no premining survey was

completed.

OSM agrees that, under the federal

program, the lack of a premining survey

does not limit an operator’s liability for

repair or compensation. Accordingly,

the Director has not approved the

portions of the BMSLCA that limit

operator’s liability in those cases.

Finally, a commenter maintained that

private agreements must not be allowed

where they limit the protections

provided in the federal regulations.

OSM agrees with this comment. The

Director has found that nothing in the

federal regulations prevents private

agreements, however the terms of an

agreement cannot diminish the

protections afforded by EPAct and the

federal regulations.

Section 5.6

One commenter stated that the

BMSLCA needs to be changed to

prohibit mining agreements that allow

less than full compensation for repair of

subsidence damage and water supply

replacement. The commenter alleged

that industry’s use of confidential

agreements and high-pressure tactics

make homeowners feel they will be

better off by signing these agreements.

The commenter claimed that although

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67055

OSM requires full compensation,

homeowners are discouraged from

bringing these agreements to OSM and

that Pennsylvania looks at agreements

as a credible resolution and does not

normally interfere with them.

As noted in the discussion of section

5.6, the Director approved the use of

agreements only to the extent that any

release in a voluntary agreement does

not limit the protections of EPAct. There

is nothing in the federal regulations

prohibiting agreements between

landowners and mining companies,

however any agreement that provides a

lesser amount of protection than is

afforded by the federal regulations

would not preclude enforcement of the

regulatory requirements.

Section 5.6(c)

One commenter claimed that

structures covered by requirements to

repair or compensate for subsidence

damage under federal law are exempt

under Act 54. The commenter felt that

agreements homeowners entered into

after April 27, 1966, but prior to the

effective date of Act 54, which provide

for a waiver or release of the duty to

repair or compensate, should not be

valid.

OSM agrees with the commenter’s

concerns involving agreements made

after April 27, 1966, but before the

effective date of Act 54. The Director

has not approved the last two sentences

of this portion of the amendment. These

sentences state, ‘‘Nothing herein shall

impair agreements entered into after

April 27, 1966, and prior to the effective

date of this section, which, for valid

consideration, provide for a waiver or

release of any duty to repair or

compensate for subsidence damage. Any

such waiver or release shall only be

valid with respect to damage resulting

from the mining activity contemplated

by such agreement.’’ The Director found

these statements could validate

agreements that are not as protective as

the federal regulations and therefore has

not approved the language.

Section 6

The Pennsylvania Coal Association

(PCA) commented on financial

guarantees for subsidence repair. PCA

indicated that although the proposed

program amendment does not require

adjustment of the performance bond

amount if subsidence causes damage to

protected structures, bond adjustment is

authorized by Pennsylvania’s primacy

regulations at 25 Pa. Code 86.152. PCA

notes that while Act 54 does not require

adjustment of the bonds for subsidence

damage, it mandates use of an escrow

mechanism to assure funds are available

to mitigate damage. Operators are

required to deposit funds in the escrow

within six months if they wish to

contest the repair obligations, or have

not complied with the obligations. PCA

asserts that the escrow option

guarantees the repair or compensation

obligations of section 720 of SMCRA.

Other commenters presented the

opposing view that Pennsylvania’s

current bonding system is not sufficient

to assure correction of subsidencerelated damage. One commenter opined

that the longwall mining regulations

must be strengthened to shift the

balance of power from the coal

companies to a middle ground between

coal operators and homeowners. The

commenter discussed the disruption

subsidence from longwall mining takes

on personal and professional lives and

felt that the bond posted should be

equal to the fair market value of the

home.

Two other commenters indicated that

Pennsylvania has no provision for

bonding for water loss and, in practice,

requires only a $10,000 bond for

structure repair. The commenters

further claimed that homeowners need

to be assured that funds are available for

complete repairs and for water supplies,

which could mean extensive new water

lines in some areas.

We agree with the commenter that

Pennsylvania does not require a bond

for water loss. Additionally, as we noted

in our discussion of section 6 of

Pennsylvania’s statute, the bond amount

at the time of application may not be

sufficient to repair or compensate for

structural damage if the bonds are to be

used to reclaim the site as well. While

the escrow payments may adequately

provide for correction of damage, they

are not required unless the operator

appeals an order.

Finally, we do not agree with PCA’s

assertion that 25 Pa. Code 86.152

requires adjustment of bond for

subsidence damage. The provision at

that section is discretionary on the part

of Pennsylvania. Accordingly, there are

no provisions in the Pennsylvania

program that require the submission of

additional bond in the event subsidence

damage is not corrected. The Director,

therefore, has required Pennsylvania to

amend its program to include bonding

provisions as effective as those found in

30 CFR 817.121(c)(5).

Section 9.1(b)

A commenter stated that the term

‘‘minimize’’ should mean a reduction in

damage to the greatest extent possible.

The commenter believes PADEP uses

the term ‘‘minimize’’ to mean a

reduction of damage in any amount. The

commenter further indicated that

damage should be minimized to a

different level than the irreparable

damage level of the Pennsylvania

program.

OSM agrees that damage

minimization must take place. The

federal regulations at 30 CFR 817.121

require minimization of material

damage to the extent economically and

technically feasible except in certain

circumstances. The steps to be taken to

minimize damage would vary from case

to case and would also depend on a

judgment of the economic and technical

circumstances surrounding the

measures. As a result, the commenter’s

concern on PADEP’s interpretation of

the level of minimization would be

largely dependent on site-specific

circumstances and would have to be

evaluated in that respect.

OSM agrees that Pennsylvania must

minimize material damage to certain

structures. The Director is requiring

Pennsylvania to amend its program to

require minimization of material

damage.

Section 18.1(d)

A commenter contended that this

section could be read to prevent data

collection required to meet permitting

requirements, rather than merely to

restrict data collection solely to augment

the analysis of deep mine impacts on

water resources. The commenter felt

that the final phrase, which refers to

data collection outside of the context of

this section, implies that the language of

section subsection (d) is intended to

have broader application.

OSM does not agree with the

commenter’s interpretation of this

section. This section requires a

compilation of information from deep

mine permit applications, monitoring

reports and other data submitted by

operators, from enforcement actions and

from any other appropriate source. As

stated on Pennsylvania’s website, the

purpose of section 18 is to require

Pennsylvania to ‘‘assess the surface

impacts of underground mining on

buildings, water supplies and streams

every five years.’’ See,

www.dep.state.pa.us/dep/deputate/

minres/bmr/act54/index.html. This

section does not seek to limit

information already required by the

Pennsylvania program. It only requires

a compilation of information already

required to be submitted. Subsection (d)

does not allow PADEP to request

additional information (except for water

loss incidents or claims) to fulfill these

provisions. While there is no direct

corresponding federal requirement to

this section, the Director found that this

67056 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

portion of the amendment does not limit

the rights and protections of the federal

requirements.

Comments on regulation changes at

25 Pa. Code Chapter 89:

Section 89.5(a), Definition of De

Minimis Cost Increase

One commenter stated that this

section allows the operator to forgo

payment of a de minimis cost, which is

less than 15% of the operating and

maintenance costs or less than $60 a

year. The commenter maintained that

this is a significant sum to many rural

homeowners when paying over a 20

year period and that the federal rules

make no such exemption.

OSM agrees with the comment. The

Director has found that passing along

the cost of a treatment system, even if

the increased cost is de minimis, does

not make a landowner or water user

who has experienced water supply

problems as a result of subsidence

whole. The federal regulations require

operators whose mining operations

caused water supply contamination,

interruption or diminution to replace or

restore water supplies, including the

cost of treatment if necessary.

Section 89.141(d)

A commenter noted that this section

requires only a description of measures

to correct damage to homes—allowing

any amount of damage to homes short

of irreparable damage, which PADEP

must predict. The commenter pointed

out the requirements to minimize

damage found at 30 CFR 784.20 and 30

CFR 817.121(a)(1) and (2). The

commenter felt that OSM must find

sound methods for minimizing damage

and use the dictionary meaning of

minimize, which is to ‘‘make the least

of ’’ not just lessen or moderate.

OSM agrees that Pennsylvania’s

program does not contain damage

minimization requirements below the

irreparable damage level. The Director is

requiring Pennsylvania to amend its

program to require operators to

minimize material damage to homes and

non-commercial structures to the extent

technologically and economically

feasible.

Section 89.142a(f)(1)(ii)

One commenter asserted that noncommercial buildings not used by, or

accessible to, the public are covered in

the federal rules at 30 CFR 817.121(c)

but not covered in Pennsylvania’s

program.

OSM does not agree with the

comment regarding protection of noncommercial buildings. Pennsylvania’s

definition of non-commercial buildings

is substantially the same as the federal

definition at 30 CFR 701.5 and section

89.142a(f)(1)(ii) provides protection to

non-commercial buildings. More

information on this subject can be found

in the discussion of section 5.4(a)(1) of

the BMSLCA.

Section 89.142a(f)(1)(iii)

A commenter noted that this section

provided some exemptions to

protections found in federal regulations

because it does not provide protection

for improvements made after Act 54’s

effective date or date prior to the

operator’s next permit renewal. The

commenter also stated that the federal

rules have a rebuttable presumption of

subsidence-related damage for homes

with the 30-degree angle of draw from

underground mining activities, but

Pennsylvania’s regulations do not

contain a similar presumption for

damages to structures.

OSM agrees with the comment

regarding limitations on protections

being dependent on the date of the

operator’s next permit renewal. As

noted in the discussion in this

rulemaking of section 5.4(a)(3) of the

BMSLCA, the Director did not approve

the phrase ‘‘improvements in place on

the effective date of this section or on

the date of the first publication of the

application for a Mine Activity Permit

or a five-year renewal thereof for the

operations in question and within the

boundary of the entire mine as depicted

in said application.’’

OSM does not agree with the

comment regarding angle of draw. As

noted elsewhere in this rulemaking,

OSM suspended its rules regarding a

rebuttable presumption of causation by

subsidence (30 CFR 817.121(c)(4)(i)

through (iv)) in a December 22, 1999,

Federal Register notice (64 FR 71652).

As a result of the suspension,

Pennsylvania does not need to include

a counterpart to this regulation in its

program.

Section 89.142a(g)

One commenter alleged that

Pennsylvania does not intend to hold

coal operators responsible for damage to

investor-owned utilities, an exemption

not included in the federal rules at 30

CFR 817.180. The commenter felt that

this lack of conformity to the federal

rules would result in higher utility costs

to homeowners.

OSM does not agree with this

comment. The provision of section

89.142a(g)(1) protects all structures

protected by the federal regulations at

30 CFR 817.180. The commenter is

apparently referencing remarks made by

Pennsylvania in the preamble to the

regulations on subsidence damage

repair and water supply replacement. In

the preamble (28 Pa.B. 2767),

Pennsylvania noted that with respect to

the definition of the term ‘‘water

supply’’ it did not want to include

language in that definition that could be

interpreted to include investor-owned

water transmission utilities.

Pennsylvania indicated that the

preamble discussion was made to

illustrate the difference between

connections from a well or spring to a

residence and connections made to a

water main that is part of a public water

supply system. Connections from a well

or spring are permanent affixed

appurtenant structures that must be

repaired by the mine operator if

damaged. Damage to a water main and

that part of the connecting piping that

is owned by the water company would

be covered under Pennsylvania

regulation section 89.142a(g) relating to

protection of utilities.

However, even though section

89.142a(g) protects the same types of

utilities as the federal program it does

not provide the same level of protection

as the federal program. Pennsylvania

protects utilities from underground

mining while the federal program

protects utilities from underground

mining activities. The federal definition

of underground mining activities

includes more activities than the

Pennsylvania definition of underground

mining, which only pertains to removal

of coal. The federal definition of

underground mining activities found at

30 CFR 701.5 includes a combination of

surface operations incident to

underground extraction of coal as well

as underground operations. This would

include construction, use, maintenance,

and reclamation of roads, above-ground

repair areas, storage areas, processing

areas, shipping areas, areas upon which

are sited support facilities including

hoist and ventilating ducts, areas

utilized for the disposal and storage of

waste and areas on which materials

incident to underground mining

operations are placed.

Another commenter suggested that

the word ‘‘prevent’’ should be

substituted for the word ‘‘minimize.’’

Section 89.142a(g) requires

underground mining to minimize

damage, destruction or disruption of

utilities. The federal rules at 30 CFR

817.180 do not require prevention of

damage, but rather minimization, the

same as the Pennsylvania rule.

Therefore, OSM does not agree that the

word ‘‘minimize’’ should be changed.

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67057

Section 89.142a(h)

A commenter claimed that

Pennsylvania’s program does not

provide for the premining monitoring of

flow in perennial streams, which makes

it impossible to determine adverse

impacts by mining operations since no

standard for comparison exists.

OSM does not agree with this

comment. The approved Pennsylvania

program at 25 Pa. Code 89.34 requires

operators to include in their operation

plan a description of streams, including

quantitative seasonal flow conditions.

This information could be used to

determine any adverse impacts to

perennial streams due to underground

mining activities.

Section 89.144a

The Pennsylvania Coal Association

(PCA) commented on the provisions of

section 89.144a(a)(1) regarding an

operator’s relief from responsibility for

repair or compensation for damages to

structures when a landowner refuses

access to an operator for conducting a

premining survey. PCA contends there

is no distinction between the

requirements of the federal regulations

where a landowner loses a rebuttable

presumption of causation if access to an

operator for a premining survey is

denied and the state regulations that

relieve an operator from repair or

compensation requirements when

access is denied. PCA states a

landowner may be able to prove

causation of subsidence damage, but

that establishing the chain of causation

would require extensive technical data

and expert testimony. PCA further

indicates that without a premining

survey, there is no baseline information

for determining an operator’s liability,

which is especially important in

Pennsylvania given the extensive

history of underground mining that

makes damage from subsidence more

likely than other states. Finally, PCA

claims this portion of the program

amendment should be approved

because it is as effective as the federal

regulations, since both the state and

federal regulations are designed to

encourage landowners to cooperate in

premining surveys and to facilitate

collection of baseline information.

(Note: CONSOL, Pennsylvania Services

Corporation, Maple Creek Mining, Inc.

and UMCO Energy, Inc. submitted

letters endorsing this and all other

comments made by PCA).

OSM suspended the regulations (30

CFR 817.121 (c)(4)(i) through (iv))

regarding a rebuttable presumption in

response to a challenge by the National

Mining Association (64 FR 71652). As a

result, 30 CFR 817.121 (c)(4)(iii), which

formerly stated that landowners would

lose the rebuttable presumption if they

refused to let operators on their property

to conduct a premining survey, is no

longer valid. OSM also suspended the

portion of 30 CFR 784.20(a)(3) that

required a specific structural survey of

all EPAct protected structures. At this

time, there is no requirement that a

structural survey be conducted or that a

rebuttable presumption will be applied

to determine if underground mining is

responsible for subsidence damage to

structures. However, the federal rules do

require that owners of structures

damaged by underground mining be

compensated for the damages or that the

damages be repaired by the operator.

The regulations do not relieve an

operator from the obligation of repair or

compensation for damages caused by

subsidence from underground mining.

We acknowledge the difficulty of

assessing the extent of subsidence

damage without a presubsidence survey.

But, exempting an operator from

liability for repair or compensation for

damages because a landowner does not

allow access to the property for a

premining survey does not comply with

the intent of the EPAct provisions. As

more fully discussed in our finding for

5.4(c) of the BMSLCA, premining

damage surveys do not have to be

conducted by an operator to be valid.

The surveys can be conducted by

independent parties hired by the

landowners or even by the landowners

themselves. This information can then

be used by the regulatory authority to

set the amount of compensation or

assess the completeness of repairs. As

stated earlier, in Pennsylvania’s

scenario, the homeowner would have no

relief under BMSLCA even though he

had relevant information that showed

causation. Because the Pennsylvania

program allowed relief from liability

while the federal program does not

contain a similar provision, we found

that this provision of the Pennsylvania

program is not as effective as the federal

requirements.

Section 89.144a(a)(1)

One commenter noted that

Pennsylvania’s rules allow operator’s to

be relieved of liability for damage repair

or compensation if the operator was

denied access to a landowner’s property

for pre- or post-mining surveys. The

commenter argued that if the

homeowner or PADEP has credible

evidence that mining caused the

damage, he should not be punished for

refusing operator surveys of his

property.

OSM agrees with the commenter. The

Director is not approving this provision

because the federal rules requiring

repair or compensation for damage to

non-commercial buildings and

dwellings and related structures [30

CFR 812.121(c)(2)] does not provide

exception for any reason when an

operator’s underground mining

operation has caused subsidence

damage.

Section 89.145a(a)(1)

One commenter indicated that

Pennsylvania’s regulations require

underground miners to take a premining

survey prior to mining within a 1,000

feet of the water supply. The commenter

expressed concern because water supply

damage could occur from mining before

the 1,000-foot distance from a home is

reached.

OSM agrees with the commenter’s

concerns. The federal regulations at 30

CFR 784.20(a)(3) regarding

presubsidence surveys require all

drinking, domestic, or residential water

supplies to be surveyed at the time of

application. As noted in the Director’s

decision above, the Director is not

approving the provision that allows for

water supply surveys to be delayed until

mining advances within 1,000 feet of a

supply and is requiring Pennsylvania to

amend its program to require permittees

to submit the information required by

25 Pa. Code 89.145a(1)(i)–(v) that is

necessary to meet the provisions of 30

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

application for all existing drinking,

domestic, or residential water supplies.

Section 89.152(a)(2)

PCA commented on subsection (2)

that provides that an operator can seek

relief from responsibility for water

supply replacement or restoration if the

contamination, diminution or

interruption is due to underground

mining activities that occurred more

than three years prior to the onset of

water supply contamination,

diminution or interruption. PCA noted

that the operator is required to

affirmatively prove all of the elements of

this defense. The Pennsylvania

Environmental Quality Board has

interpreted this defense as not arising

until three years after the mine has

closed and all reclamation is complete.

PCA contends this time period is long

enough that it should cover all water

supplies affected by underground

mining. PCA further argued that since

Pennsylvania’s program provides for a

rebuttable presumption that water

supplies have been impacted within a

thirty-five degree angle of draw, many

water supplies will be replaced without

67058 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

any proof on the part of the landowner.

Even after three years have elapsed, the

burden remains on the mine operator to

affirmatively prove the elements of the

defense. PCA proposes that for these

reasons, the Pennsylvania program is

more effective in some regards and no

less effective than the federal

regulations.

The Director agrees with PCA’s

contention that using the angle of draw

in determining operator liability is an

effective tool to assist regulators in

requiring restoration or replacement for

those supplies located within the angle

of draw. However, the regulation could

allow operators to be relieved from

liability for replacement of some water

supplies whether or not they are within

the angle of draw, if more than three

years elapsed after mine closing before

the water supply is affected. When

promulgating the federal regulations

requiring replacement or restoration of

water supplies, OSM indicated that

even in cases where the landowner did

not need a restored or replaced water

supply to meet the postmining land use,

the permittee would still be required to

demonstrate the availability of a water

source equivalent to premining quantity

and quality so that the current owner or

his or her successor could utilize the

water if desired in the future (60 FR

16727). In making this statement, OSM

envisioned that water supplies would be

available under all circumstances for

both present and future uses. While

under section 25 Pa. Code 89.152(a)(2),

Pennsylvania has left open the

possibility that some water supplies will

not replaced or restored, the federal

regulation intended restoration or

replacement of all water supplies

without exception. As more fully

discussed in the findings for 5.2(e)(2) of

BMSLCA and 25 Pa. Code 89.152(a)(2),

which are incorporated herein, the

Director has not approved section 25 Pa.

Code 89.152(a)(2).

Another commenter asserted that an

operator does not have to replace a

water supply if the loss occurred more

than three years after the mining ceased

and that the federal rules do not provide

for this exemption. As stated above,

OSM agrees.

Section 89.152(a)(4)

PCA commented on the provisions of

this section that provide that an

operator will not be liable for water

supply replacement if the claim is made

more than two years after the supply has

been adversely affected. PCA argued

that in the case of the two-year statute

of limitations, the state has adopted an

appropriate limitations period from

existing state law. The two-year period

is the same as that provided for common

law water rights claims. PCA contended

that federal law would likely assume the

same limitations period and cited

DelCostello v. International Brotherhood

of Teamsters, 462 U.S. 151, 158 (1983)

in support of its position. PCA indicated

that this case provides that in the

absence of an express limitations period

in federal law, the analogous provision

from state law should be adopted.

Because there is no statute of limitations

in SMCRA or EPAct, nor is any apparent

federal policy served by a different

federal limitation period, PCA asserted

that the two-year period of this

regulation is appropriate.

As discussed more fully in our

finding regarding this section, we

disagree that any statute of limitations is

applicable. Additionally, the

applicability of the two-year statute of

limitations (generally used for torts) for

water replacement has been rejected by

the Commonwealth Court of

Pennsylvania in Carlson Mining

Company v. Department of

Environmental Resources, 639 A.2d

1332, 1337 (1994). In Carlson, a coal

company argued that Pennsylvania’s

funding mechanism for increased water

operation and maintenance costs

constituted damages under tort law. The

court disagreed, stating that a ‘‘water

supply replacement order is not a civil

action based on a tort; it is based on the

Commonwealth’s police power.’’ Id. at

1337. While this case involved a surface

coal mining operation, OSM believes

that the rationale is applicable to

underground coal mining operations

since any operator who refuses to

replace a water supply covered under

the provisions of Act 54, would also be

issued an order by Pennsylvania. See,

5.2(a)(3) and 5.2(b)(2) of the BMSLCA.

Therefore, based on our findings, the

Director has not approved section

89.152(a)(4).

Another commenter contended that

this section was contrary to the federal

rules. As stated above, OSM agrees.

Section 89.152(a)(5)

PCA commented on this provision

that allows compensation to landowners

in lieu of water supply replacement if

an affected water supply is not replaced

within three years. PCA claims this

option would be rarely used but would

give operators and landowners

flexibility in dealing with a situation

where restoration of water supplies is

difficult. PCA proposes that

Pennsylvania’s regulations generally

obligate operators to provide water

replacement, but provide fair and

reasonable provision for where

circumstances make permanent

restoration of affected water supplies

impossible.

Finally, PCA noted that the buy out

provision would not alter a mine

operator’s obligation to identify the

availability of an alternative water

source.

The Director does not agree with the

comments. In the preamble to the

federal regulations, OSM responded to a

commenter with a similar viewpoint,

i.e., that compensation be available as

an option for those limited

circumstances where an impacted

supply cannot be restored (60 FR

16733). In response, OSM stated, ‘‘[t]he

terms of the Energy Policy Act

unequivocally require replacement.

Further, OSM does not anticipate that

underground mining operations will be

unable to comply with this statutory

mandate. For example, if the permittee

is unable to restore a spring or aquifer,

the permittee should still be able to

provide water from an alternative

source, such as a public water supply,

or by pipeline from another location.’’

The Director has not approved section

89.152(a)(5) because it provides

compensation rather than restoration or

replacement as required by federal

regulations and SMCRA.

Another commenter stated that 25 Pa.

Code 89.152(a)(5)(ii) provides for

voluntary agreements and payments

instead of replacement of a water

supply, which is required by the federal

rules. OSM agrees for the reasons stated

above.

PCA also commented on financial

guarantees for subsidence repair. PCA

contended that although the proposed

program amendment does not require

adjustment of the performance bond

amount if subsidence causes damage to

protected structures, bond adjustment is

clearly authorized by Pennsylvania’s

primacy regulations. PCA noted that

while Act 54 does not require

adjustment of the bonds for subsidence

damage, it does mandate use of an

escrow mechanism to assure funds are

available to mitigate damage. Operators

are required to deposit funds in the

escrow within six months if they wish

to contest the repair obligations, or have

not complied with the obligations. PCA

stated that the escrow option guarantees

the repair or compensation obligations

of section 720 of SMCRA.

Other commenters presented the

opposing view that Pennsylvania’s

current bonding system is not sufficient

to assure correction of subsidence

related damage. One commenter

asserted that the longwall mining

regulations must be strengthened to

shift the balance of power from the coal

companies to a middle ground between

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67059

coal operators and homeowners. The

commenter discussed the disruption

subsidence from longwall mining exacts

on personal and professional lives and

stated that the bond posted should be

equal to the fair market value of the

home.

Two other commenters indicated that

Pennsylvania has no provision to bond

for water loss and, in practice, requires

only a $10,000 bond for structure repair.

The commenters further claimed that

homeowners need to be assured that

funds are available for complete repairs

and for water supplies, which could

mean extensive new water lines in some

areas.

OSM agrees with the comment

regarding the federal requirement for

submission of additional bond in the

event subsidence related material

damage occurs to protected land,

structures and facilities or when

contamination, diminution, or

interruption occurs to protected water

supplies.

The Director has required

Pennsylvania to amend its program to

include bonding provisions as effective

as those found in 30 CFR 817.121(c)(5).

Please see the Director’s findings

regarding section 6 of the BMSLCA for

more information.

One commenter opined that if a coal

operator lacks the means to post an

adequate subsidence bond, then the

operation should not be permitted.

OSM does not agree with this

comment. The federal requirements for

posting additional bond come into play

only after subsidence damage has

occurred and ninety days have elapsed

without the operator completing the

required repair, compensation, or

replacement. The ninety days can be

extended to one year under certain

circumstances. There is no federal

requirement for operators to

demonstrate that additional bonds can

be obtained prior to subsidence

occurring. Even if premining surveys

determine that subsidence damage is

likely to occur at the time of the

application, operators will not need to

increase their bond if the repair,

compensation or replacement occurs

within the allotted time frames.

General Public Comments

A general comment was made

regarding imminent danger. A

commenter stated that the threat of

danger rather than the manifestation of

the damage should be sufficient to

suspend operations in imminent danger

situations.

OSM believes the commenter’s

concern is addressed by section 9.1(a) of

the BMSLCA. This section requires that

if the Department determines and

notifies a mine operator that a proposed

mining technique or extraction ratio

will result in subsidence that causes an

imminent hazard to human safety, the

technique or extraction ratio will not be

permitted unless the mine operator,

prior to mining, takes measures

approved by the Department to

eliminate the imminent hazard. The

Director found that this section is

consistent with 30 CFR 817.121(f),

which requires the suspension of

underground mining if imminent danger

is found to inhabitants of urbanized

areas, cities, towns or communities.

A commenter also indicated that OSM

should require Pennsylvania to mandate

that the protection of 522(e)(5) of

SMCRA, regarding prohibiting mining

within 300 feet of an occupied dwelling

unless waived by the owner, should be

applied to underground mining.

On December 17, 1999, OSM

published a rule in the Federal Register

(64 FR 70838) in which we stated that

we interpret sections 522(e) and 701(28)

of SMCRA and the implementing rules

to provide that subsidence due to

underground mining is not a surface

coal mining operation. Subsidence,

therefore, is not prohibited in areas

protected under the Act. Neither

subsurface activities that may result in

subsidence, nor actual subsidence, are

prohibited on lands protected by section

522(e).

During the public hearing several

commenters expressed dissatisfaction

with the longwall mining process in

general because of the damage

subsidence causes to homes and water

supplies. The Director notes that one of

the purposes of SMCRA as stated at

section 102(k) is to ‘‘encourage the full

utilization of coal resources through the

development and application of

underground extraction technologies.’’

The longwall mining process has been

proven to be an efficient way to insure

the full utilization of coal resources.

While damage to structures and water

supplies is a regrettable consequence of

longwall mining, the Energy Policy Act

of 1992 was passed to insure that

compensation for, or repair of, damages

to structures and replacement of

adversely affected water supplies was

made. The Director finds that longwall

mining is permissible under SMCRA but

that operators have an obligation, as

noted under the federal regulations, to

minimize damage and to repair or

compensate landowners for damages

that occur.

Two commenters voiced concerns

about protection of utilities. One of the

commenters alleged that underground

mining destroys natural gas wells. The

Director has specified that the federal

regulations at 30 CFR 817.180 require

all underground mining activities to be

conducted in a manner that minimizes

damage, destruction or disruption of

services provided by oil, gas, and water

wells, as well as additional utility

installations, unless the owner of the

utility and the regulatory authority

approve otherwise. This regulation was

not modified by the passage of EPAct.

Thus, impacts to gas wells are allowed

if approved by the regulatory authority

and the well’s owner.

The second commenter noted that a

ruling made by Pennsylvania’s

Environmental Hearing Board

concluded that mere notification of

intent to longwall mine beneath a public

utility installation is insufficient to

prevent damage to that installation. The

commenter further noted that the

standard requiring prevention of

damage to a public utility was based on

section 4 of the BMSLCA (52 P.S.

1406.4) that has since been repealed, but

that Pennsylvania’s Environmental

Quality Board changed the word

‘‘prevent’’ to ‘‘minimize’’ without public

input.

In our review of section 4 of the

BMSLCA we found that, prior to its

repeal, it provided protection from

subsidence to municipal utilities or

municipal public service operations

(and other structures) in place on April

27, 1966. The Director is approving the

repeal of section 4 because the federal

regulations do not contain any

provisions for protection of structures

and utilities in place as of April 27,

1966.

V. Director’s Decision

Based on the findings above we are

approving the amendments to the

Pennsylvania program, except as noted

below.

BMSLCA

Section 5(b) (52 P.S. 1406.5(b)) is

required to be amended to change the

reference to section 6(a) to section 6(b).

Section 5.1(a)(1) (52 P.S.

1406.5a(a)(1)) is required to be amended

to require the prompt replacement of all

water supplies.

Section 5.1(b) (52 P.S. 1406.5a(b)) is

not approved.

At section 5.2(b)(2) (52 P.S.

1406.5b(b)(2)) the phrase, ‘‘* * * where

the contamination, diminution or

interruption does not abate within three

years of the date on which the supply

was adversely affected’’ is not approved.

Additionally this section is approved to

the extent that Pennsylvania recognizes

that the approved program regarding

response to citizen complaints may

67060 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

require a more timely response to

complaints than that required by this

section.

At section 5.2(d) (52 P.S. 1406.5b(d))

the sentence stating, ‘‘Wherever a mine

operator, upon request, has been denied

access to conduct a premining survey

and the mine operator thereafter served

notice upon the landowner by certified

mail or personal service, which notice

identified the rights established by

sections 5.1 and 5.3 and this section,

was denied access and the landowner

failed to provide or authorize access

within ten days after receipt thereof,

then such affirmative proof shall

include premining baseline data,

provided by the landowner or the

department, relative to the affected

water supply,’’ is not approved.

Section 5.2(e)(2) (52 P.S.

1406.5b(e)(2)) is not approved.

Section 5.2(g) (52 P.S. 1406.5b(g)) is

not approved.

Section 5.2(h) (52 P.S. 1406.5b(h)) is

not approved.

At section 5.2(i) (52 P.S. 1406.5b(i))

the phrase ‘‘and of reasonable cost’’ is

not approved.

Section 5.3(a) (52 P.S. 1406.5c(a)) is

approved to the extent that agreements

to replace a water supply or provide an

alternative water supply meet the

requirements established in the federal

definition of ‘‘replacement of water

supply’’ found at 30 CFR 701.5. This

provision is not approved to the extent

it allows compensation in lieu of

restoration or replacement of affected

water supplies.

Section 5.3(b) (52 P.S. 1406.5c(b)) is

not approved to the extent that section

5.3(a) (52 P.S. 1406.5c(a)) is not

approved.

Section 5.3(c) (52 P.S. 1406.5c(c)) is

not approved to the extent any state law

negates or provides less protection than

EPAct.

Section 5.4(a) (52 P.S. 1406.5d) must

be amended to require the prompt repair

and compensation for the structures

protected under section 720(a)(1) of

SMCRA and 30 CFR 817.121(c)(2).

At section 5.4(a)(3) (52 P.S.

1406.5d(a)(3)) the phrase, ‘‘in place on

the effective date of this section or on

the date of first publication of the

application for a Mine Activity Permit

or a five-year renewal thereof for the

operations in question and within the

boundary of the entire mine as depicted

in said application’’ is not approved.

Section 5.4(c) (52 P.S. 1406.5d(c)) is

not approved.

Section 5.5(a) (52 P.S. 1406.5e(a)) is

required to be amended to make it clear

that operators are responsible for repair

or compensation to landowners of

structures damaged by subsidence from

underground mining operations.

Section 5.5(b) (52 P.S. 1406.5e(b)) is

not approved.

Section 5.5(c) (52 P.S. 1406.5e(c)) is

approved to the extent that

Pennsylvania recognizes the approved

program regarding response to citizen

complaints may require a more timely

response to complaints than that

required by this section. Additionally,

the portion of 5.5(c) that states, ‘‘***

within six months or a longer period if

the department finds that the

occurrence of subsidence or subsequent

damage may occur to the same building

as a result of mining,’’ is not approved.

Finally, this section is required to be

amended to insure that any written

damage determinations made by PADEP

will take into account subsidence due to

underground coal mining operations, as

required by SMCRA.

At section 5.5(f) (52 P.S. 1406.5e(f))

the phrase, ‘‘* * * within six months or

longer or such period as the department

has established or fail to perfect an

appeal of the department’s order

directing such repair or compensation’’

is not approved.

At section 5.6(c) (52 P.S. 1406.5f(c))

the following two sentences are not

approved: ‘‘Nothing herein shall impair

agreements entered into after April 27,

1966, and prior to the effective date of

this section, which, for valid

consideration, provide for a waiver or

release of any duty to repair or

compensate for subsidence damage. Any

such waiver or release shall only be

valid with respect to damage resulting

from the mining activity contemplated

by such agreement.’’

Section 5.6(d) (52 P.S. 1406.5f(d)) is

not approved to the extent that section

5.6(c) is not approved.

Section 6 (52 P.S. 1406.6) must be

amended to comply with the provisions

of 30 CFR 817.121(c)(5), which requires

a permittee to obtain additional

performance bond when subsidence

related material damage to land or

structures occurs, or when a protected

water supply is contaminated,

diminished or interrupted. The

additional bond must be in the amount

of the estimated repairs or in the

amount of the decrease in value of a

protected structure or in the amount of

the estimated cost to replace a protected

water supply if the repair, compensation

or replacement takes longer than 90

days.

The Regulations at 25 Pa. Code Chapter

89

In section 89.5, the definition of ‘‘de

minimis cost increase’’ is not approved.

In section 89.5, the definition of ‘‘fair

market value’’ is not approved.

In section 89.5, the phrase ‘‘securely

attached to the land surface’’ in the

definition of ‘‘permanently affixed

appurtenant structures’’ is not

approved.

Section 89.141(d)(3) is to be amended

to require subsidence control plans to

provide a description of the measures to

be taken to ensure subsidence will not

cause material damage to, or reduce the

reasonably foreseeable uses of, all the

structures or features protected under 30

CFR 784.20(b)(5).

Section 89.141(d)(6) is to be amended

to insure the requirements of 30 CFR

784.20(b)(5) and (b)(7) are met when

occupied residential dwellings and

structures related thereto and

community or institutional buildings

are not protected by 25 Pa. Code

89.141(d)(3) and they are materially but

not irreparably damaged.

Section 89.142a(c)(3) is to be

amended to insure that Pennsylvania

has the discretion to suspend mining in

cases where the initial subsidence

control plan or the operator’s actions

fail to prevent material damage, until

the operator’s subsidence control plan

ensures the prevention of further

material damage, as required in 30 CFR

817.121(e).

Section 89.142a(d) is required to be

amended to insure the prevention or

minimization of material damage to

occupied residential dwellings and

community or institutional buildings.

Section 89.142a(f)(1) is required to be

amended to be no less effective than 30

CFR 817.121(c) in requiring prompt

repair or compensation to landowners.

In section 89.142a(f)(1)(iii), the

portion of the amendment that states,

‘‘* * * or on the date of first

publication of the application for a coal

mining activity permit or a 5-year

renewal thereof for the operations in

question and within the boundary of the

entire mine as depicted in the

application’’ is not approved.

Section 89.142a(g)(1) is required to be

amended to require all underground

mining activities to be conducted in a

manner consistent with 30 CFR 817.180.

In section 89.143a(c), the portion that

states, ‘‘* * * within 6 months of the

date that the building owner sent the

operator notification of subsidence

damage to the structure * * *’’ is not

approved. Additionally, the phrase,

‘‘within 2 years of the date damage to

the structure occurred * * *’’ is also

not approved.

In section 89.143a(d)(3), the portion

which states, ‘‘* * * within 6 months of

the date of issuance of the order. The

Department may allow more than 6

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67061

months if the Department finds that

further damage may occur to the same

structure as a result of additional

subsidence’’ is not approved.

Section 89.144a(a)(1) is not approved.

Section 89.145a(a)(1) is required to be

amended to include provision that the

survey information that need only be

acquired to the extent that it can be

collected without extraordinary efforts

or expenditures of excessive sums of

money, is only applicable when it

applies to inconveniencing landowners.

The amendment must remove the

provision that allows for water supply

surveys to be delayed until mining

advances within 1000 feet of a supply.

Finally, this section must also be

amended to require permittees to submit

the information required by 25 Pa. Code

89.145a(a)(1)(i)–(vi) that is necessary to

meet the provisions of 30 CFR

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

application for all existing drinking,

domestic, or residential water supplies.

Section 89.145a(b) is required to be

amended to be no less effective than 30

CFR 817.41(j) in requiring prompt

replacement or restoration of water

supplies. Additionally section

89.145a(b) is required to be amended, if

necessary, to ensure that the phrase

‘‘satisfy the water user’s needs and the

demands of any reasonably foreseeable

uses’’ is consistent with the actual use

and the reasonably foreseeable use of

the supply, regardless of whether the

current owner has demonstrated plans

for the use.

Section 89.145a(e)(1) is required to be

amended to assure the prompt supply of

temporary water to all landowners

whose water supply has been impacted

by underground mining, regardless of

whether the water supply is within the

area of presumptive liability.

Section 89.145a(e)(2) is required to be

amended to require the restoration of

water quantity in temporary water

supplies to the same level as permanent

water supplies, as noted in 25 Pa. Code

89.145a(f)(3).

Section 89.145a(f)(1)(v) is not

approved to the extent that it passes de

minimis cost increases for operation and

maintenance of water supplies to

landowners.

Sections 89.145a(f)(3)(i) and (ii) are

required to be amended, if necessary, to

ensure that the phrase ‘‘satisfy the water

user’s needs and the demands of any

reasonably foreseeable uses’’ is

consistent with the actual use and the

reasonably foreseeable uses.

Section 89.146a(c) is approved to the

extent that it is consistent with, or more

timely than, the citizen complaint

procedures. However, Pennsylvania is

required to amend its program to the

extent the time frames are longer than

the citizen complaint procedures.

Section 89.152(a)(2) is not approved.

Section 89.152(a)(4) is not approved

Section 89.152(a)(5)(i) is not

approved.

Section 89.152(a)(5)(ii) is approved to

the extent that the agreement to replace

a water supply or provide an alternative

water supply meets the requirements

established in the federal definition of

‘‘replacement of water supply’’ found at

30 CFR 701.5. This section is not

approved for agreements that provide

for replacement of or an alternate

supply of water to the extent that water

supply will not meet the requirements

of the federal definition. This section is

also not approved to the extent that it

allows compensation in lieu of

restoration or replacement of affected

water supplies.

Sections 89.141(d), 89.141(d)(9),

89.142a(a), 89.142a(f)(1), 89.142a(f)(2)(i),

89.142a(h)(1), 89.142a(h)(2),

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

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

89.155(b)(1) and (2), and 89.155(c) are

required to be amended to be no less

stringent than section 720(a) of SMCRA

with regard to the definition of

underground mining operations.

We find that good cause exists under

5 U.S.C. 553(d)(3) to make this final rule

effective immediately. Section 503(a) of

SMCRA requires that the state’s program

demonstrates that the state has the

capability of carrying out the provisions

of the Act and meeting its purposes.

Making this regulation effectively

immediately will expedite that process.

Additionally, 30 CFR 732.17(h)(12)

requires decisions approving or

disapproving program amendments to

be published in the Federal Register

and ‘‘* * * shall be effective upon

publication unless the notice specifies a

different effective date.’’

VI. Effect of Director’s Decision

Since July 28, 1995, enforcement of

EPAct requirements in Pennsylvania has

occurred under 30 CFR 843.25(a)(4)

with a combination of state enforcement

and direct federal enforcement. This

portion of the notice explains how the

Director’s decision on the proposed

amendment affects the regulation of

underground mining impacts in

Pennsylvania.

Section 2504 of EPAct added section

720 to SMCRA. Section 720(a)(1)

required prompt repair or compensation

for material damage to non-commercial

buildings and occupied residential

dwellings and related structures as a

result of subsidence due to underground

coal mining operations, and section

720(a)(2) required prompt replacement

of certain identified water supplies

adversely affected by underground coal

mining operations. Section 720 also

required that these protections be in

place immediately for all underground

coal mining operations conducted after

October 24, 1992.

To implement the water supply

replacement and structure damage

repair requirements, OSM solicited

comments in a March 31, 1995, Federal

Register notice (60 FR 16750–16751),

and on July 28, 1995, OSM decided that

initial enforcement of EPAct

requirements in Pennsylvania under 30

CFR 843.25(a)(4) would be

accomplished through a combination of

state and OSM enforcement (60 FR

38685–38689). Under the initial

enforcement process, Pennsylvania

agreed to investigate all subsidencerelated complaints and take remedial

action. Pennsylvania advised that it

would defer to OSM in those situations

where the federal rules provide greater

relief for the complainant under

817.41(j), and 817.121(c)(2). Finally,

under 30 CFR 843.25(b)(3), direct

federal enforcement is to remain in

effect in states with approved regulatory

programs until OSM approves, under

Part 732, provisions consistent with

sections 817.41(j) and 817.121(c)(2).

Water Supply Replacement: As

discussed in this notice, the Director is

approving provisions that are no less

effective than EPAct, and several

provisions that extend protection

beyond the counterpart federal

standards. Extended coverage includes a

rebuttable presumption for temporary

water supplies and protection of

agricultural water supplies. However,

the Director is not approving several

provisions affording less protection than

the minimum level required under

EPAct. These include provisions that

allowed the operator to provide

compensation to landowners in lieu of

water supply replacement if the water

supply is not restored or replaced

within three years, time limits on the

filing of claims for affected water

supplies, and a provision that allowed

up to three years to pass before an order

for a permanent alternate water supply

must be issued. Finally, the Director has

required a number of amendments to

the Pennsylvania program. The required

amendments include the provision of

prompt replacement of all adversely

affected supplies, and that water supply

surveys of existing supplies be

submitted at the time of the permit

application.

The Director’s decision will result in

continued case-by-case direct federal

enforcement in Pennsylvania to carry

out the requirements of 30 CFR 817.41(j)

67062 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

with respect to water supply

replacement provisions. For example,

while Pennsylvania’s provisions require

prompt temporary replacement of an

adversely affected supply within the

rebuttable presumption zone, the

provisions do not address prompt

temporary or permanent water supply

replacement under any other

circumstances. While the Director has

required Pennsylvania to submit an

amendment to address this issue, the

water supply replacement provisions of

30 CFR 817.41(j) will continue to be

implemented by PADEP to the extent of

its authority and supplemented by

direct federal enforcement, as needed on

a case-by-case basis to assure prompt

replacement of affected supplies. For

those water replacement related

provisions that are now part of the

approved program, OSM will monitor

state performance and enforcement

though the normal oversight process.

Structure Repair and Compensation:

As discussed in this notice, the Director

is approving provisions that are no less

effective than EPAct, and several

provisions extending greater protection

than the minimum federal standards.

These include structure compensation

provisions that provide for

reimbursement based upon the cost to

repair or replace, reimbursement of

associated temporary relocation costs,

repair or compensation for certain

agricultural structures, and an

irreparable damage standard requiring

permission of the property owner to

proceed with the subsidence related

activities. However, the Director is not

approving proposed provisions resulting

in less protection than that afforded

under EPAct. These include the denial

of subsidence repair and compensation

based upon the refusal of access for presubsidence surveys, time limits on the

filing of claims for subsidence damage,

and a provision that would prevent

PADEP from issuing orders requiring

repair and compensation until six

months after a property owner had

notified the permittee of subsidence

damage. Finally, the Director has

required a number of amendments to

the Pennsylvania program, including

the provision of prompt repair and

compensation for occupied dwellings

and non-commercial buildings and the

development of subsidence damage

bonding requirements consistent with

the federal standards.

The Director’s decision will result in

continued case-by-case direct federal

enforcement in Pennsylvania to carry

out the requirements of 30 CFR

817.121(c)(2) with respect to structure

repair and/or compensation. For

example, Pennsylvania’s proposed

amendment did not require prompt

repair and compensation for all

structures covered under EPAct, did not

cover all underground operations, did

not cover certain related structures, and

placed conditions on property owners

that could limit structure repair and/or

compensation to levels below the

minimum federal standards. The

Director has not approved certain of

these provisions and required

Pennsylvania to submit amendments to

address the aforementioned and other

issues. Until such time as the required

amendments are approved, the

provisions of 30 CFR 817.121(c)(2) will

continue to be implemented by PADEP

through state provisions supplemented

by direct federal enforcement, as needed

on a case-by-case basis to assure prompt

repair of, and or compensation for, all

covered structures. For those structure

damage-related provisions that are now

part of the approved program, OSM will

monitor state performance and

enforcement though the normal

oversight process.

Finally, Section 503 of SMCRA

provides that a state may not exercise

jurisdiction under SMCRA unless the

state program is approved by the

Secretary. Similarly, 30 CFR 732.17(a)

requires that any change of an approved

state program be submitted to OSM for

review as a program amendment. The

Federal regulations at 30 CFR 732.17(g)

prohibit any changes to approved state

programs that are not approved by OSM.

In the oversight of the Pennsylvania

program, we will recognize only the

statutes, regulations and other materials

we have approved, together with any

consistent implementing policies,

directives and other materials. We will

require Pennsylvania to enforce only

approved provisions.

VII. Procedural Determinations

Executive Order 12866—Regulatory

Planning and Review

This rule is exempted from review by

the Office of Management and Budget

under Executive Order 12866.

Executive Order 12630—Takings

This rule does not have takings

implications. This determination is

based on the analysis performed for the

counterpart federal regulation.

Executive Order 12988—Civil Justice

Reform

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988 and

has determined that, to the extent

allowed by law, this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of state regulatory

programs and program amendments

since each such program is drafted and

promulgated by a specific state, not by

OSM. Under sections 503 and 505 of

SMCRA (30 U.S.C. 1253 and 1255) and

30 CFR 730.11, 732.15, and

732.17(h)(10), decisions on proposed

state regulatory programs and program

amendments submitted by the states

must be based solely on a determination

of whether the submittal is consistent

with SMCRA and its implementing

federal regulations and whether the

other requirements of 30 CFR parts 730,

731, and 732 have been met.

Executive Order 13132—Federalism

This rule does not have federalism

implications. SMCRA delineates the

roles of the federal and state

governments with regard to the

regulation of surface coal mining and

reclamation operations. One of the

purposes of SMCRA is to ‘‘establish a

nationwide program to protect society

and the environment from the adverse

effects of surface coal mining

operations.’’ Section 503(a)(1) of

SMCRA requires that state laws

regulating surface coal mining and

reclamation operations be ‘‘in

accordance with’’ the requirements of

SMCRA, and section 503(a)(7) requires

that state programs contain rules and

regulations ‘‘consistent with’’

regulations issued by the Secretary

pursuant to SMCRA.

Executive Order 13211—Regulations

That Significantly Affect the Supply,

Distribution, or Use of Energy

On May 18, 2001, the President issued

Executive Order 13211 which requires

agencies to prepare a Statement of

Energy Effects for a rule that is (1)

considered significant under Executive

Order 12866, and (2) likely to have a

significant adverse effect on the supply,

distribution, or use of energy. Because

this rule is exempt from review under

Executive Order 12866, and because it

is not expected to have a significant

adverse effect on the supply,

distribution, or use of energy, a

Statement of Energy Effects is not

required.

National Environmental Policy Act

This rule does not require an

environmental impact statement

because section 702(d) of SMCRA (30

U.S.C. 1292(d)) provides that agency

decisions on proposed state regulatory

program provisions do not constitute

major Federal actions within the

meaning of section 102(2)(C) of the

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67063

National Environmental Policy Act (42

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

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by the Office of

Management and Budget under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior

certifies that this rule will not have a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The state submittal,

which is the subject of this rule, is based

upon counterpart federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities. In

making the determination as to whether

this rule would have a significant

economic impact, the Department relied

upon the data and assumptions for the

counterpart federal regulation.

Small Business Regulatory Enforcement

Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule: (a) Does not have an annual

effect on the economy of $100 million;

(b) Will not cause a major increase in

costs or prices for consumers,

individual industries, federal, state, or

local government agencies, or

geographic regions; and (c) Does not

have significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S. based enterprises to compete

with foreign-based enterprises. This

determination is based upon the fact

that the state submittal, which is the

subject of this rule, is based upon

counterpart federal regulations for

which an analysis was prepared and a

determination made that the federal

regulation was not considered a major

rule.

Unfunded Mandates

This rule will not impose an

unfunded mandate on state, local, or

tribal governments or the private sector

of $100 million or more in any given

year. This determination is based upon

the fact that the state submittal, which

is the subject of this rule, is based upon

counterpart federal regulations for

which an analysis was prepared and a

determination made that the federal

regulation did not impose an unfunded

mandate.

List of Subjects in 30 CFR Part 938

Intergovernmental relations, Surface

mining, Underground mining.

Dated: June 29, 2001.

Allen D. Klein,

Regional Director, Appalachian Regional

Coordinating Center.

For the reasons set out in the

preamble, Title 30, chapter VII,

subchapter T of the Code of Federal

Regulations is amended as set forth

below:

PART 938—PENNSYLVANIA

1. The authority citation for part 938

continues to read as follows:

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

2–3. Section 938.12 is added to read

as follows:

§ 938.12 State statutory, regulatory, and

proposed program amendment provisions

not approved.

(a) We are not approving the

following provisions or portions of

provisions of the proposed program

amendment that Pennsylvania

submitted on July 29, 1998:

(1) Section 5.1(b) (52 P.S. 1406.5a(b))

of the BMSLCA.

(2) At section 5.2(b)(2) (52 P.S.

1406.5b(b)(2)) of the BMSLCA, the

phrase, ‘‘* * * where the

contamination, diminution or

interruption does not abate within three

years of the date on which the supply

was adversely affected.’’

(3) At section 5.2(d) (52 P.S.

1406.5b(d)) of the BMSLCA the phrase,

‘‘Wherever a mine operator, upon

request, has been denied access to

conduct a premining survey and the

mine operator thereafter served notice

upon the landowner by certified mail or

personal service, which notice

identified the rights established by

sections 5.1 and 5.3 and this section,

was denied access and the landowner

failed to provide or authorize access

within ten days after receipt thereof,

then such affirmative proof shall

include premining baseline data,

provided by the landowner or the

department, relative to the affected

water supply.’’

(4) Section 5.2(e)(2) (52 P.S.

1406.5b(e)(2)) of the BMSLCA.

(5) Section 5.2(g) (52 P.S. 1406.5b(g))

of the BMSLCA.

(6) Section 5.2(h) (52 P.S. 1406.5b(h))

of the BMSLCA.

(7) At section 5.2(i) (52 P.S.

1406.5b(i)) of the BMSLCA the phrase,

‘‘and of reasonable cost.’’

(8) The portion of section 5.3(a) (52

P.S. 1406.5c(a)) of the BMSLCA that

allows agreements for water

replacement that do not fully comply

with federal requirements for restoration

or replacement of water supplies.

Additionally, the portion of section

5.3(a) (52 P.S. 1406.5c(b)) that allows

compensation in lieu of restoration or

replacement of affected water supplies.

(9) Section 5.3(b) (52 P.S. 1406.5c(b))

of the BMSLCA is not approved to the

extent that section 5.3(a) (52 P.S.

1406.5c(a)) is not approved.

(10) Section 5.3(c) (52 P.S. 1406.5c(c))

of the BMSLCA is not approved to the

extent any state law negates or provides

less protection than EPAct.

(11) At section 5.4(a)(3) (52 P.S.

1406.5d(a)(3)) the phrase, ‘‘in place on

the effective date of this section or on

the date of first publication of the

application for a Mine Activity Permit

or a five-year renewal thereof for the

operations in question and within the

boundary of the entire mine as depicted

in said application.’’

(12) Section 5.4(c) (52 P.S. 1406.5d(c))

of the BMSLCA.

(13) Section 5.5(b) (52 P.S. 1406.5e(b))

of the BMSLCA.

(14) At section 5.5(c) (52 P.S.

1406.5e(c)) of the BMSLCA, the phrase,

‘‘* * * within six months or a longer

period if the department finds that the

occurrence of subsidence or subsequent

damage may occur to the same building

as a result of mining.’’

(15) At section 5.5(f) (52 P.S.

1406.5e(f)) of the BMSLCA, the phrase,

‘‘* * * within six months or longer or

such period as the department has

established or fail to perfect an appeal

of the department’s order directing such

repair or compensation.’’

(16) At section 5.6(c) (52 P.S.

1406.5f(c)) of the BMSLCA, the

following two sentences: ‘‘Nothing

herein shall impair agreements entered

into after April 27, 1966, and prior to

the effective date of this section, which,

for valid consideration, provide for a

waiver or release of any duty to repair

or compensate for subsidence damage.

Any such waiver or release shall only be

valid with respect to damage resulting

from the mining activity contemplated

by such agreement.’’

(17) Section 5.6(d) (52 P.S. 1406.5f(d))

of the BMSLCA is not approved to the

extent that section 5.6(c) has not been

approved.

(18) At 25 Pa. Code 89.5, the

definition of ‘‘de minimis cost

increase.’’

(19) At 25 Pa. Code 89.5, the

definition of ‘‘fair market value.’’

(20) At 25 Pa. Code 89.5, the phrase

‘‘securely attached to the land surface’’

67064 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

in the definition of ‘‘permanently

affixed appurtenant structures.’’

(21) 25 Pa. Code 89.142a(f)(1)(iii) the

portion of the amendment that states,

‘‘* * * or on the date of first

publication of the application for a coal

mining activity permit or a 5-year

renewal thereof for the operations in

question and within the boundary of the

entire mine as depicted in the

application.’’

(22) At 25 Pa. Code 89.143a(c) the

portion which states, ‘‘* * * within 6

months of the date that the building

owner sent the operator notification of

subsidence damage to the structure

***’’ and the portion which states,

‘‘within 2 years of the date damage to

the structure occurred.’’

(23) At 25 Pa. Code 89.143a(d)(3), the

portion of the amendment that states,

‘‘* * * within 6 months of the date of

issuance of the order. The Department

may allow more than 6 months if the

Department finds that further damage

may occur to the same structure as a

result of additional subsidence.’’

(24) 25 Pa. Code 89.144a(a)(1).

(25) The portion of 25 Pa. Code

89.145a(a)(1) that allows for water

supply surveys to be delayed until

mining advances within 1,000 feet of a

supply.

(26) The portion of 25 Pa. Code

89.145a(f)(1)(v) that passes de minimis

cost increases for operation and

maintenance of water supplies to

landowners.

(27) 25 Pa. Code 89.152(a)(2).

(28) 25 Pa. Code 89.152(a)(4).

(29) 25 Pa. Code 89.152(a)(5)(i).

(30) 25 Pa. Code 89.152(a)(5)(ii) is not

approved for agreements that provide

for replacement of an alternate supply of

water to the extent that the water supply

will not meet the federal definition of

replacement of water supply. The

section is also not approved to the

extent it allows compensation in lieu of

restoration or replacement of affected

water supplies.

(b) [Reserved]

4. Section 938.15 is amended in the

table by adding a new entry in

chronological order by ‘‘Date of Final

Publication’’ to read as follows:

§ 938.15 Approval of Pennsylvania

regulatory program amendments.

* * * * *

Original amendment submission date Date of final publication Citation/description

*******

July 29, 1998 ...................... December 27, 2001 ........... Bituminous Mine Subsidence and Land 2001 Conservation Act: Repeal of Section 4

(52 P.S. 1406.4); 5(b)(partial approval); 5.1(a)(1) (52 P.S. 1406.5a(a)(1) (conditional approval); 5.1(a)(2) and (3) (52 P.S. 1406.5a(a)(2) and (3)); 5.2(a)(1), (2),

and (3) (52 P.S. 1406.5b(a)(1), (2), and (3)); 5.2(b)(1) (52 P.S. 1406.5b(b)(1));

5.2(c) (52 P.S. 1406.5b(c)); 5.2(e)(1) and (3) (52 P.S. 1406.5b(e)(1) and (3));

5.2(f) (52 P.S. 1406.5b (f); 5.2(j) (52 P.S. 1406.5b(j)); 5.2(k) (52 P.S. 1406.5b(k));

5.4(a) (52 P.S. 1406.5d(a))(partial approval); 5.4(a)(1), (2) and (4) (52 P.S.

1406.5d(a)(1), (2) and (4)); 5.4(b) (52 P.S. 1406.5d(b)); 5.5(a) (52 P.S.

1406.5e(a))(partial approval); 5.5 (d), (e), and (g) (52 P.S. 1406.5e(d), (e) and

(g)); 5.6(a) and (b) (52 P.S. 1406.5f(a) and (b)); 6 (52 P.S. 1406.6))(partial approval); 9.1(a), (b), (c), and (d) (52 P.S. 1406.9a(a), (b), (c), and (d); Repeal of

Section 15 (52 P.S. 1406.15); 17.1 (52 P.S. 1406.17a); 18.1 (52 P.S. 1406.18a)

25 Pa. Code Section: 89.5, the definitions of the following terms: ‘‘dwelling,’’ ‘‘irreparable damage,’’ ‘‘material damage,’’ ‘‘noncommercial building,’’ ‘‘public buildings

and facilities,’’ ‘‘public water supply system,’’ ‘‘rebuttable presumption area,’’ ‘‘underground mining,’’ ‘‘underground mining operations,’’ and ‘‘water supply;’’ 89.33;

89.34; 89.35; 89.36; 89.141(a); 89.141(d)(2), (4), (5), (7), (8), (10) and (11);

89.141(d), (d)(3), (6), and (9)(partial approval); deletion of 89.142; 89.142a(a)

(partial approval) 89.142a(a)(1), (2), (3) and (4); 89.142a(b); 89.142a(c)(1) and

(2)(i) ‘‘ (v); 89.142a(c)(3) (partial approval); 89.142a(d) (partial approval);

89.142a(e); 89.142a(f)(1) (partial approval); 89.142a(f)(1)(i), (ii), (iv), and (v);

89.142a(f)(2)(i) (partial approval); 89.142a(g)(1) (partial approval); 89.142a(g)(2),

and (3); 89.142a(h) (1) and (2) (partial approval); 89.142a(i)(1) (partial approval);

89.142a)(i)(2), (j), (k), and (l); deletion of 89.143; 89.143a(a) (partial approval);

89.143a(b); 89.143a(d)(1) and (2) (partial approval);deletion of 89.144;

89.144a(a)(2), and (3); deletion of 89.145; 89.145a(a)(1)(i)–(vi); 89.145a(a)(2) and

(3); 89.145a(b)(partial approval); 89.145a(c); 89.145a(d); 89.145a(e)(1) and (2)

(partial approval); 89.145a(f)(1)(i)–(iv); 89.145a(f)(2); 89.145a(f)(3)(i) and (ii)(partial

approval); 89.145a(f)(3)(iii); 89.145a(f)(4); 89.146a(a) and (b); 89.146a(c) (partial

approval); 89.152(a)(1) and (3); 89.152(b); 89.153 (a), (b), and (c); 89.154(a)

through (d); 89.155(a), 89.155(b)(1) and (2) (partial approval); 89.155(b)(3) and

(4); 89.155(c) (partial approval).

4. Section 938.16 is amended by

adding paragraphs (hhhh) through

(bbbbbb) to read as follows:

§ 938.16 Required regulatory program

amendments.

* * * * *

(hhhh) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

section 5(b) of the BMSLCA (52 P.S.

1406.5(b)) to delete the reference to

section 6(a) of the BMSLCA and replace

it with a reference to 6(b) of the

BMSLCA.

(iiii) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

section 5.1(a)(1) of the BMSLCA (52 P.S.

1406.5a(a)(1)) to require the prompt

replacement of all water supplies.

(jjjj) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

section 5.1(b) of the BMSLCA (52 P.S.

1406.5a(b)).

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67065

(kkkk) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to delete

the phrase, ‘‘* * * where the

contamination, diminution or

interruption does not abate within three

years of the date on which the supply

was adversely affected’’ from section

5.2(b)(2) of the BMSLCA (52 P.S.

1406.5b(b)(2)).

(llll) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to delete

the phrase, ‘‘Wherever a mine operator,

upon request, has been denied access to

conduct a premining survey and the

mine operator thereafter served notice

upon the landowner by certified mail or

personal service, which notice

identified the rights established by

sections 5.1 and 5.3 and this section,

was denied access and the landowner

failed to provide or authorize access

within ten days after receipt thereof,

then such affirmative proof shall

include premining baseline data,

provided by the landowner or the

department, relative to the affected

water supply.’’ from section 5.2(d) of the

BMSLCA (52 P.S. 1406.5b(d)).

(mmmm) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

section 5.2(e)(2) of the BMSLCA (52 P.S.

1406.5b(e)(2)).

(nnnn) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

section 5.2(g) of the BMSLCA (52 P.S.

1406.5b(g)).

(oooo) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

section 5.2(h) of the BMSLCA (52 P.S.

1406.5b(h)).

(pppp) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the phrase, ‘‘and of reasonable cost’’

from section 5.2(i) of the BMSLCA (52

P.S. 1406.5b(i)).

(qqqq) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to make it

clear in section 5.3(a) (52 P.S.

1406.5c(a)) that agreements to replace a

water supply or provide an alternative

water supply must meet the

requirements established in the

definition of ‘‘replacement of water

supply’’ at 30 CFR 701.5 and that

compensation in lieu of restoration or

replacement of affected water supplies

is prohibited.

(rrrr) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to insure

the provisions of section 5.3(b) of the

BMSLCA (52 P.S. 1406.5c(b)) reflect the

Director’s decision on section 5.3(a) (52

P.S. 1406.5c(a)).

(ssss) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to make it

clear that section 5.3(c) of the BMSLCA

(52 P.S. 1406.5c(c)) cannot negate or

provide less protection than EPAct.

(tttt) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

section 5.4 of the BMSLCA (52 P.S.

1406.5d) to require the prompt repair

and compensation for structures

protected under section 720(a)(1) of

SMCRA and 30 CFR 817.121(c)(2).

(uuuu) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

section 5.4(a)(3) of the BMSLCA (52 P.S.

1406.5d(a)(3)) to remove the phrase, ‘‘in

place on the effective date of this

section or on the date of first

publication of the application for a Mine

Activity Permit or a five-year renewal

thereof for the operations in question

and within the boundary of the entire

mine as depicted in said application.’’

(vvvv) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

section 5.4(c) of the BMSLCA (52 P.S.

1406.5d(c)).

(wwww) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

section 5.5(a) of the BMSLCA (52 P.S.

1406.5e(a)) to make it clear that

operators are responsible for repair or

compensation to landowners of

structures damaged by subsidence from

underground mining operations.

(xxxx) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

section 5.5(b) of the BMSLCA (52 P.S.

1406.5e(b)).

(yyyy) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the following phrase from section 5.5(c)

of the BMSLCA (52 P.S. 1406.5e(c)),

‘‘* * * within six months or a longer

period if the department finds that the

occurrence of subsidence or subsequent

damage may occur to the same building

as a result of mining.’’ Pennsylvania

must also amend section 5.5(c) to insure

that written damage determinations

made by PADEP will take into account

subsidence due to underground coal

mining operations as required by

SMCRA. Finally, Pennsylvania must

also amend section 5.5(c) of the

BMSLCA to insure the timeframes for

investigation of claims of subsidence

damage are consistent with citizen

complaint procedures.

(zzzz) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the following phrase from section 5.5(f)

of the BMSLCA (52 P.S. 1406.5e(f)),

‘‘* * * within six months or longer or

such period as the department has

established or fail to perfect an appeal

of the department’s order directing such

repair or compensation.’’

(aaaaa) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the following two sentences from

section 5.6(c) of the BMSLCA (52 P.S.

1406.5f(c)): ‘‘Nothing herein shall

impair agreements entered into after

April 27, 1966, and prior to the effective

date of this section, which, for valid

consideration, provide for a waiver or

release of any duty to repair or

compensate for subsidence damage. Any

such waiver or release shall only be

valid with respect to damage resulting

from the mining activity contemplated

by such agreement.’’

(bbbbb) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to insure

the provisions of section 5.6(d) of the

BMSLCA (52 P.S. 1406.5f(d)) reflect the

Director’s decision on not approving

67066 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations

language in section 5.6(c) of the

BMSLCA (52 P.S. 1406.5f(c)).

(ccccc) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

section 6 of the BMSLCA (52 P.S.

1406.6) to comply with the provisions of

30 CFR 817.121(c)(5) regarding when,

and under what circumstances, the

regulatory authority must require

permittees to obtain additional

performance bond and the amount of

such bond.

(ddddd) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the definition of ‘‘de minimis cost

increase,’’ from 25 Pa. Code 89.5.

(eeeee) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the definition of ‘‘fair market value,’’

from 25 Pa. Code 89.5.

(fffff) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the phrase ‘‘securely attached to the

land surface’’ in the definition of

‘‘permanently affixed appurtenant

structures’’ at 25 Pa. Code 89.5.

(ggggg) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code 89.141(d)(3) to provide the

protections of 30 CFR 784.20(b)(5).

(hhhhh) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code 89.141(d)(6) to insure the

requirements of 30 CFR 784.20(b)(5) and

(b)(7) are met when occupied residential

dwellings and structures related thereto

and community or institutional

buildings are not protected by 25 Pa.

Code 89.141(d)(3) and they are

materially damaged but not irreparably

damaged.

(iiiii) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption amend 25

Pa. Code 89.142a(c)(3) to make it as

effective as 30 CFR 817.121(e), which

imposes on the regulatory authority the

obligation to require permittees to

modify subsidence control plans to

ensure the prevention of further material

damage in the cases where the initial

plan or operator’s actions fail and as

effective as 30 CFR 817.121(e) in

providing the authority to suspend

mining until such a plan is approved.

(jjjjj) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code 89.142a(d) to insure the

prevention or minimization of material

damage to occupied residential

dwellings and community or

institutional buildings.

(kkkkk) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

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

prompt repair or compensation to

landowners.

(lllll) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the phrase from 25 Pa. Code

89.142a(f)(1)(iii), which states, ‘‘***

or on the date of first publication of the

application for a coal mining activity

permit or a 5-year renewal thereof for

the operations in question and within

the boundary of the entire mine as

depicted in the application.’’

(mmmmm) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable to amend 25 Pa. Code

89.142a(g)(1) to require all underground

mining activities be conducted in a

manner consistent with 30 CFR 817.180.

(nnnnn) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the phrase from 25 Pa. Code 89.143a(c)

that states, ‘‘* * * within 6 months of

the date that the building owner sent the

operator notification of subsidence

damage to the structure * * *.’’

Additionally, the amendment must

remove the phrase, ‘‘within 2 years of

the date damage to the structure

occurred.’’

(ooooo) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

the sentences from 25 Pa. Code

89.143a(d)(3) that state, ‘‘* * * within 6

months of the date of issuance of the

order. The Department may allow more

than 6 months if the Department finds

that further damage may occur to the

same structure as a result of additional

subsidence.’’

(ppppp) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

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

(qqqqq) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code 89.145a(a)(1) to make it

clear that the requirement that survey

information need only be acquired to

the extent that it can be collected

without extraordinary efforts or

expenditures of excessive sums of

money, is only applicable when it

applies to inconveniencing landowners.

The amendment must remove the

provision that allows for water supply

surveys to be delayed until mining

advances within 1000 feet of a supply.

Finally, this section must also be

amended to require permittees to submit

the information required by 25 Pa. Code

89.145a(a)(1)(i)–(vi) that is necessary to

meet the provisions of 30 CFR

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

application for all existing drinking,

domestic, or residential water supplies.

(rrrrr) By February 25, 2002,

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to 25 Pa.

Code 89.145a(b) is required to be

amended to be no less effective than 30

CFR 817.41(j) in requiring prompt

replacement or restoration of water

supplies. Additionally, section

89.145a(b) is required to be amended, if

necessary, to ensure that the phrase

‘‘satisfy the water user’s needs and the

demands of any reasonably foreseeable

uses’ is consistent with the actual use

and the reasonably foreseeable use of

the supply, regardless of whether the

current owner has demonstrated plans

for the use.

(sssss) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code 89.145a(e)(1) to assure the

prompt supply of temporary water to all

landowners whose water supply has

been impacted by underground mining,

regardless of whether the water supply

is within the area of presumptive

liability.

(ttttt) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Rules and Regulations 67067

with a timetable for adoption to amend

25 Pa. Code 89.145a(e)(2) to require the

restoration of water quantity in

temporary water supplies to the same

level as permanent water supplies, as

noted in 25 Pa. Code 89.145a(f)(3).

(uuuuu) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code 89.145a(f)(1)(v) to make it

clear that that de minimis cost increases

for operation and maintenance of water

supplies are not to be passed to

landowners or water users.

(vvvvv) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code 89.145a(f)(3)(i) and (ii), if

necessary, to ensure that the phrase

‘‘satisfy the water user’s needs and the

demands of any reasonably foreseeable

uses’ is consistent with the actual use

and the reasonably foreseeable uses.

(wwwww) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code 89.146a(c) to the extent the

time frames for the Department’s

investigation are longer than those in

Pennsylvania’s approved citizen

complaint procedures.

(xxxxx) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

25 Pa. Code 89.152(a)(2).

(yyyyy) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

25 Pa. Code 89.152a(4).

(zzzzz) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to remove

25 Pa. Code 89.152a(5)(i).

(aaaaaa) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code 89.152a(5)(ii) to remove that

portion of the section allowing

compensation in lieu of restoration or

replacement of affected water supplies.

Additionally the amendment must make

it clear that agreements to replace a

water supply or provide for replacement

of an alternate supply of water must

meet the requirements established in the

federal definition of ‘‘replacement of

water supply’’ at 30 CFR 701.5.

(bbbbbb) By February 25, 2002

Pennsylvania must submit either a

proposed amendment or a description of

an amendment to be proposed, together

with a timetable for adoption to amend

25 Pa. Code sections 89.141(d),

89.141(d)(9), 89.142a(a), 89.142a(f)(1),

89.142a(f)(2)(i), 89.142a(h)(1),

89.142a(h)(2), 89.142(a)(i)(1), 89.143a(a),

89.143a(d)(1), 89.143a(d)(2),

89.143a(d)(3), 89.155(b)(1) and (2) and

89.155(c) to be no less stringent than

section 720(a) of SMCRA.

[FR Doc. 01–31614 Filed 12–26–01; 8:45 am]

BILLING CODE 4310–05–P